Category Archives: Constitution

The Server Test and Copyright Infringement

In a recent article on Slate, Lance Koonce talked about his recent experience of having a video he tweeted of the June 10th helicopter crash in NYC go viral. In his article, he referenced his experience as a lawyer defending against charges of copyright infringement for using an embedded tweet. 

Technologists often accuse judges and legislators of not understanding science and technology. I don’t disagree with this charge; I’m in the middle of writing something about mistakes made even at the Supreme Court level. 

However, I think technologists sometimes fail to understand the human element in how people actual use and perceive the technology. 

The particular case Koonce references, media sites embedding a tweet with picture that was originally taken by Justin Goldman. The issue partially depends on what’s known as the “Server Test,” which basically says that you can commit copyright infringement if you copy an image and place it on your server. If instead, you merely provide a link to that image on someone else’s server, you’re in the clear.

Let’s say that I want to post image that I don’t have the rights to use, like this image of a Wikipedia server, which I copied from Wikipedia1I’m actually allowed to use this image. A significant portion of the images on Wikipedia have some version of Creative Commons license, which allows others to use them. In this case, the image has CC BY-SA license, so I can use it as long as I give credit (the image is by Victor Grigas) and allow sharing of the image. Unlike many sites, Wikipedia also explicitly allows hotlinking to their images; so I’m not even violating the terms of use by linking to the image on their site..

I could copy that image, upload it to the server that hosts my website, and post it from there. It might look something like this:

Wikimedia Foundation Server

Image stored on my server

Alternatively, rather than copying the image, I could simply link to the image on the website of original owner. And then it would look like this:

Image embedded by linking to Wikipedia

So, the reader experienes no difference. But as far as I can tell, they’re treated very differently by copyright law, at least according to the ninth circuit. The more recent court decision in the second circuit comes to a different conclusion.

Now, the actual Second Circuit case, Goldman v. Breitbart News Network, LLC, involved an embedded tweet, so it would look something like this:

Image on Twitter, in an embedded tweet

The tweet at the center of this case wasn’t made by Goldman himself, but by another person who didn’t have permission to use the image, although that’s not directly relevant to my concern about the server test.

So I have three version of the exact same image shown on this page. The first two look exactly the same to the reader. The server test makes it awfully easy to use another creator’s work, not credit them, and be legally okay. That doesn’t seem right.

Am I missing something? I certainly respect a lot of the people who support the server test, but it doesn’t actually seem to reflect how people actually view a website.

Footnotes   [ + ]

1. I’m actually allowed to use this image. A significant portion of the images on Wikipedia have some version of Creative Commons license, which allows others to use them. In this case, the image has CC BY-SA license, so I can use it as long as I give credit (the image is by Victor Grigas) and allow sharing of the image. Unlike many sites, Wikipedia also explicitly allows hotlinking to their images; so I’m not even violating the terms of use by linking to the image on their site.
Brain

Using your brain

Building on the “brains” part of my earlier post, one of the issues that I find so striking is the meaningless of a ban at six weeks and what this reveals about the lack of knowledge of the world. 

I can imagine a hypothetical reasonable person who thinks about a six-week abortion ban and says, “six weeks…that’s plenty of time to realize you’re pregnant, decide what to do, and then have an abortion if you want.”

But, of course, people don’t know they might be pregnant on day 1. Pregnancy is measured from the last menstrual period, and it’s a missed period that may be the sign of pregnancy. So, that’s four weeks in. 

“Okay,” my hypothetical reasonable person says to themselves, “that still leaves two weeks to think about what to do and get an abortion.” 

But most people don’t discover they’re pregnant until 4 to 7 weeks. For many women, under completely normal circumstances, six weeks will pass before they even try to determine if they are pregnant. 

Some women may not keep track of the time between their periods, especially if their periods don’t happen in a precise 4-week cycle. On average, a woman gets her period every 24 to 38 days (38 days happens to be just short of 6 weeks).  Irregular periods are particularly common for younger women, or women who have recently stopped using the pill.

