Month: October 2014

Shorter Court Filing: Socialize Our Losses, and Privatize Our Gains

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Various players in companies rescued by the US Treasury have taken to filing lawsuits in an attempt to get a share of the profits after the bailouts:

Fannie Mae and Freddie Mac (FMCC) plunged in New York trading after investors including Bruce Berkowitz’s Fairholme Capital Management LLC lost a legal bid yesterday to force the bailed-out companies to share profits with private shareholders.

Fannie Mae fell 29 percent to $1.92 at 11:10 a.m. Freddie Mac dropped 26 percent. Their preferred shares, which drew investments from private-equity and hedge funds, also tumbled, with one series plummeting 54 percent. The mortgage giants had surged for more than two years on speculation that shareholder rights to the earnings could be restored.

The investors sued for breach of contract over allegedly promised dividends and liquidation preferences, and what they called an illegal “taking” under the U.S. Constitution. U.S. District Judge Royce Lamberth rejected their claims, finding that the government is allowed under a 2012 amendment to the companies’ bailout agreements to sweep “nearly all” profits from Fannie Mae and Freddie Mac to the U.S. Treasury.

Here is the crux of what they were looking for:

Fannie Mae and Freddie Mac each surged more than 1,000 percent in 2013 on speculation that courts or lawmakers would allow private investors to share in the companies’ profits, which have rebounded along with the housing recovery. The mortgage-finance firms extended their rally through July, then lost their gains for the year in September, when they each fell more than 30 percent.

There you have it.

The vultures figured that they could buy worthless shares, and convince the Congress of the courts to give them free money at the taxpayer’s expense.

Lamberth just told them to go pound sand.

BTW, it ain’t just these parasites trying to do this.

Like a bad penny, Maurice “Hank” Greenberg is back:

The government today entered its third day of trial defending its $182 billion rescue of American International Group Inc. in another Washington federal court. Maurice “Hank” Greenberg’s Starr International Co., the insurer’s biggest shareholder when the financial crisis struck, claims the assumption of 80 percent of AIG stock by the U.S. in September 2008 in exchange for an $85 billion loan amounted to an unconstitutional taking of private property.

The timeline here is pretty clear:

  • Hank Greenberg runs AIG.
  • Hank Greenberg is kicked out of AIG for dodgy accounting.
  • AIG implodes, in large part as a result of the sh%$ Greenberg did.
  • AIG is bailed out. (More accurately, the counter-parties are bailed out, but that’s another story)
  • Greenberg files a lawsuit to get money for the company that he had a hand in destroying.

Seriously.  This sort of sh%$ is why Eric “Place” Holder will be remembered by history for his refusal to prosecute the banksters.

This will happen, because the people who wrecked the world still don’t feel that they have done anything wrong.

Your Daily Schadenfreude

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The draconian voting restrictions in Arkansas have resulted in the Republican Attorney General being dropped from the voter roles:

UC Irvine law professor Rick Hasen says this development, which he describes as coming from the “Irony Dept”, is just “too delicious”.

Leslie Rutledge, the Republican candidate for Attorney General in Arkansas, has been discovered to have been registered to vote in multiple states in addition to Arkansas, and even voted by absentee ballot in Arkansas’ general election in November of 2008 — after she had registered to vote in Washington D.C. [PDF] in July of the same year.

According to the Arkansas Democrat-Gazette, Rutledge has now been removed from Arkansas’ voting rolls by the Pulaski County Clerk, after he confirmed that she was registered to vote in D.C., and possibly Virginia. The removal from the rolls may also lead to her ineligibility to be elected to office.

“For the AG candidate of the party who likes to scream about voter fraud to be registered in two (or three) places at once is ironic and amusing on its own,” writes Matt Campbell of Arkansas’ “Blue Hog Report”, which was on this story from the jump.

“However, the bigger implication is Article 19, section 3, of the Arkansas Constitution,” he adds, which states: “No persons shall be elected to, or appointed to fill a vacancy in, any office who does not possess the qualifications of an elector.” If Rutledge is not registered in Arkansas, she no longer “possess[es] the qualifications of an elector.”

I don’t expect her to be prevented from voting, nor do I expect her to be dropped from the ballot, because, after all, “Silly rabbit, voter suppression is for Democratic voters.”

I am sure that the courts will rule that way.

Still, I will enjoy a few minutes of pleasure at Ms. Rutledge’s discomfiture.

Judge Rules for Gitmo Detainees on Force-Feedings

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The Obama administration has used every possible effort to avoid a public hearing on the Guantanamo hunger strikers, but Judge Gladys Kessler is having none of it:

Videos showing force-feedings of a hunger-striking Guantanamo detainee must be publicly aired, a federal judge ordered this afternoon.

