Soylent Green Is...Corporations!

In the most self-serving press release category, I received the following from a group of public relations professionals about the Supreme Court's handling of the Nike "free speech" case. In brief, Nike was sued because they made statements that the suit alleges were misleading about Nike's manufacturing operations. Individuals are more free than corporations (the Supreme Court affirmed by not hearing the case) to make statements about themselves, even if those statements turn out to be false or misleading.There's been a judicial and legislative trend throughout the last century to bestow more and more human and civil rights on corporations making them into more and more ersatz people. However, corporations, especially large ones, have resources that make it ever more important that there are checks and balances on their behavior, as government is clearly incapable of dealing with large companies on their own ground. My old publisher Ted Nace, who founded Peachpit Press, has written a book called Gangs of America due out later this year on this very topic. Here's the press release (and here's a good story on the case): PRSA 'Devastated" that Supreme Court Fails to Clarify 'Free Speech' in Nike Case NEW YORK, NY (June 26, 2003) The Public Relations Society of America (PRSA) said today the U.S. Supreme Court's failure to address questions of established protections for free speech by corporations and other institutions demonstrated that the high court is out of touch with realities of complex communications in a global society.

The case, Nike v. Kasky, results from a California lawsuit over a public relations campaign launched by the sporting goods manufacturer to combat allegations that some of its products were made in offshore sweatshops. Rather than issuing a ruling clarifying whether such corporate publicity campaigns enjoy First Amendment protections, the Supreme Court voted 6-3 and issued an unsigned order that stated it should never have taken the case. "We're devastated," said Reed Bolton Byrum, APR, PRSA's 2003 president and CEO. "Those of us who counsel companies in gathering and disseminating information related to their businesses are extremely disappointed the nation's highest court passed up an opportunity to render a galvanizing decision on the issue of free speech rights for institutions. "This indecision represents the Supreme Court's naivet´┐Ż and ignorance in fathoming the complexities and significance of communications in today's society," Byrum said. Because of the Supreme Court ruling, the Nike case now goes back to the lower court in California where the Oregon-based sporting goods manufacturer was first sued. The U.S. Supreme Court ruling leaves untouched a previous decision by the California Supreme Court. "That California ruling imposes the severest limits on speech for any organization that does business in California and it does serious damage to the guarantee of freedom of speech," Byrum said. "It opens the door for any disgruntled former employee or any individual with an ax to grind to seek monetary damages from any organizations whose actions they claim to be totally commercial. Such potential for harassment by litigation will effectively prevent most organizations in this country from participating in any kind of significant public discussion and debate on issues vital to our society or even participating in activities that support charitable or community works. "What this means is that companies must stand mute in the face of criticism, however unwarranted, or risk further damage to reputations and business interests in frivolous lawsuits," said Byrum. "It is a shame that the U.S. Supreme Court will let stand a ruling that implies that our institutions are merely self-serving commercial enterprises that provide no valuable input to the vital issues of our society. "The court failed to act decisively to clarify the established right of corporations to fully and freely contribute to the open flow of information," said Byrum. He also predicted that, by remanding the case to the California court, the U.S. Supreme Court's lack of definitive action will generate a plethora of lower- court cases on corporate and commercial speech around the country and will ensure that the nation's highest court will subsequently have the issue before it again in a later term. "In our society we're seeing an increasing number of attacks on corporations and institutions from a widening variety of sources," said Byrum. "At the same time there is greater demand from the public and government for corporations to operate transparently including speaking and providing information of matters that affect them directly. The court should have used this opportunity to clear up the ambiguity resulting from the 50-year evolution of its commercial speech doctrine. Instead, I fear that the court has done little more than encourage and established legalistic free-for-alls in state and lesser federal courts." PRSA was one of more than 150 professional organizations, media companies and other entities that filed "friend of the court" briefs in the case. The common thread uniting these disparate organizations the Bush administration, the U.S. Chamber of Commerce, the American Civil Liberties Union, organized labor, media companies and major corporations was their interest in preserving free speech rights guaranteed in the First Amendment to the U.S. Constitution. Nike v. Kasky stems from attacks in the late 1990s by activists against the Oregon-based sporting goods manufacturer's overseas labor practices. After Nike defended itself through press releases, advertorials and other media, a self-styled California consumer advocate, Marc Kasky, filed a lawsuit against Nike alleging that Nike, which sells products in California, possibly had misled consumers there with its global public relations campaign. Although the California court did not consider whether Nike had, in fact, misled anyone, it did rule 4-3 that Nike's responses were commercial speech subject to regulation and restrictions of California's consumer protection and truth in advertising laws. In its "friend of the court" brief, PRSA stated that the California court's ruling, if allowed to stand, would cover "any (corporate) utterance where consumers might be present or might be expected to receive the information through media outlets." The California decision could mean, the brief asserted, "corporate speech will disappear from every medium of communication with the public" and "will have an unfair, unprecedented and materially chilling impact on the ability of companies and [others] to speak on issues of public concern." In arguments before the Supreme Court in April 2003, Kasky's attorney conceded that it would be virtually impossible to separate corporate "speech," which is designed solely to secure a commercial transaction, and speech for other purposes. In fact, under the broad definition of commercial speech in the California ruling, a cosmetic's company's work on breast cancer awareness or a women's clothing retailer's work to prevent spousal abuse would be considered overlapping commercial speech. "Corporations, like people, should enjoy equal protection under the law. By this decision rendered under the pretext of curbing misleading advertising, this case sets a dangerous precedent that will not only keep companies from defending themselves but will also open truly public-spirited organizations to legal attacks from those who do not agree with them," said Byrum. The heart of the case was whether corporations like Nike would enjoy the same freedom of speech in defending themselves against warranted or unwarranted criticism and accusation as do accusers and critics. The California decision, Byrum said, "covered any factual statement, including letters to the editor and opinion editorials, statements published on Web sites, media presentations, press releases, television appearances indeed, any public statement made by a company about a topic related to what that company does." The Public Relations Society of America is the world's largest organization for public relations professionals. Its nearly 20,000 members, organized into 116 Chapters, represent business and industry, technology, counseling firms, government, associations, hospitals, schools, professional services firms and nonprofit organizations. Chartered in 1947, its primary objectives are to advance the standards of the public relations profession and to provide members with professional development opportunities through continuing education programs, information exchange forums and research projects conducted on the national and local levels.