“Gee, so maybe six weeks doesn’t actually mean a lot for many people who might get pregnant, but I’m going to ignore that and believe that women will know at four weeks,” goes my ever less reasonable hypothetical person. “So they can still go get an abortion.”

If only it were that easy. Because of restrictive and unnecessary state laws, someone seeking an abortion may need multiple trips to obtain an abortion. There are 27 states that require a waiting period between counseling and an abortion; 14 states require that counseling be in-person and be separated from the actual abortion, necessitating two separate trips.

And those trips may be to a distant facility, because TRAP laws and other pressures have resulted in the closing significant numbers of abortion facilities. Kentucky went from 9 clinics to 1; Louisiana went from 17 to 3; Ohio went from 45 to 10.

So, for many, a six-week abortion ban is as good a complete ban. In order for this not to be true, depending on where one lives, they must:

  • Realize they’re pregnant
  • Determine what to do, often in consultation with loved ones
  • Get the resources to pay for the abortion as well as the travel to a perhaps distant facility
  • Take time off work, perhaps twice
  • Travel twice, or stay overnight
  • Actually have the abortion

Of course, it could all be a cynical ploy to appear to do something other than a total ban while not explicitly labeling it so.

The US Constitution

Josephine Wolff “profoundly misunderstands” biometrics and the fifth amendment

In her recent article on Slate, Josephine Wolff slams Judge Kandis Westmore’s ruling that, in part, gives Fifth Amendment protection for biometrics (like fingerprints or facial recognition) when used as a password for cell phones.

Westmore’s ruling does appear to break new legal ground and I don’t know if it will hold up (assuming it’s appealed) or if other judges will issue similar rulings. However, to claim that Westmore doesn’t understand the Fifth Amendment goes a little too far. 

In her ruling, Westmore takes take the admonition from Kyllo and Carpenter seriously, that courts “must take account of more sophisticated systems that are already in use or in development.”

As others have suggested, Carpenter may significantly change how US courts view technology. See Paul Ohm’s argument that Carpenter (almost) rids us of the third-party doctrine (to which I say good riddance).

Wolff compares a cell phone to a safe, a metaphor I’ve seen used other places. As she rightly states, the Fifth Amendment prevents the government from compelling you to tell them the combination to the safe, but they can still use “jackhammers, drills, and explosives” to break into it.

Broken Safe
Photo by infomatique

But that’s not the right metaphor. The argument isn’t that the government can’t crack your cell phone. They can use whatever tools at their disposal to unlock the phone themselves.

But just like they can’t force you to unlock the safe yourself (either by telling them the combination or forcing you to do it yourself), they can’t force you unlock your cell phone.  Current law makes the distinction between compelling you to type in your password and placing your finger on the phone. Westmore says that distinction doesn’t makes sense, given the advances in technology.

I think that’s the right call. More importantly, it’s logical extension of Carpenter and to simply dismiss it as an error in understanding the Fifth Amendment drastically understates Carpenter’s importance and does an injustice to Westmore’s ruling.

Arguing about Confederate Statues and History

Confederate Statue photo
Photo by Ron Cogswell

Much has been made about the relatively high public support for keeping Confederate statues. For example, the Reuters/Ipsos poll found that the majority (54%)of Americans favor keeping the statues, while only a minority (27%) want them removed. A number of explanations have been suggested for why such a significant portion of Americans support keeping the statues.
⁃ These represent a part of our history
⁃ They’re a symbol of Southern pride
⁃ It’s just coded racism

But if we want to remove these statues and monuments (and I’m certainly on this side), it’s important to understand why there is so much opposition to doing so and how one could counter that opposition.

Tom H.C. Anderson of the text analytics software company OdinText ran a nice survey, analyzing open-ended responses to try to understand how people explain their support for keeping or removing the statues. He first asked if Confederate Civil War Monuments should be allowed in the US.1 Following this, he gave people an open-ended question, asking why or why not.