Lawyers for Syrian Abu Wa’el Dhiab, who has been held at Guantanamo since 2002 and has been refusing food for the last 18 months, have characterized the footage as “extremely disturbing.” Dhiab is asking the U.S. District Court in Washington D.C. to stop the military’s practice of forcibly removing him from his cell and restraining him for feedings.

The government argues that the 28 tapes at issue are classified, and will likely appeal today’s ruling. Releasing the videos, the Justice Department has said, might give a glimpse of the the prison infrastructure, or let Guantanamo inmates or others learn how to resist “forced cell extractions” or locate equipment that could be used as a weapon. The government also warned that the videos might “inflame Muslim sensitivities overseas.”

But the judge, Gladys Kessler, found that those justifications were “unacceptably vague, speculative,” or “just plain implausible.” So much information about the force-feedings was already public, Kessler wrote, and certainly detainees “are already familiar with the tactics used to extract them from their cells and enterally feed them.” The videos may be altered to protect the identities of prison guards, she said.

“This may well be the most significant court decision on Guantanamo Bay in years,” Alka Pradhan, one of Dhiab’s attorneys, said in a statement. “No longer does the American public have to rely on propaganda and misinformation, but can finally watch the videotapes and judge for themselves.”

The government tried to have an upcoming hearing in Dhiab’s case — set for Monday — largely closed to the public, but Kessler decided yesterday that it would stay open. It’s not clear whether an appeal or the redaction of the videotapes will delay next week’s proceedings. In a statement, the Justice Department said it was considering its options.

 They will appeal, of course. 

The Obama administration has bought into the whole “State Secrets” mentality that would give Dick Cheney a stiffie.

Still if these tapes do come out, it will be a good thing, because is is long overdue for Americans to know what is being done in their name.

Canada Defers F-35 Decision

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They have decided to rebuild and extend the life of their F-18 Hornets, and defer their decision on the F-35: (paid subscription required)

Canada’s conservative government, which has spent four years pushing for a noncompetitive purchase of the Lockheed Martin F-35 Joint Strike Fighter, announced at the end of September it would delay retirement of the Royal Canadian Air Force’s Boeing CF-18A/B Hornets for up to five years, until 2025. Canada will, however, continue to support JSF.

 With an election due next year, Prime Minister Stephen Harper appears to have passed the Next-Generation Fighter Capability (NGFC) decision to the next administration, after reports in June that the announcement of a JSF buy was imminent. “Harper was poised to pull the trigger,” one industry source suggests, “but he backed away” following negative public and media reaction. An F-35 buy could have been portrayed as an attempt to foreclose options before the election, and a decision to conduct a competition would be seen as a capitulation, the source suggests. The latest announcement indicates intent to maintain RCAF strength without rushing the NGFC choice.

 The move is not a complete surprise. Lockheed Martin says it is “not news” and that planned Canadian JSF deliveries extend through 2025. (The schedule spanned 2017-22, based on late-2011 plans.) However, there are no programs under contract that support Hornet operations beyond 2020: L-3’s Military Aircraft Systems unit, which supports the Hornet airframe and systems for Canada, had no comment, and Canada’s Department of National Defense (DND) also declined to respond.

 The future of the NGFC depends on the pending election: A decisive Conservative win would favor the F-35, while opposition parties could move toward a competition or delay the entire program. A September report stating Canada had short-listed the F-35 and Super Hornet has been dismissed as inaccurate. “It will either be the F-35 or an open competition,” says a source associated with a potential NGFC competitor.

 The contentious next-gen fighter debate started when DND—then led by Peter MacKay—sought to bypass Canadian law that forbids sole-source procurements except under strictly defined circumstances. In 2008, the DND defined key NGFC requirements and concluded that two aircraft other than the JSF could meet them. But in 2010, to justify a sole-source JSF buy, DND issued a revised set of requirements that it claimed only JSF could meet.

 After a scathing report in 2012 by the auditor-general, the government stripped the DND of authority over the next-gen fighter, shifting authority to the Public Works Department for the acquisition. In February, an independent review panel validated the air force’s new process for evaluating four contenders: the F-35, the Boeing Super Hornet, the Dassault Rafale and the Eurofighter Typhoon.

I would argue that of those 4, the F-35 is the least well suited to their requirements, which is for domestic defense, operating at long ranges, over uninhibited land, where it was always better to lose AN engine than it is to lose THE engine.

The F-35 will cost more to purchase, and more to operate, than any other of the alternatives.

It’s low observability characteristics have no advantage in the interceptor role.