More on Maine iBooks

Yet another mostly fuzzy warm story about how Maine giving iBooks to 7th graders makes them better students. Only a few parts of the article divurge from anecdotes to look at results. The short-term results look good, but tens of millions of dollars good?This is my fundamental problem, stated many times, about the Maine program. They spend tens of millions on this program without concrete goals and targets, or ways to measure results. I don't suggest that standardized testing outcomes are the sole method of determining results, but they didn't provide any way of looking at this. Instead of spending $37 million on iBooks, what if they had spent $37M on new teachers, textbooks, field trips, and the arts and sciences? I don't know what $37M would have bought, but I do know that they should be performing a cost comparison on the outcomes. This program is not per se a bad idea. Rather, the notion that you would spend this money and even want to expand it without any substantive idea of whether it's achieving its advantage in cost is ridiculous.

Consumers Buy, Media Companies License

Frank Catalano sent me a link to this essay he wrote about how Apple may come out on top in part because they offer a music sale and download, not a music subscription.But this underlies a more fundamental problem. The media companies (record, film, video, and print) don't view media in the same way as consumers or individuals. The goal of media companies in a digital age is to license media, not sell it. This guarantees them perpetual upgrade money when technologies become obsolete. When you switched from analog VHS tapes to digital DVDs, you didn't regret quite as much the cost of upgrading because you got an eternally unchanging (more or less) copy. But your DVD is perfect. When the next format arrives, will you be able to make a digital copy of the DVD you own into the new format? No. The companies already prevent this through copy protection which in turn is protected by one of the most unconstitutional laws since the Sedition Act: The Digital Millenium Copyright Act (DMCA). Is Apple, thus, selling music? No. It's licensing it, but they say you own it. I asked Apple's VP Phil Schiller: if I own iTunes music that implies that I can then sell my songs to other people, right, since they manage the rights and I can deauthorize those songs on my machines? Hmm, he said, never thought of that. I asked if it was ownership if you couldn't sell it. Schiller said, "I do think of it as ownership, and it really does fit the definition of legal ownership." There are always "certain boundaries on your rights, just as on everything I own." For instance, "I can own a car but that doesn?t give me the right to speed 100 mph in it." Also, if you lose your downloaded files, even though Apple has external licensing systems that can tell where the files are played, they will not restore your missing files. They're gone. You have to repurchase them. That's not ownership; that's borrowing. Schiller's remarks are revealing in that he's equating uses unintended by a maker as potentially the same as criminal violations of the law. We can't drive 100 mph because it's not in the public interest, among other factors. If you drive 100 mph, you can have your license, your freedom, your money, and your car taken away. It's more like putting a governor on every car so that you can only drive the maximum speed limit in each zoned area. If you're on a highway that reads 60 mph, you can drive 60 mph maximum. (Even better, it's like some cars are set to 30 mph and some to 60 mph, regardless of zone.) You might try disabling the governor, but of course the auto companies would have a Digital Millenium Car Act that would put you in jail, just as if you had rolled back a speedometer. Perhaps its wise that I go the speed limit, but there are always circumstances that are outside the rigid parameters that those that attempt to constrain all acts, public and private, can envision. If I own 100 square miles of salt flats, I can drive as goddamn fast as I want. But I can't with a car with that putative governor, nor can I remove it. There must be a differentiation between the notion of illegal acts that harm society or oneself, and the expression of fair use rights that are well within statutory law and should not be brushed out of existence with the same Jack Valenti branded, RIAA themed paint roller that's trying to squash piracy. Piracy is the strawman; the right to transfer media under fair use law is the crux of the current debate.