For the three-fifths (61%) who said allow the statues, nearly all of the respondents explained this by saying something about our history. So, if keeping the statues is about maintaining our history, what happens if we explicitly make a statement out protecting history while still removing statues from public places. That should increase support for this action.

One survey, by the Democratic-leaning Public Policy Polling supports this interpretation. They asked specifically asked about support or opposition to relocating to museums or other locations where they can be placed in historical context. This was the only poll I found that found a majority supporting removal (58% supporting relocation, 26% opposing).

However, I don’t think most people really consider moving them to museums, so I wanted to tease apart the issue of how one might remove the statues. I ran my own survey, using Google Consumer Surveys,2 asking the following question:

Which best represents your opinion about Confederate statues and monuments in public places?3

  • They should remain where they are
  • They should be moved to a museum
  • They should be completely removed

When presented with these three choices, people still chose “remain” most frequently, but it was no longer the majority option, but a plurality. Instead, the combination of moving to a museum or removing completely was the majority choice. See table 1, below.

Answer ChoicePercent
Remain44%
Moved to a museum34%
Removed completely22%

For those that really see statues as representing an important part of history and want them to be preserved for that reason, they now have a way to express that.

I take two key ideas away from this:

  1. Framing the argument: Those who want the statues removed (and I count myself among them) can more effectively frame the argument by including the concept of preserving history (and setting the context). There are some (although perhaps a small percentage) who really believe that it’s about history and they can (perhaps) be won over. And those that are using the argument of preserving history as a pretext will have to come up with a darned good counter-argument when removing (or rather moving) the statues is framed explicitly in terms of preserving that history.
  2. Evidence that “history” is just a pretext: A plurality (and close to a majority) still said that the statues should remain, rather than placed in historical context. Because they could have chosen to say move to a museum and didn’t do so, it suggests to me that many people who say history, don’t really mean that. Instead, it’s about, in their mind, honoring heroes fighting for a noble cause, even if they won’t acknowledge that the “noble” cause was slavery, the owning of other human beings.

A quick diversion on the history of these statues and monuments: these were largely erected between 1900 and 1915, when Jim Crow laws dominated after attempts at integration following reconstruction and leading up to the rebirth of the KKK in 1915. The United Daughters of Confederacy put up a huge portion of these monuments and worked to promote a revisionist history of the South.

A second, but smaller peak occurred during the 1960s, during the civil rights era, especially in the naming of schools after Confederate politicians and soldiers.

In other words, these statues, monuments, and schools weren’t put there to celebrate what happened in 1865 but promote White supremacy and attack the civil rights of Blacks at that time.


  1. I do have some issues with this framing of the alternatives. The “should be allowed” phrasing suggests a ban on such monuments, which some people would see as running counter to the American ideals of freedom and liberty.
     
  2. Google Consumer surveys attempt to match the overall US internet population through the use of stratified sampling and then weighting at the end. Google uses “inferred” data on gender, geographic distribution, and age distribution, through respondents’ browsing history (DoubleClick cookies for age & gender and IP address for geography). They then attempt to match this inferred data to national demographics from the US Census Current Population Survey (CPS). Because it matches the US internet population (now about 87% of the total US adult population), the results skew somewhat younger, higher in income, higher educational attainment, and less rural. In addition, there’s no information on race/ethnicity, which would have been particularly useful for this question. Not surprisingly, Whites and Blacks, on average, respond very differently to this question (see the Reuters/Ipsos poll referenced above). 
  3. The survey ran between 24 August and 26 August, with 384 respondents, for a margin of error of ±5%. 
Hand-painted "Vote" sign

Polling and voter fraud

A recent Morning Consult/POLITICO poll indicated that a plurality of voters think that Donald Trump, not Hillary Clinton was helped most by voter fraud. According to the poll, 35% of respondents think voter fraud helped Donald Trump and 30% think it helped Hillary Clinton. Only 18% indicated that no voter fraud occurred (another 17% said they didn’t know or had no opinion).

