When Is a TV Not a TV?

When the U. S. Supreme Court says so, that's when.  Last Wednesday, June 25, the Court issued a split decision (6-3) against Aereo, a provider of over-the-Internet broadcast TV service which used a unique technology to get around the requirement to pay retransmission fees to program originators, as cable TV companies do.  Without such fees, Aereo's service was really cheap—as little as eight bucks a month—and over the last year or two the firm had expanded into several urban U. S. markets.  In response to the ruling, on Sunday June 28 Aereo's CEO Ken Kanojia pulled the plug on the service "temporarily," although it will be surprising if Aereo ever makes a comeback, at least in its present form.

For readers who missed my blog on Aereo last February 3, a little background is in order.  Copyright laws exist so that creators of original content won't starve to death while unscrupulous people copy or retransmit the content without paying for it.  It seems to this non-lawyer that there is a happy medium of copyright law between two extremes.  One extreme is that of no law at all, which stifles originality because nobody can make money doing creative stuff.  The other extreme is copyright control, by the originators, of everything in perpetuity, which leads to permanent monopolies that work against the interests of the consumer.  Copyright law is largely a federal matter, so the U. S. Congress is where it comes from, and the proper job of the courts, including the U. S. Supreme Court, is to interpret the law the way Congress intended.

When cable TV arose in the 1950s as a way of providing TV service for isolated communities beyond the reach of TV signals, the content providers (mostly the big three networks back in those days) were miffed, because here was a bunch of companies taking money from their customers for signals they didn't pay for.  In response, Congress amended the copyright laws in 1976 to make it clear that cable TV was a "public performance," legally speaking.  The basic idea is that if you as a content provider take somebody else's content and make it available to all comers, you are profiting from it and should compensate the parties that you got the content from.  Hence, the big retransmission fees that cable companies pay to content providers.  The only exception to this rule is the end user or consumer, for whom the whole system operates.  If you sit in your own house and watch an over-the-air broadcast on your own TV using your own antenna, then it's not a public performance, and you don't have to pay retransmission fees because you're not retransmitting.

It was Ken Kanojia's dream to take that exact situation, and just stretch it out technically while staying within what he thought was the letter of the law.  An Aereo subscriber was at the end of a long chain of technology that started with a paperclip-looking antenna at an Aereo "head-end."  Each head end had thousands of individual antennas, so that every active subscriber controlled a different antenna.  The signal the consumer selected was picked up by the assigned antenna, converted to digital form, and sent over the Internet to the receiver of choice—a phone or computer or iPad or what have you.  The effect, broadly considered, was not essentially different from what a cable TV company would do:  a lot of hardware delivering someone else's content to a lot of consumers.  But technically, each consumer controlled a virtual TV of his or her own, so Aereo claimed it wasn't like cable TV at all—it was just a whole lot of individual TVs controlled by individual consumers.  And therefore, Aereo didn't have to pay retransmission fees.

Naturally, the service providers hated this into the ground, and quickly got their lawyers to sue Aereo.  Back in February, the lawsuits were working their way up the legal ladder to the Supreme Court, which heard the arguments in April, and finally last week the Court issued its decision.

The basic argument of the Court's majority was what I would call the duck approach:  if it walks like a duck and quacks like a duck, it must be a duck.  If you ignore the technical insides of how Aereo provides its service and just treat it like a black box, it's not that much different from a cable TV provider.  Hence, Aereo has to pay up just like the cable companies.  With his whole business carefully tailored to the assumption that his firm would not have to pay such fees, Kanojia recognized that the jig was up, and shut it down.

Three conservative members of the Court—Alito, Thomas, and Scalia—sided with Aereo, but not because they think Aereo should be left alone to go about its business.  Even the dissenters agreed that what Aereo is doing smacks of copyright infringement, but the dissenters thought that the similarity argument with cable TV was a weak one.  The dissenters are concerned that the adverse decision against Aereo will stifle technological innovation, and wanted to see a more technically savvy argument as to exactly what Aereo was doing wrong besides looking broadly like a cable TV company.

They may be right, but frankly, I'm not sure Aereo's kind of innovation is the sort we need.  Remember, if it weren't for lawyers and copyright laws, Aereo never would have designed their system the way they did in the first place.  It was a brilliant technical dodge designed to evade the retransmission fees by configuring the system to imitate a legal technology.  Unfortunately for Aereo, a majority of the Supreme Court justices didn't think the technical details made that much difference.  And when all is said and done, I tend to agree with them.

It seems to me that we need people like Ken Kanojia engaged in technical challenges that really matter, rather than spending his time devising clever ways to avoid legal obstacles.  I'm sure Kanojia believes that what he was doing was a true service to the consumer, but at least in the U. S., his Aereo venture looks like it has made its final performance—public or otherwise. 

Sources:  I consulted these news items on the Supreme Court Aereo decision: http://www.huffingtonpost.com/2014/06/28/aereo-suspension-operatio_n_5539559.html

and http://www.businessinsider.com/aereo-supreme-court-ruling-2014-6.  As mentioned, I last blogged on Aereo on Feb. 3, 2014.