In Praise of Spam (at the New York Times)

The New York Times published this odd paean to spam this morning that extols the marketing and production virtuosity of companies that replicated the Iraqi most wanted cards produced by the Pentagon to find missing officials.The article does make several references to spam, but focuses more on the operations that allowed several individuals through chains of other people to distribute billions of emails, from which a sizable sales volume arose. Not every spam campaign has these results (several thousand dollars per million messages emailed), but one of the "marketers" in the article notes how when she sends out a million printer ink emails, she grosses over $500, and needs only $200 per million to make it worthwhile. Although interviewees in the article protest about how only a few bad players were sending spam and they dealt with them, there's a big problem: there are no cheap lists of millions of people who have opted-in to receive marketing messages. They just don't exist. All legitimate opt-in mailing lists control how and to whom they're distributed and charge a pretty penny because of how they manage the process. You can't buy millions of names for a few dollars and actually believe that people asked to receive unsolicited mail from any party who has the list. This article is unfortunate, as it will spur interest in spam without consequences, given the returns on this particular project. The Times has done wonderful articles about spam in the past, most recently tracking Earthlink's efforts to successfully nail the Buffalo spammer, and this one just seems out of step by not delving into the seamier side more closely.

Fat Bastard

I couldn't figure out why my referrers report for my Web logs (old kind: you know, logs of hits to your Web site) showed so much traffic from the Truly Odious Mr. Orlowsky (TOMO), a so-called "journalist" for The Register UK. (Journalists typically, Jayson Blair aside, use interviews and published information to verify that their version of reality conforms somewhat to reality itself).But I tracked it back to this hilarious rant which engages in ad hominem link insults against many prominent bloggers. One of those links is to "dangerous, faddish diets", a page on my site showing the svelte Doc Searls and Dave Sifry after bouts of Atkins dieting (not pictured: the rock-star good looks of Cory Doctorow, achieved via Atkins). Oddly, TOMO calls it dangerous and faddish the week after two peer-reviewed clinical studies indicate that Atkins is more or less as good and safe as many other diets, but it doesn't necessarily produce any better long-term results -- just better short-term ones. Why does anyone pay attention to TOMO? Because he still has link-flow, so his articles get good rankings; because The Register was formerly worth reading for bitchy, hilarious, but relatively accurate articles on subjects avoided by other publications; and because when someone loses their mind so abjectly, like Howard Beale in Network, it's just plain good entertainment -- even when you're the sideswiped subject of an article (archives not working?). Meanwhile, I'm not following a dangerous, faddish diet myself. I'm on The Zone, recommended by my svelte doctor, on which I've lost 20 pounds in two months. Oh, wait, it is faddish.

Cell Number Liberation

One of my hobbyhorses has been the failure of the FCC to enforce cell-phone portability, the right to keep a cell phone number even when you change carriers. Carriers have managed to push back the effective date of portability for years, and the final deadline is now Nov. 24. Fortunately, an appeals court judge rejected industry complaints on several grounds, and portability is apparently going forward.The industry is nervous because the only thing that has kept the bottom from falling out of a market in which the bottom is very very low is that fact that people don't often want to give up their cell numbers. Because cell numbers are the primary means of communication for many in business, there could be hundreds of dollars, if not more, in ancillary printing and other costs in getting a new phone number. With that inertia gone, cell carriers could be in a free fall. Many already impose one-year and two-year plan limits on people with huge penalties, often hundreds of dollars, for early cancellation. But most folks after those initial periods, if they're smart, don't re-up for similar plans. (Verizon tried to trick me into adding a 3,500 free weekend/evening minute option to my plan, but I asked if that would move me from month-to-month to another one-year commitment -- yes, they said! No thanks.) I made the big move from Verizon to Cingular several months ago after suffering from poor performance on Verizon's network, and wanting access to GSM, GPRS, and Bluetooth phones, none of which Verizon (which uses CDMA) offered at the time. They have some data options, but none of them are Mac friendly that I'm aware of. Once people can switch carriers with ease, you'll see enormous expense in poaching: you'll get offers in the mail that promise the moon and the stars, in exchange for long-term, high-penalty plans. When I switched from Verizon to Cingular, not only did I decrease my basic costs (with taxes, from about $160 per month for 1,500 minutes to $133 for 1,350 minutes), but I gained rollover minutes. So far, rollover minutes have saved me literally several hundred dollars. One month recently I used 2,000 minutes -- but still had several hundred minutes "in the bank" from previous months. At the moment, I have nearly 1,000 minutes in that bank, which means that when I have some busy months ahead, I'll still be conserving costs.