That’s an interesting result and, in some ways, runs counter to Trump’s narrative of the popular vote. If voter fraud helped him more than it helped Hillary Clinton, then it can’t be responsible for his being a loser in the popular vote. He just lost.

But in a more important way, it confirms Trump’s and the Republican’s narrative about wide-spread voter fraud. Regardless which candidate they think it helped in this past election, if the general public believes voter fraud is pervasive, it becomes much easier to enact legislation to fight this non-existent problem. And the problem does not exist. As nearly every credible study has shown, incidence rates of voter fraud are just infinitesimal (see the Brennan Center’s terrific report for an excellent summary of the evidence).

But the polling itself, and the reporting of it raises some concerns for me. The Morning Consult article on the results does lead with the sentence, “President Donald Trump has insisted, without evidence [emphasis added], that the 2016 election was rife with illegal voting…” But that statement could be interpreted just that Trump himself provided no evidence, not that no evidence for voter fraud exists.

While it’s true that Trump has provided no evidence, any story on this issue, including reports of survey results such as this, should go further and affirmatively state that evidence for significant in-person voter fraud does not and could not exist, because you can’t provide evidence for something that doesn’t actually occur.

I’ll go even further and suggest that an article on suggestions of voter fraud should include reference to the much more significant issue of voter suppression. It, after all, does exist. Since the wave election of 2010 and after the 2013 Shelby County v. Holder Supreme Court case, 20 states have passed laws to restrict voting. More importantly, these laws affect Black, Hispanic, and Asian voters at significantly higher rates than White voters.

Woman holding sign that says "Voter Suppression is Unamerican"
Voting Rights March on 10 December 2011 in NYC

Brendan Nyhan and others have researched and discussed the difficulty of challenging false information, and how attempts to rebut such misinformation can lead to a “backfire” effect. When attempt to rebut a false statement, one can actually reinforce those falsehoods with those who are motivated to believe the incorrect facts because the falsehoods support their world view. Instead, it may more effective to to frame your rebuttal in an affirmative way, rather than directly counter the false information.

This leads to my broader concern about this poll. When one asks about issues for which clear answers exist, what is our responsibility as researchers? We can study perceptions of voter fraud and we can report on what our respondents believe, but we can’t let that stand alone. But as I’ve just stated, when reporting the results, we must include the reality of the situation (e.g., widespread voter fraud does not exist; almost no cases of in-person fraud have been uncovered). Otherwise, we risk contributing to the perpetuation of false information.

But what about within the poll itself? Do we have any duty to our respondents to correct knowingly false information? Clearly, we wouldn’t want to bias the answers, but at the end of the survey, do we connect respondents to the true information? I don’t have good answers on this, but it’s an important question to consider.

Associations and Professional Societies Respond to Trump Immigration & Refugee Ban

Numerous non-profit professional and trade associations and other professional societies have responded to Trump’s ill-formed and unconstitutional1 Executive Order banning refugees and immigration from seven predominately Muslim countries. These associations and societies serve to bring together professionals in their fields of interest through conferences, publications, certifications, and so on. Given their missions, it’s not surprising that many of them have been outspoken about how the open and free flow of information and educated professionals strengthens the United States, not weakens it.

Highlights of Responses to the Executive Order

On 31 January 2017, 164 (at last count) professional scientific, engineering and education societies, national associations, and universities signed an open letter to Donald Trump urging him to rescind the order. Signatories include organizations such as the American Association for the Advancement of Science, the American Chemical Society, the Vision Sciences Society; as well was major research universities including Harvard, Rutgers, Yale, and others.

In part, the statement says that the groups are “…deeply concerned that this Executive Order will have a negative impact on the ability of scientists and engineers in industry and academia to enter, or leave from and return to, the United States. This will reduce U.S. science and engineering output to the detriment of America and Americans.”

More than 27,000 individual academic supporters have signed a petition against the Executive Order, including more than 20,000 faculty members, 51 Nobel Laureates and 572 members of the National Academies of Sciences, Engineering, Arts.

