HealthCare.gov: How Political Fear Was Pitted Against Technical Needs

(By Amy Goldstein and Juliet Eilperin, Washington Post, 02 November 2013)

In May 2010, two months after the Affordable Care Act squeaked through Congress, President Obama’s top economic aides were getting worried. Larry Summers, director of the White House’s National Economic Council, and Peter Orszag, head of the Office of Management and Budget, had just received a pointed four-page memo from a trusted outside health adviser. It warned that no one in the administration was “up to the task” of overseeing the construction of an insurance exchange and other intricacies of translating the 2,000-page statute into reality.  Summers, Orszag and their staffs agreed. For weeks that spring, a tug of war played out inside the White House, according to five people familiar with the episode. On one side, members of the economic team and Obama health-care adviser Zeke Emanuel lobbied for the president to appoint an outside health reform “czar” with expertise in business, insurance and technology. On the other, the president’s top health aides — who had shepherded the legislation through its tortuous path on Capitol Hill and knew its every detail — argued that they could handle the job.

In the end, the economic team never had a chance: The president had already made up his mind, according to a White House official who spoke on the condition of anonymity in order to be candid. Obama wanted his health policy team — led by Nancy-Ann De­Parle, director of the White House Office of Health Reform — to be in charge of the law’s arduous implementation. Since the day the bill became law, the official said, the president believed that “if you were to design a person in the lab to implement health care, it would be Nancy-Ann.”  Three and a half years later, such insularity — in that decision and others that would follow — has emerged as a central factor in the disastrous rollout of the new federal health insurance marketplace, casting doubt on the administration’s capacity to carry out such a complex undertaking.  “They were running the biggest start-up in the world, and they didn’t have anyone who had run a start-up, or even run a business,” said David Cutler, a Harvard professor and health adviser to Obama’s 2008 campaign, who was not the individual who provided the memo to The Washington Post but confirmed he was the author. “It’s very hard to think of a situation where the people best at getting legislation passed are best at implementing it. They are a different set of skills.”

The White House’s leadership of the immense project — building new health insurance marketplaces for an estimated 24 million Americans without coverage — is one of several key reasons that the president’s signature domestic policy achievement has become a self-inflicted injury for the administration.  Based on interviews with more than two dozen current and former administration officials and outsiders who worked alongside them, the project was hampered by the White House’s political sensitivity to Republican hatred of the law — sensitivity so intense that the president’s aides ordered that some work be slowed down or remain secret for fear of feeding the opposition. Inside the Department of Health and Human Services’ Centers for Medicare and Medicaid, the main agency responsible for the exchanges, there was no single administrator whose full-time job was to manage the project. Republicans also made clear they would block funding, while some outside IT companies that were hired to build the Web site, HealthCare.gov, performed poorly.

These interwoven strands ultimately caused the exchange not to be ready by its Oct. 1 start date. It was not ready even though, on the balmy Sunday evening of March 21, 2010, hours after the bill had been enacted, the president had stood on the Truman Balcony for a champagne toast with his weary staff and put them on notice: They needed to get started on carrying out the law the very next morning. It was not ready even though, for months beginning last spring, the president emphasized the exchange’s central importance during regular staff meetings to monitor progress. No matter which aspects of the sprawling law had been that day’s focus, the official said, Obama invariably ended the meeting the same way: “All of that is well and good, but if the Web site doesn’t work, nothing else matters.” 

The White House was in charge, but the on-the-ground work of carrying out the law fell largely to HHS. At first, a new unit responsible for building the statute’s insurance marketplaces was created inside the office of Secretary Kathleen Sebelius.  Soon, however, it became evident that the office — with more than 200 people — would not survive on its own. It lacked tools, such as the ability to award grants and outside contracts, that were vital to its mission, said Richard Foster, Medicare’s chief actuary for nearly two decades before he retired early this year. So the office, with a slightly new name, moved in early 2011 into the Centers for Medicare and Medicaid Services (CMS), a large agency spread among locations in the District, Bethesda and Baltimore.

The move had a political rationale, as well. Tucked within a large bureaucracy, some administration officials believed, the new Center for Consumer Information and Insurance Oversight would be better insulated from the efforts of House Republicans, who were looking for ways to undermine the law. But the most basic reason was financial: Although the statute provided plenty of money to help states build their own insurance exchanges, it included no money for the development of a federal exchange — and Republicans would block any funding attempts. According to one former administration official, Sebelius simply could not scrounge together enough money to keep a group of people developing the exchanges working directly under her.