It is a closed system which makes it effectively impossible for Canada’s domestic defense establishment from qualifying new weapons on it.

The only advantage is that it generates “Poodle Points” with the US.

Poodle points can, of course, be cashed in for ……… Nothing at all.

Wall Street: It F%$#s the Airlines Even Worse than the Airlines F%$# the Airlines

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Aviation Week, in reporting a leadership change at JetBlue, notes that much of the impetus for removing the current CEO was because he was too passenger centric: (paid subscription required)

When the JetBlue Airways Board of Directors decided not to renew CEO Dave Barger’s contract but instead elevate airline President Robin Hayes to the top spot, it implicitly endorsed a view held by many on Wall Street that the carrier, while profitable, lags too far behind its rivals.

Barger, an original JetBlue executive, took over in 2007 after the board determined the carrier’s visionary founder, David Neeleman, struggled at running day-to-day operations. Barger quickly fixed the operation, helping it recover from a devastating “valentine” that was delivered on Feb. 14, 2007, when the airline failed to properly prepare for and react to an ice storm that hit the New York area. But like Neeleman, who insisted JetBlue be more refined than its competitors, Barger kept the focus on the customer, preferring not to add baggage fees or seats to aircraft even when most other U.S. carriers adopted both practices.

His resistance to some revenue-generating ideas may have been Barger’s downfall. Despite signaling in recent months he might remain at JetBlue, Barger will be replaced on Feb. 16 by Hayes, a former British Airways executive vice president for the Americas. Hayes is not talking revenue—he has not been saying much at all—but Wall Street analysts say they are hopeful JetBlue will start acting more like competitors. In arguing this summer for a CEO change, Cowen & Co. analyst Helane Becker wrote: “JetBlue is an overly brand-conscious and customer-focused airline, which has resulted in lagging fundamentals.”

………

“What I see Dave Barger doing is leading the company through difficult times and not going into bankruptcy,” says George Hamlin of Hamlin Transportation Consulting. “If there’s something wrong with that, I am living in a strange world.”

(emphasis mine)

If you are wondering why flying sucks wet farts from dead pigeons, just look at this.

“Activist investors” have decided that JetBlue gives an excessively positive experience to its customers, and this must not be allowed to stand.

Bravo, Occupy the SEC

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Occupy the SEC now has a simple rating of your Congress critter.

It’s a pretty simple system:

Methodology

Our methodology was rather straightforward. We created a simple formula that allowed us to produce a score between 0 and 100 for each member of the House . A score of 100 means that a member voted in a manner that was consistent with our positions on every bill. Conversely, a score of 0 means that the member took the opposite view of OSEC on all considered bills.

Additionally, we gave some weight to the sponsorship and cosponsorship of bills. If a bill was “good” then we viewed sponsoring (or introducing) the bill as good and therefore rewarded that individual with what amounts to additional good votes. If the individual introduced a “bad” bill then we subtracted from the member’s score by counting the sponsorship as if it constituted additional bad votes. Co-sponsorship of bills was treated in a similar fashion but the weight we applied was smaller. Lastly, we added a multiplier to each bill that reflected the importance of the bill and its potential impact. For instance, if the bill was just a minor “technical fix” then it received a small multiplier, but if the bill was aimed at, say rehauling an entire agency (as HR 3193 aims to do by changing the makeup of the CFPB), then we viewed votes on that bill as being more significant, and consequently applied a larger multiplier to it.

Rather unsurprisingly, the Dems score better than the Republicans, but I would note that any Dem under 50 should be considered for a primary challenge.

H/t naked capitalism.

Well, This is an Interesting Turn of Events

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The Japanese Self Defense Forces (JSDF) is looking to update their Soryu-class submarines, and the next batch will switch from an air-independent propulsion (AIP) system to using lithium ion batteries to replace the current lead acid technology:

Japan has decided to power its new batch of Soryu-class submarines with Lithium-ion batteries instead of air-independent propulsion (AIP) technology — a move that could raise eyebrows after similar types batteries were faulted for fires aboard the Boeing 787 Dreamliner.

 However, experts brush aside those concerns and instead say this type of technological leap increases power and performance, while reducing maintenance. It also could make Japanese subs more marketable overseas.

 Yasushi Kojima, a spokesman for the Maritime Self-Defense Force (MSDF), said the change would affect the next four remaining Soryu-class submarines in Japan’s 10-boat class.

………

 The existing Soryu-class diesel-electric submarines (16SS) use AIP technology based on Kockums Stirling engines license-built by Kawasaki Heavy Industries, allowing them to stay submerged for long periods. The engines power Sweden’s smaller Gotland-class submarines for up to two weeks at 5 knots.