The Two-Edged Sword of Email Archives

Lois Lerner, former head of the U. S. Internal Revenue Service Exempt Organizations Division, is a lawyer by training.  Don't forget that fact, which is significant for what follows.  When her division came under fire for selectively persecuting conservative organizations with everything from delays in processing tax-exemption applications to leaks of confidential donor lists, she refused to testify before a House of Representatives investigative committee, claiming the Fifth Amendment's guarantee against self-incrimination.  The House later voted to hold her in contempt of Congress.  And more recently, investigators working the scandal have learned that Ms. Lerner's emails for a critical period ending in 2011 are probably lost because the hard drive she had them on crashed and was thrown away.  Besides throwing a big monkey wrench into the investigation, this fact highlights a question of interest to engineers who design information systems and everyone who uses email:  what do you do with old emails?

Anyone reading this blog is very likely a daily user of email.  Email has been a routine part of life for so long that it is hard to imagine a time when it was available only to a select few computer scientists and physicists in the 1970s.  The transition year for my use of email was 1993.  Here is an excerpt from my journal for Oct. 2 of that year:  "This is the year I have gone whole-hog into email.  Before . . . a year ago I hardly ever used it, but now it’s a rare day I don’t get at least three or four email messages, and send almost that many."  Ah, the good old days.

Most emails, like most conversations, are fleeting in significance.  Once the meeting is set up or the news is shared, the bits representing the message have served their purpose, and you face the problem of what to do with them.  Some people just let the stuff accumulate in their inboxes as close to forever as the operating system permits, using search engines to locate the occasional old email that needs to be found.  A subset of these folks end up declaring "email bankruptcy," which is a term attributed to Lawrence Lessig for a person who gets overwhelmed by email in a given account, ignores it while it piles up to intimidating proportions, and then flushes the whole thing.  Others keep old emails until some external factor intervenes, like a hard-drive crash or a notice from IT support saying their inbox is full.  And then there are the email packrats like me.

Once a month, I go through my email inbox and pitch emails I no longer need.  This is the majority of them, because even after my university's spam filter has disposed of the worst offenders, I still get hundreds of emails every month from conferences I will never attend, organizations I will never join, and product and service providers whose products or services I will never need.  When I encounter an email I would like to keep, I sort it into a folder in my Mac Mail application, which physically resides on my computer.  (No email clouds for this guy—not yet, anyway.)  This tedious task takes me the better part of an morning or afternoon each month, but at the end of it I have the satisfaction of a clean email inbox and the knowledge that I can find any important emails I need without using a search engine, which I've never found that helpful for emails anyway.  Together with regular backups to an external hard drive, this process allows me to locate, or at least have possession of, any email I have received going back as far as 1998, and earlier if I cared to dig up some legacy email software.  It's not quite true that I still have the first email I ever received, but I've got some pretty old ones in there.

Now if I were a lawyer, this clinging to old emails would be unwise behavior on my part.  Why?  Because, as a patent lawyer once told me when I asked whether I should email him or phone him about a delicate and confidential matter, "emails are discoverable, and phone conversations aren't."  "Discoverable" means if somebody sues or indicts you and sends you a subpoena, they can legally grab documents of all kinds, including emails.  But if you happened to have a phone conversation that wasn't recorded, there's nothing to discover, and they have to use oral questioning to grill the participants' memories, which can be conveniently feeble at times. 

It is not for me to say whether Lois Lerner's conveniently-timed hard drive crash and disposal were just the normal way the IRS did business, or whether there were more nefarious things going on.  Experience has taught me that for every bad thing that happens due to evil intent, six or eight bad things happen due to simple incompetence.  It turns out that the IRS's email system managers kept tapes of all emails, but these were routinely erased and reused every six months because they were backups kept for emergencies, not archives retained for permanent storage.  Investigators have turned up thousands of Lerner's emails preserved on the machines of people she sent emails to, so that is something, but the electronic records will never be as complete as they might have been if Lerner had been more of an email packrat.

But if she had been, she probably would have gone into some other field than law, like engineering, and nobody would care about her old emails.  Lawyers know that old records of all kinds, not just emails, can be both helpful and harmful.  The IRS people in charge of email may have made a considered judgment not to keep old emails longer than a certain time.  Or it may have just been up to the individual employee.  At any rate, the lesson from this situation is that old emails are two-edged swords.  If you get rid of them, your life is simpler, but you may be called to account for doing something like purging old emails, that you didn't consider was wrong at the time.  But if you keep them, they may come back to haunt you.

Sources:  I referred to these news stories describing the details of Lois Lerner's hard-drive vicissitudes:  from Politico at http://www.politico.com/story/2014/06/irs-lois-lerner-emails-108044.html from USA Today at http://www.usatoday.com/story/news/politics/2014/06/17/how-the-irs-lost-lois-lerners-e-mails/10695507/, and from National Review Online at http://www.nationalreview.com/article/362667/investigation-ids-irs-leaker-eliana-johnson.  I also referred to the Wikipedia articles on email, Lois Lerner, and the 2013 IRS scandal.