Bureaucratic as this move may sound, it was fateful, according to current and former administration officials. It meant that the work of designing the federal health exchange — and of helping states that wanted to build their own — became fragmented. Technical staff, for instance, were separated from those assigned to write the necessary policies and regulations. The Medicaid center’s chief operating officer, a longtime career staffer named Michelle Snyder, nominally oversaw the various pieces, but, as one former administration official put it: “Implementing the exchange was one of 39 things she did. There wasn’t a person who said, ‘My job is the seamless implementation of the Affordable Care Act.’ ”

In the West Wing, the president put his trust in DeParle, who joined the White House two months after Obama took office in 2009 and had overseen the health-care legislation from its infancy. Earlier in her career, she had been a health-care administrator under President Bill Clinton and worked on the issue at the Office of Management and Budget.  Well-versed as she was, DeParle immediately recognized that she needed help, according to a former senior administration official. She tried — but failed — to lure to the White House one of the nation’s top experts, Jon Kingsdale, who had overseen the building of a similar insurance exchange in Massachusetts.  DeParle convened meetings twice a week in the Old Executive Office Building, bringing together representatives of agencies as far-flung as the Internal Revenue Service, the Centers for Disease Control and Prevention and OMB’s regulatory office — all of which had a role in putting the law into practice. They pored over spreadsheets and hashed out difficult policy questions. The work was “highly specific,” recalled Donald Berwick, who was CMS’s administrator through 2011 and now is a Democratic gubernatorial candidate in Massachusetts. “There was an implementation chart. Regulation by regulation, we would say, where is it now, who was developing it?”

A higher-level monthly meeting, intended to work through tough regulatory questions, was attended at first by Sebelius, Treasury Secretary Timothy Geithner, Chief of Staff Rahm Emanuel and Domestic Policy Council Director Melody Barnes. By late summer and early fall of 2010, the meetings petered out after some of the participants stopped attending, according to a former senior administration official.  At the White House and inside CMS, the initial focus was not on building the online marketplace but rather on rules to let young adults stay on their parents’ insurance policies and new insurance pools for Americans who were being rejected by insurance companies because they were ill.  The exchange “was in the future,” Berwick said, explaining that the Web site was, during his tenure, a matter of “conceptualization,” along with “the many other regulations we were batting out.”

From the beginning, the administration worked in a venomous political climate. “You’re basically trying to build a complicated building in a war zone, because the Republicans are lobbing bombs at us,” the White House official said.  White House officials contend that the political sensitivities did not influence the substance or pace of the work. But others who were involved say otherwise.  According to two former officials, CMS staff members struggled at “multiple meetings” during the spring of 2011 to persuade White House officials for permission to publish diagrams known as “concepts of operation,” which they believed were necessary to show states what a federal exchange would look like. The two officials said the White House was reluctant because the diagrams were complex, and they feared that the Republicans might reprise a tactic from the 1990s of then-Sen. Bob Dole (R-Kan.), who mockingly brandished intricate charts created by a task force led by first lady Hillary Clinton.  In the end, one of the former officials said, the White House quashed the diagrams, telling CMS, instead, to praise early work on those state exchanges that matched the hidden federal thinking.

By then, DeParle was no longer directly in charge, since she had been promoted in February 2011 to be the president’s deputy chief of staff for policy. Her successor, Jeanne Lambrew, worked on the law’s passage in Sebelius’s office and, years earlier, had worked on health reform under the Clinton White House.  That spring, CMS had begun writing specifications for the IT contracts to build the federal exchange, but the White House again insisted on caution. A larger number of states than expected were signaling that, under Republican pressure, they would refuse to build their own online insurance marketplaces and would rely on the federal one. The more states in the federal exchange, the more complex the task of building it. Yet, according to several former officials, White House staff would not let this fact be included in the specifications. Their concern, one former official said, was that Republicans would seize on it as evidence of a feared federal takeover of the health-care system.

So that September, when the administration issued the “scope of work” for the largest IT contract, the specifications skirted the question — saying only that “CMS will not know for certain how many states will apply” to run their own insurance exchanges.  After the contract was awarded to CGI Federal, the administration kept giving states more and more time to decide whether to build their own exchanges; White House officials hoped that more would become willing after the 2012 election. So the technical work was held up. “The dynamic was you’d have [CMS’s leaders] going to the White House saying, ‘We’ve got to get this process going,’ ” one former official recalled. “There would be pushback from the White House.”