 The current Soryu-class submarines are propelled by a large electric motor that has three power sources: diesel engines, the AIP engines and main storage batteries. Diesel engines, which require oxygen for combustion, power the boats on the surface or while snorkeling. The boats can snorkel for extended periods to limit their detectability while transiting submerged (only the snorkel mast is above the water) or for short periods to quickly recharge their batteries after operating underwater. The AIP engines — which burn small quantities of diesel fuel and liquid oxygen — are used for long-range underwater cruising at low speed, and to keep the batteries topped off. The batteries are used for ultra-quiet operation as well as high-speed underwater operations, which quickly depletes them.

 By shifting to Lithium-ion batteries, the new Soryus would retain their main propulsion diesels, but be equipped with more powerful and far lower maintenance batteries than lead-acid types widely in use.

LiIon batteries have at least 4x the energy density of lead-acid batteries, and I would assume that the spaces for the LOX tanks and Sterling engines would be changed to battery storage.

If you assume twice the volume of batteries, and 4x the energy density, it means that you could have about a 2 week undersea patrol before it would have to surface or use the snorkel.

I think that this might give an underwater patrol performance approaching that of the AIP system, with a much longer underwater dash range, and logistical issues would be simpler, as a tanking up the submarine with liquid oxygen is not something that can be done at sea or at a foreign port.

My (barely educated) guess is that this change is being considered because they expect their submarines to range further from their home ports in the future, and the ability to refuel at sea from Japanese or allied tenders would be an important part of this, and that they feel that losing some underwater endurance is worth this.

If this is indeed the case, it reflects a major change in the Japanese military posture.

Since the end of WWII, this sort of power projection has been an anathema to both the JSDF and the Japanese government.

Korea Hedges its Bets on the F-35

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There are still budget issues to be decided by the parliament, but the defense ministry has approved going forward on the KF-X fighter program:

South Korea’s proposed KF-X indigenous fighter program is now closer to being launched than at any time since it was proposed in the late 1990s, following conditional approval for full-scale development from the defense ministry.

The aircraft, which has been pushed by the ministry’s Agency for Defense Development (ADD) and would probably be built by Korea Aerospace Industries (KAI), must still overcome opposition from the finance ministry and some members of parliament.

If the KF-X survives while production of older European and U.S. aircraft winds down, then next decade it may be the only alternative to the Lockheed Martin F-35 Lightning as a fighter engineered for compatibility with Western weapons and communications. The South Korean program also offers the most immediate sales prospects for Western manufacturers of fighter engines and equipment.

The ministry’s Defense Program Execution Committee, chaired by Defense Minister Han Minkoo, on Sept. 24 approved the basic plan for full-scale development of the KF-X starting in 2015. The committee required that the ministry’s Defense Acquisition Program Agency (DAPA) and the finance ministry agree on the total program cost. DAPA may not issue a request for proposals until it and the finance ministry have that agreement. The agency “cannot be optimistic about the result,” says the Yonhap news agency. The finance ministry habitually opposes costly defense programs or at least seeks delays.

Even if DAPA and the finance ministry agree, full-scale development cannot begin next year without funding authorized by parliament in the government budget due to be settled in December. Members of parliament often take a skeptical view of the defense ministry’s largest ambitions.

DAPA is trying to persuade the finance ministry that the KF-X can be developed for the 8.5 trillion won ($8.1 billion) estimated by an influential think tank, the Korea Institute of Defense Analysis. But the Naeil newspaper reports 8.5 trillion won would pay for an aircraft with only air-to-air capability. Air-to-ground capability would take a further 600 billion won and 4.5 years.

There is also the problem that 20% of the development cost is supposed to be borne by industry, including Lockheed Martin. The U.S. company agreed to support the KF-X technically in return for South Korea last year choosing the F-35A in the F-X Phase 3 fighter competition, but there is no sign that it will invest cash in it—nor should there be, since Lockheed Martin hardly wants to back a future competitor. Indonesia paid 20% of the KF-X pre-development costs and is expected to take the same share of full-scale development.

I think that one of the things that is driving this is that Korea has real doubts as to the affordability and effectiveness of the F-35, and wants to hedge their bets.

I’m also thinking that they are expecting to see a market for a less expensive aircraft built to western standards.