American Association for the Advancement of Science
AAAS seeks to “advance science, engineering, and innovation throughout the world for the benefit of all people.” Based in Washington, DC, AAAS has over 120,000 members in 90 countries in all fields of science and mathematics.

science photo
Photo by Kingsway School

In addition to being a signatory to the letter above, AAAS released an earlier statement calling on “…President Donald Trump to consult with the world’s largest general scientific organization to find ways to balance the nation’s necessity for the free flow of international scientific talent while safeguarding national security.” In addition, they’ve sent out member recruitment emails using this issue to encourage people to join AAAS, with the tag line “Science has no borders.”

American Society of Association Executives (ASAE)2
ASAE serves those who work at associations, large and small, from technical fields such as American Institute of Physics, to retailers like the The American Specialty Toy Retailing Association. In other words, it’s the association for those working at associations. Based in Washington, DC, ASAE has about 21,000 members.

In their response, “ASAE Responds to Trump’s Travel Ban”, ASAE President and CEO John Graham, CAE states “ASAE urges the administration to clarify the intent of this order and confirm our nation’s commitment to equality and humanitarianism.”

IEEE3
IEEE is the world’s largest technical professional organization dedicated to advancing technology for the benefit of humanity. IEEE has more than 420,000 members in over 160 countries in the fields of electrical and electronic Engineering, computing, biomedical engineering, and many other technical fields. IEEE’s main office is in Piscataway, NJ.

2017 President Karen Bartleson, in a statement released on 2 February 2017, states, “[IEEE] believes that governments of all countries must recognize that, in a world of increasing global connectivity, science and engineering are fundamental enterprises, for which openness, international collaboration, and the free flow of ideas and talented individuals are essential to advancement.”

American Psychological Association (APA)4
American Psychological Association (APA), based in Washington, DC, is the largest scientific and professional organization representing all fields of psychology in the United States, from such areas as clinical psychology, social psychology, behavioral neuroscience, and so on.

In a statement released 1 February 2017, APA says that the “Trump Administration Orders Pose Harm to Refugees, Immigrants, Academic Research and International Exchange, According to Psychologists.”

Association for Computing Machinery (ACM)
ACM has members in all areas of computing, software, hardware, AI, networking, theory, and so on. Headquartered in New York City, ACM has more than 100,000 members with chapters in more than 50 countries.

In their statement, ACM, like other associations, expresses how science requires the open exchange of ideas. “Such practice, in all its aspects, requires freedom of movement, association, expression and communication for scientists.”

Midwest Political Science Association (MPSA)
Based in Bloomington, IN, MPSA is dedicated to the advancement of scholarship in all areas of political science. It has over 8,000 members in more than 100 countries.

In addition to signing the letter referenced above, MPSA has released two other statements about the ban. The first calls on Trump to rescind the Executive Order and the second talks about how the MPSA Conference will address the issue (such as allowing presenters from the seven countries present virtually) and lists other ways for those in the political science community to get involved in the issue.

The Gerontological Society of America (GSA)
The GSA is the largest interdisciplinary organization in the world devoted to the scientific study of aging. It has 5,500 members, 18% of which are outside the US and is based in Washington, DC.

In their statement, GSA points out that all six Americans who won Nobel prizes last year were immigrants. Further, they say that Trump’s Executive Order “…threatens the free flow of scientific information by limiting interaction among scientists. Such restrictions are not consistent with GSA’s commitment to open collaboration and communication between researchers.

Congress shall make no law respecting an establishment of religion…

Photo by Kevin H.


  1. See article by David Cole, ACLU Legal Director, on how the Executive Order violates the Establishment Clause of the First Amendment. 
  2. Disclosure: I’m a member of ASAE and have served as a volunteer, most recently as Chair of their Research Committee. 
  3. Disclosure: I work at IEEE but had nothing to do with their public statement on the Trump Ban. Furthermore, I do not speak on behalf of IEEE and all writing here (and elsewhere on this blog) is my own personal opinion. 
  4. Disclosure: I’m a former member of APA.