Meanwhile, the White House also slowed down important regulations that had been drafted within CMS months earlier, appearing to wait until just after Obama’s reelection. Among the most significant were standards for insurance coverage under exchanges. The rules for these “essential health benefits” were proposed just before Thanksgiving last year and did not become final until February. Another late regulation spelled out important rules for insurance premiums.  Such delays were “a singularly bad decision,” said Foster, the former Medicare chief actuary. “It’s the president’s most significant domestic policy achievement,” he said, and the very aides who had pushed the law through Congress were risking bad implementation “for a short-term political gain.”  After the election, Cutler, the Harvard professor, renewed his warnings that the White House had not put the right people in charge. “I said, ‘You have another chance to get a team in place,’ ” he recalled.  On Dec. 19, Obama met with roughly a dozen senior White House and HHS officials, including Sebelius. They discussed important policy issues, such as how to persuade more young, healthy Americans to sign up for insurance. But the president had a deeper message. The health-care law, he told the gathering, according to participants, was “the most important thing” in his presidency. “We’ve got to do it right.”

Yet by early this year, White House allies on Capitol Hill were deeply frustrated by how little administration officials would tell them about how the work was going.  On Valentine’s Day, Senate Finance Committee Chairman Max Baucus (D-Mont.) convened a hearing on the federal and state marketplaces. The HHS office in charge of the federal exchange was on its third director in as many years, Gary Cohen, who testified that “we are on track and we will be ready” by Oct. 1.  Baucus pressed him: “I want data here, I don’t want just goals.” The next week CMS provided a one-page “marketplace timeline,” showing 16 items left to be accomplished, such as finalizing a few rules and a streamlined application.

This unwillingness to share information extended to private discussions, as well, according to congressional aides.  For three years, roughly two dozen Democratic aides have gathered to discuss health care each Monday at 1 p.m. in House Minority Whip Steny H. Hoyer’s conference room, under a ceiling featuring images of winged cherubs and wheat harvesting in Constantino Brumidi’s fresco “The Four Seasons.” The gathering includes White House officials, who set the agenda, along with HHS officials and aides to Hoyer, Senate Majority Leader Harry M. Reid (Nev.), House Minority Leader Nancy Pelosi (Calif.) and seven relevant committees.

During the regularly scheduled meeting June 24, Lambrew from the White House gave no hint that the administration might delay a requirement that businesses with more than 50 employees provide insurance. Instead, administration officials informed Reid, Pelosi, Hoyer, Baucus and Sen. Charles E. Schumer (D-N.Y.) by phone about a half-hour before the news became public eight days later.  One White House official blamed the secrecy on the climate of GOP hostility to the law. “It’s very hard for a staffer to talk to a member of Congress about a decision that’s not made yet,” the official said.

Inside CMS, meanwhile, some staffers were aware by late 2012 that the work of building the federal exchange was lagging, according to a former HHS official — a much earlier timeline than has been previously disclosed. Some employees in the main office involved with building the exchange repeatedly warned at meetings late last year and in January that so many things were behind schedule that there would be no time for adequate “end to end” testing of how the moving parts worked together, the former HHS official said.  “People were just like, well . . . it’s a dynamic we can’t change,” the former official said. “There wasn’t a way to push back or challenge it up the line. You had the policy people, largely at the White House, pushing the deadlines and tinkering with the policy, rather than the people who had to run the critical operating path design and program the system.”  By late summer, CMS officials were frustrated with CGI Federal, which repeatedly said that certain features of the exchange were ready when they were not, several officials said.

CGI was issuing warnings of its own. On Aug. 17, about six weeks before the launch date, a company employee sent an e-mail to a CMS staffer — with copies to more than a dozen other CMS staff members — detailing an “updated schedule” for work on the exchange. The e-mail, obtained by The Post, said that, for the tasks that CGI was responsible for, the exchange was 55 percent complete.  White House officials say they were focused on whether there would be enough insurance plans for sale in the new marketplaces and on whether enough people would enroll. They say they didn’t have a clue how troubled the Web site’s operation was.  Only during the weekend after HealthCare.gov’s Oct. 1 opening did the president’s aides begin to grasp the gravity of the problems, the White House official said. Obama soon began getting nightly updates on the performance of the Web site, which has still been unavailable to Americans for hours at a stretch over the past week.