The Handmaiden’s Tale, Alabama Edition

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In the can you top this world of Talibaptist abortion restrictions in the United States, Alabama has started giving legal counsel to the embryo, but not the girl:

Ever since Sandra Day O’Connor resigned from the Supreme Court in 2006, anti-abortion activists have been playing a game of chicken with the justices. On one side are the activists, who want to push anti-abortion laws as far as they can without getting slapped down by the court. On the other side is Justice Anthony Kennedy, who wants to let states make abortions harder and harder to obtain without actually outlawing them. For more than 20 years, Kennedy has approved literally every anti-abortion law he’s encountered, leading some liberals to fear he’d finally abandoned Roe v. Wade altogether.

Soon, however, Kennedy may finally be forced to balk. On Tuesday, the ACLU sued to halt an extreme new Alabama law targeting minors who are seeking abortions. The measure is very clearly designed to degrade and humiliate teenage girls, far beyond what any state has previously attempted (and what the Supreme Court has allowed). Alabama already requires a minor to secure parental consent before obtaining an abortion, but if she cannot—if, for instance, it was her parent who raped and impregnated her—she can ask a judge to bypass this requirement. The new law takes that judicial bypass and turns it on its head, permitting the judge to appoint a lawyer to represent the minor’s fetus and advocate for its best interests. The judge may bring the district attorney into court to question the minor. And, worst of all, the district attorney can call witnesses to testify against the minor—and in favor of her fetus.

All of this is quite heinous. But it gets much worse. If the judge rules in favor of the minor, the district attorney is now permitted by law to appeal the ruling and make his case all over again to a higher court. By letting the district attorney call an endless number of witnesses then appeal an unfavorable ruling, the law creates a loophole that could let the state delay a minor’s abortion to the point that she couldn’t even legally receive one. (In Alabama, that’s 20 weeks, unless there is a threat to the mother’s health.) If Alabama gets away with this law, in other words, it’ll have effectively nullified young women’s constitutional right to an abortion.

I would also note that parental notification laws, in more than a few of the cases, means that the girl has to ask permission from her rapist.

This is undiluted evil, and should no more be compromised with than we would with Osama bin Laden,

Huh, It Wasn’t the Polio Vaccine

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One of the theories about the origin of HIV/AIDS, related to my by my younger brother, Daniel, well over a decade ago, was that its origins began with an early variant of the Polio vaccine, the Salk vaccine, which grown in monkey kidney cultures, provided an avenue for SIV (Simian Immunodeficiency Virus) to become HIV (Immunodeficiency Virus).

Well, if the result of a recent DNA sequencing is accurate, the jump to humans occurred well before the first tests of any of the Polio vaccines:

The deadly virus responsible for the global HIV/AIDS pandemic emerged around 1920 in the city of Kinshasa, the capital of the Democratic Republic of the Congo, according to new research that has relevance to the effort to understand how another deadly virus, Ebola, reestablished itself in West Africa.

The study, published in the journal Science, reveals that the HIV virus was already established and spreading in Africa long before the U.S. Centers for Disease Control and Prevention first took note of it. The CDC’s first record of the illness occurred on June 5, 1981, when an unusual type of “pneumonia” was detected in five homosexual men from Los Angeles.

No one then knew that the deadly strain of the virus, which has since killed an estimated 39 million people, had already taken hold in the Congo some 60 years earlier.

“It seems a combination of factors in Kinshasa in the early 20th century created a ‘perfect storm’ for the emergence of HIV, leading to a generalized epidemic with unstoppable momentum that unrolled across sub-Saharan Africa,” co-author Oliver Pybus, an Oxford University zoologist, said.

Lead author Nuno Faria, also from Oxford University’s Department of Zoology, explained that “by the end of the 1940’s, over one million people were traveling through Kinshasa on the railways each year.” At the time, what is now the Democratic Republic of the Congo was under Belgian colonial rule and experiencing steady urban growth.

Faria and his team examined the genetics of 348 “HIV-1 group M” samples from the former Belgian Congo, and 466 additional samples from nearby regions. This particular viral strain, “M,” has proven to be the deadliest in humans, but virologist Beatrice Hahn of the University of Pennsylvania explained to Discovery News that it represents just one of several different instances where the illness jumped from a non-human primate to people — likely by the consumption or handling of bushmeat.

That’s about 30 years before the Polio vaccine tests.

BTW, I would also note that while AIDS attracted the attention of medical authorities in the early 1980s, the earliest case in the US, though the doctors at the time did not know it, was the death of a teen in St. Louis in 1969.

On the Way Out the Door, Eric Holder Goes After Our Privacy ……… Again

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For the gazillianth time, he’s seeking the crippling of computer security and privacy system with a back door for law enforcement:

Attorney General Eric Holder, the US top law enforcement official, said it is “worrisome” that tech companies are providing default encryption on consumer electronics. Locking the authorities out of being able to physically access the contents of devices puts children at risk, he said.