To Monetize or Not To Monetize—Reader Responses Requested

One of the more prominent concerns in engineering ethics is the improper influence of money.  It's impossible to do engineering of any magnitude without money being involved somehow, because doing work for pay is what engineering is mostly about.  Without meaning to, G. K. Chesterton provided one of the best and most succinct definitions of engineering I've ever come across:  "the application of physical science to practical commerce."  And commerce involves money, so money changes hands in most engineering work.

It's how money changes hands, and who knows about it, that can lead one into an ethical quagmire.  Two items in the IEEE's Code of Ethics address this problem.  In its code, the IEEE charges its members "to avoid real or perceived conflicts of interest whenever possible, and to disclose them to affected parties when they do exist" and "to reject bribery in all its forms."  Getting paid for engineering work is not a problem.  But if an engineer gives the impression of doing something on an objective basis—selecting competing bids for an engineering project based on technical criteria, for instance—but in fact has been secretly influenced to favor one party over others by means of money or its value equivalent paid by that party, then you have a conflict of interest, at least, and possibly a case of bribery.  And while engineers of all stripes should be careful about such things, one who writes a blog on engineering ethics must be especially cautious.

Preserving not only objectivity, but the appearance of objectivity, is the main reason that since I began this blog about eight years ago, I have kept it as non-commercial as possible.  It is brought to you by Google, a notably profit-making enterprise, but I pay them nothing and they pay me nothing, unless you count the value of the technical facilities they provide me to enter the blog text into their system every week.  In exchange, of course, they hope that my blog encourages people to use their search engine, and I suppose in that way I'm responsible for a vanishingly small fraction of Google's profit.  But other than that very tenuous exchange, I get no monetary or economic benefit from writing this blog.  In fact, on occasion Google has come in for its share of criticism in this space, and nobody has ever pulled my plug that I'm aware of. 

I am now considering an experiment in what is called "monetizing."  Basically, I would tell Google that it's okay to put some amount of advertising on my blog.  Some aspects of this would be under my control, I think, although I haven't pursued it far enough to know for sure.  I do know that if I want to stop it after a while, I can do that, so if it doesn't work out or isn't worth the annoyance, I can always go back to being non-monetized. 

Before I take this step, I am checking with you, my readers, as to your thoughts and opinions on the question of whether I should try monetizing this blog.  I am under no illusions that I am addressing a vast multitude.  The last time I checked, there were a few dozen people who follow this blog regularly, and more who find it via search engines and so on for one-time views on certain topics.  But whether you've been following it for years or just came across it today, I am grateful for your attention, which is so valuable in this media-overload era, and do not wish to do anything that would turn off or disappoint numbers of you. 

So I am asking for your input.  I promise not to do anything about monetizing at least through the end of June.  In turn, if you have any opinion about this—favorable or unfavorable—please let me know in the next week or so.  If you wish to make your thoughts public, use the comment space below this blog (rather unfortunately labeled "NO COMMENTS" until somebody clicks on it and makes the first one—maybe I can fix that too, and I'd get more comments).  Or if you'd prefer to send me a private response, you can email me at kdstephan@txstate.edu.  While this blog is not a democracy and I don't promise to do whatever the majority says, I will certainly take every response into consideration in deciding whether or not to proceed with this experiment.  And if the response is primarily negative, it's unlikely I will try it.  I don't need money that badly, and if monetizing would turn off a lot of readers, it's a bad idea.

If I do proceed with it, I will do my best to preserve the objectivity which I hope has been a characteristic of this blog so far.  I came across a useful philosophical distinction the other day between two types of objectivity:  psychologicaland rational objectivity.  Psychological objectivity is the state of being neutral on a topic, of having no strong opinion one way or another.  Typically, we can be psychologically objective only about things we know little about, or haven't thought about deeply.  On the other hand, rational objectivity is the ability to distinguish between good and bad arguments on a topic, and to believe a thing for reasons that are genuinely good ones.  Rational objectivity has been my goal in this blog from the start, and I plan to keep it that way even if I receive some money from advertisements that I may not be psychologically objective about.  For that matter, I'm not psychologically objective about engineering ethics itself:  I care deeply about it, and I'm biased in favor of it.  But that doesn't prevent me, I hope, from being rationally objective about it and judging various arguments on their logical and evidential merits, rather than just going with my feelings about a question.

If you respond, I'm not asking you to be psychologically objective.  Rationally objective would be nice, but I won't insist on that either.  Unless it makes no difference to you, consider letting me know your opinion on monetizing this blog by June 30.  After that I'll summarize the responses and announce the next step:  to monetize or not to monetize?

Sources:  In a discussion of American character in Generally Speaking(London:  Methuen, 1928, p. 63), G. K. Chesterton said that Americans favored action over contemplation and excelled in the application of physical science to practical commerce.  The distinction between psychological and rational objectivity is made in J. P. Moreland and W. L. Craig, Philosophical Foundations for a Christian Worldview (Downer's Grove, Ill.:  InterVarsity Press, 2003), p. 150.  The IEEE Code of Ethics can be found at http://www.ieee.org/about/corporate/governance/p7-8.html.