“It is fully possible to permit law enforcement to do its job while still adequately protecting personal privacy,” Holder said during a Tuesday speech before the Global Alliance Against Child Sexual Abuse Online conference. “When a child is in danger, law enforcement needs to be able to take every legally available step to quickly find and protect the child and to stop those that abuse children. It is worrisome to see companies thwarting our ability to do so.”

Holder’s remarks, while he did not mention any particular company by name, come two weeks after Apple announced its new iPhone 6 models would be equipped with data encryption that prevents authorities from accessing the contents of the phone. At the same time, Google said its upcoming Android operating system will also have default encryption.

The encryption decision by two of the world’s biggest names in tech is a bid to gain the trust of customers in the wake of the Edward Snowden surveillance revelations.

Holder said he wants a backdoor to defeat encryption. He urged the tech sector “to work with us to ensure that law enforcement retains the ability, with court-authorization, to lawfully obtain information in the course of an investigation, such as catching kidnappers and sexual predators.”

Mr. Holder, I need to explain something to you, and I will talk slowly.

A backdoor is a security hole, and once you create a security hole, it can be used by anyone.

You are asking every American citizen to make their systems less secure for your convenience.

This is a very bad idea.

Hurray! Facebook Blinks!

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Facebook has apologized to cross dressing LGBT members who want to use their stage name, and looks to be allowing “Drag Queen” names in the near future:

Two weeks ago, Facebook was forced to address a firestorm over its real-name policy after “several hundred” drag queens and performers were targeted in a spree of user reports. On that day, Facebook responded by sending a message to those account holders: either switch their public Facebook names to “legal” names or convert their accounts to public “pages,” which lack certain normal-profile features. The affected users had two weeks to do so, which ran out today.

However, instead of disabling those hundreds of accounts, Facebook went in a decidedly different direction. A meeting between affected performers, including original complainant Sister Roma, and company officials took place at the Facebook campus today, and according to a Valleywag report, it ended with Facebook issuing an official apology and promising “substantive changes” to the real-name policy.

“Facebook agreed that the real names policy is flawed and has unintentionally hurt members of our community,” San Francisco Supervisor David Campos said to Valleywag. “Facebook apologized to the community and has committed to removing any language requiring that you use your legal name. They’re working on technical solutions to make sure that nobody has their name changed unless they want it to be changed and to help better differentiate between fake profiles and authentic ones.”

 Fabulous!

Good News Everyone!

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I invented a device that makes you read this in your head using my voice!

In response to yet another attempted shakedown by a patent troll, the courts,  in response to recent Supreme Court rulings, have started to issue significant sanctions:

This summer, the Supreme Court made it easier for defendants to collect fees when they win patent cases. The decision is starting to have an effect—the nation’s largest patent troll just got slapped with an order to pay $1.4 million in attorneys’ fees to NetApp, which it sued in 2010.

The case brought by Summit Data Systems, a branch of Acacia Research Corp., hinged on an accusation that NetApp infringed when its server-based software interacted with an end user on a Microsoft operating system. The two patents-in-suit, 7,392,291 and 7,428,581, relate to “block-level storage access over a computer network.”

But just two months before Summit filed its lawsuit, it sold licenses for those patents to 43 companies that were member companies of defensive patent aggregator RPX—including Microsoft.

“Nonetheless, Summit brought suit against NetApp barely two months after executing the Licensing Agreement,” wrote US District Judge Gregory Sleet in his order (PDF), which was unsealed on Tuesday. “It then took Summit 18 months to disclose the existence of the Licensing Agreement to NetApp.”

Summit’s expert said that Microsoft users infringe the patents, but he couldn’t determine whether Linux or UNIX systems infringed because he “didn’t have time.”

Sleet continued:

The facts of this case demonstrate that Summit pursued an action against NetApp without any basis for infringement, delayed disclosing the existence of the Licensing Agreement for eighteen months, extracted settlements from co-defendants worth a fraction of what it would actually cost them to defend the lawsuit, and then voluntarily dismissed its claims with prejudice prior to the court issuing a ruling on the merits… The claims were frivolous—Microsoft’s initiator software [was] licensed, so no system employing it could infringe the asserted patents. Summit’s motivation was to extract quick settlements that were dwarfed by the costs to litigate. Summit was objectively unreasonable in bringing a lawsuit against NetApp mere months after executing the Licensing Agreement that effectively eliminated its theory of infringement. Finally, the court is convinced that an award of attorneys’ fees in this case is necessary to deter this sort of reckless and wasteful litigation in the future.

………

Acacia is a patent-holding company that’s publicly traded on NASDAQ, and it’s sometimes considered the largest “patent troll,” since its various subsidiaries have filed more patent lawsuits than any other single company. The NetApp fee order is Acacia’s second major setback in recent months. In July, an Acacia unit holding an old Polaroid digital imaging patent lost a big case in which it was seeking royalty payments from 31 companies.

Here is the pertinent bit about the recent Supreme Court decision:

The Supreme Court overruled the lower courts. In their unanimous opinion for Octane Fitness v. Icon Health & Fitness, the justices found the Federal Circuit had taken a wrong turn in 2005 when it rejected the “holistic, equitable” approach toward attorneys’ fees and took up a “more rigid and mechanical formulation.” In order to get fees in a case, a party had to show that a litigation is both “objectively baseless” and “brought in subjective bad faith.”

That’s almost an impossible standard to meet, Octane’s lawyer Rudy Telscher told Ars in an interview before the February oral arguments. “You’ve got to show that the plaintiff brought a ‘zero merit’ case, and they knew that’s what they were doing.”

Instead, the Supremes said today that fees should be awarded in an “exceptional” case. That’s what the statute calls for, and the word “exceptional” should be given its ordinary meaning. “An ‘exceptional’ case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position… or the unreasonable manner in which the case was litigated,” wrote Sotomayor.

The “Federal Circuit Court” above is formally known as the United States Court of Appeals for the Federal Circuit, but is probably better known as the “Patent Court,” which has had a ridiculously broad view of IP rights, they have literally allowed the patenting of a rainy day.

Thankfully, SCOTUS has begun routinely overturning the more extreme rulings of the patent court.

The great charter school rip-off: Finally, the truth catches up to education “reform” phonies – Salon.com

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Bill Clinton weighed in on the debate over charter schools this week, warning that the publicly funded yet autonomous schools must keep their “original bargain” if they want support as alternatives to traditional public schools.

The Huffington Post reports that in remarks before a dinner hosted by the Clinton Global Initiative on Tuesday, the former president hailed the potential of charter schools, even as he called on them to be held to high standards. Clinton cited New Orleans, whose post-Katrina public schools are 100 percent charter. While casting New Orleans’ experience with charters as a success story, he added an important caveat. Charter schools aren’t worth supporting, Clinton suggested, unless they perform better than traditional public schools.

“They still haven’t done what no state has really done adequately,” Clinton told the group, “which is to set up a review system to keep the original bargain of charter schools, which was if they weren’t outperforming the public model, they weren’t supposed to get their charter renewed.”

Clinton’s statement is stunning once you consider its implications. Research shows that the vast majority of charter schools in the U.S. haven’t cleared that hurdle. A study at Stanford University last year found that only 25 percent of charter schools fare better than traditional schools in reading. In math, only 29 percent of charters do better. Nineteen percent of charters actually did worse in reading, while 31 percent were worse in math; the rest weren’t significantly different from traditional public schools.

While Democratic Party centrists in Clinton’s mold have been some of the most enthusiastic cheerleaders for charter schools, Clinton’s comments come as many within the Democratic Party are pushing back against so-called education reformers who want to dismantle teacher protections and increase the number of charter schools. In response to the rise of such groups as Campbell Brown’s Partnership for Educational Justice (chaired by Democratic trial lawyer David Boies) and Democrats for Education Reform, Democrats including operative Donna Brazile, former Ohio Gov. Ted Strickland and former Michigan Gov. Jennifer Granholm this summer formed Democrats for Public Education. The group’s launch underscored that while many of the party’s financial backers support an anti-union, pro-charter agenda, the “reform” movement’s actions are starting to trigger a powerful reaction within the party.

Let’s be clear here. This isn’t about Bill Clinton having an epiphanies.

Bill Clinton isn’t the sort of guy who has epiphanies.

He is a very smart guy who surveys the terrain, and chooses a path, and chooses the best possible path forward for him.

What’s more, Clinton has a record of being just far enough ahead of the curve on these sort of trends to win politically.

My guess, (hope) is that the increasingly dubious claims of the charter school industry, will gain currency in the next year or so, and this is what Clinton has picked up on:

But the word is out, and resistance to charter takeovers is stiffening in more places than York. In school systems such as Philadelphia, Bridgeport, Pittsburgh, and Chicago, where charter schools are major providers, parents and local officials have increasingly opposed charter takeovers of their neighborhood schools. A recent poll in Michigan, where the majority of charter operations are for-profit, found that 73 percent of voters want a moratorium on opening any new charter schools until the state department of education and the state legislature conduct a full review of the charter school system.

I so hope that I’m not being a Pollyanna here,

Student Athletes, My Ass. It’s Legalized Slavery

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In the middle of the rout of the University of Michigan football team by the University of Minnesota football team, the coach, Brady Hoke not only declined to pull a student who was clearly concussed, but he put him back in the game after pulling him:

But, by the third quarter against Minnesota, things were slipping through Hoke’s fingers. Once again, Michigan’s offense was discombobulated, this time with quarterback Shane Morris rather than Devin Gardner, and the Wolverines looked to be in serious trouble when two turnovers in a span of less than two minutes propelled the Gophers to increase their lead from 10-7 to 27-7. At this point, I finally caved and believed that there was little chance for Hoke to save his job, but I still thought he should finish out the season.

And then this happened:





2:05 – 3:58
Morris remains in the game, and then something happens that we never want to see as college football fans. Morris drops back to pass and rolls to his left. As Morris flings the football, Minnesota defensive end Theiren Cockran closes in at full speed, drops his helmet, and unleashes a dirty and ejectionable helmet-to-helmet hit on Morris. Morris’ pass is overthrown and incomplete, but, when the ESPN cameras come back to Morris after the play, we see him walk around dazed for a few seconds and then this:

………

Morris clearly wobbles and tries to prop his head on Ben Braden’s right arm to remain upright. Braden recognizes this and uses both arms to catch Morris and prevent him from falling to the ground. Braden then keeps his right arm wrapped around Morris’ back to keep him standing. Khalid Hill then walks over and says something to Morris, which prompts Morris to look to the Michigan sideline and wave off a substitution.

………

But, not only does Morris remain in the game for another snap, Michigan allows him to drop back for a pass, which could lead to him being on the receiving end of another bone-crushing hit delivered by Minnesota’s pass rush. Absolutely abhorrent. Thankfully, Morris releases his pass before any Gophers can get in the vicinity to do so.

After the play, the ESPN cameras get a shot of Morris staring at the Michigan sideline, and anyone and everyone with a brain can see that Morris is completely dazed and confused. As Morris drops his head, Hoke and the Michigan staff finally realize that Morris is in no condition to be on a football field and motions for Gardner to replace him.

One play too late, though.

 ………

5:05 – 6:33
At the end of Gardner’s third play on the field, during which he scrambled, his helmet was ripped off by a Minnesota defender. Accordingly, by rule, Gardner must sit out the following snap unless a timeout is called by either team.
The decision here for Hoke should be pretty simple: (1) send out third-string quarterback Russell Bellomy for the next play; or (2) use one of Michigan’s remaining two timeouts and keep Gardner in the game.
But that is not what happens, and what does happen next is a fireable offense.
As Bellomy removes his headset and begins scrambling to find his helmet, Morris, who had finally taken off his helmet, starts walking towards the field of play, puts back on his helmet, and jogs onto the field. No Michigan coach, including Hoke, or any member of Michigan’s training staff stop him. At this point, Bellomy retrieves a helmet — one I do not believe is actually his — and starts to sprint onto the field before halting when he sees Morris is already in the huddle.

 ………

For starters, Morris never should have been in this huddle. But look at the play clock in the graphic above. THERE ARE A FULL 25 SECONDS ON THE PLAY CLOCK. That is plenty of time for Hoke to either: (1) call Morris back to the sideline and sub in Bellomy, who now has a helmet; (2) call a timeout, which still remains an option every second until the ball is snapped; or (3) PUT IN ANY PLAYER — WILTON SPEIGHT, BRIAN CLEARY, ALEX SWIECA, LINEBACKER JAKE RYAN, DEFENSIVE TACKLE WILLIE HENRY, ETC. — THAT IS NOT CONCUSSED.

Even the umpire looks over to Michigan’s sideline and asks Hoke if he wants to take a timeout, to which Hoke declines, before starting the play clock.

Disgusting. Reprehensible. Despicable. Atrocious. Disturbing. None of these adjectives can truly describe just how horrifying it is that Hoke had absolutely no problem reinserting Morris back into this game. None.

(all emphasis original)

People are upset that coach Hoke did this.

I’m appalled that Hoke, and the athletic director David Brandon, whose tenure as a Domino’s Pizza CEO and as a Republican political apparatchik (but I repeat myself) presaged his aggressively capitalist management of his “student athletes”, have not been fired yet.

This is not a just a failing of U. Mich, it symptomatic of the fundamentally abusive nature of top tier collegiate athletics.

It’s not education, it’s not athletics, it’s human trafficking.

If it were anything else, everyone involved in this debacle would already be suspended pending termination.

I hope that the QB, Shane Morris, is talking to a lawyer.