But that was still to come. A month earlier, on Sept. 5, White House officials visited CMS for a final demonstration of HealthCare.gov. Some staff members worried that it would fail right in front of the president’s aides. A few secretly rooted for it to fail so that perhaps the White House would wait to open the exchange until it was ready.  Yet on that day, using a simplified demonstration application, the Web site appeared to work just fine.

http://www.washingtonpost.com/politics/challenges-have-dogged-obamas-health-plan-since-2010/2013/11/02/453fba42-426b-11e3-a624-41d661b0bb78_story_1.html

Five Myths About The Affordable Care Act

(By Sarah Kliff, Washington Post, 31 Published: October 2013)

“Frustrating.” A “debacle.” That is how President Obama’s own secretary of health and human services, Kathleen Sebelius, has described the rocky launch of HealthCare.gov. Americans were supposed to begin shopping for insurance coverage on Oct. 1, but millions have been unable to log into the federal online exchange . Congress, meanwhile, shut down the government for 16 days in a dispute over whether to fund the health-care law. As the debate continues, let’s look at some of the most persistent myths about the law — and some new ones that have cropped up.

1. Americans will be forced to buy health insurance.

The health-care law’s individual mandate, despite its name, isn’t meant to force Americans into health plans. Instead, it is supposed to encourage people to purchase coverage by giving them two options: Buy insurance or pay a fine. In 2014, that fine is $95 or 1 percent of an individual’s income, whichever is higher.  The Internal Revenue Service is responsible for collecting this penalty from individuals who indicate on their annual tax filings that they have not purchased coverage. The agency can take the penalty out of a filer’s refund, but beyond that, its ability to recoup those dollars is extremely limited. The IRS cannot, for example, send agents to people’s homes or put liens on their houses. In the health-care law, Congress specifically curtailed the ability to enforce this penalty, giving the IRS fewer ways to collect it than there are for other tax fines.

2. If you like your health plan, you can keep it.

Obama has repeatedly made this key promise about his signature legislation. “If you’re one of the more than 250 million Americans who already have health insurance, you will keep your health insurance,” he said in June 2012, shortly after the Supreme Court upheld the law.  In truth, the health-care law makes a number of changes to the insurance industry that will affect the nearly 165 million Americans covered by private plans. For one, it requires all health plans to include a wider set of benefits, among them maternity care and mental health services. Employers have responded by increasing premiums by less than 3 percent, on average, to make up for the cost of these new benefits.

The individual market, where 15 million Americans buy their own coverage, will see even bigger changes. Experts estimate that insurers will discontinue at least half of these plans in 2014 because they do not cover the benefits that the Affordable Care Act requires. Some say the number could be even higher, around 75 to 80 percent.  CBS News has reported that more than 2 million people have already received word from their insurers that the health plans they have now won’t be available next year. Customers who receive a cancellation notice will need to shop for new coverage. Those plans could have a higher price tag because they offer more benefits, although many people will receive financial help from the government to buy a new policy.

3. The exchange’s big problem is that it is overwhelmed by traffic.

The federal exchange did get a lot of web traffic at first; the White House estimates that 8 million people visited the site in its first four days. To put that in perspective, as one Web developer recently did, that’s more users in HealthCare.gov’s first 24 hours than Twitter had in its first 24 months.  Traffic has decreased since then, and some people have successfully purchased insurance through the online marketplace. That’s led insurance companies to discover an even more serious problem with the exchange: It’s sending inaccurate enrollment data to insurers. Companies are supposed to get a file from the exchange each time someone enrolls in one of their plans. These files include important information such as where the new subscriber lives and how many people are in her family. But insurers say these files are sometimes wrong, listing children as spouses, for instance, or including an address that doesn’t exist.

Some companies have assigned employees to hand-check each file for errors. This works now because few people are enrolling through the exchange. But at some point, insurers expect that they’ll receive thousands of files each week and won’t have the manpower to check each one. If lots of people start signing up before the problem is fixed, insurers worry that they won’t know who actually bought their plans. And without knowing who has subscribed, insurance companies won’t be able to send out membership cards, for example, or begin paying claims for trips to the doctor.

4. The exchanges will transform the insurance industry.

While the federal exchange has gotten much attention in recent weeks, only a small fraction of Americans are expected to use the new marketplace to buy health insurance. The Congressional Budget Office estimates that, by 2023, 24 million people will buy insurance through the state and federal exchanges; that’s about 7 percent of the population. It’s telling that many of the large insurance companies, such as Cigna and UnitedHealthcare, have decided to participate in only a handful of the states’ marketplaces. So far, they don’t see this segment of the market as key to their growth.  The vast majority of Americans will still get their health insurance the way they did before the Affordable Care Act: through their employers or through a public program, mainly Medicare and Medicaid.

5. The health-care law will increase the deficit.

The Congressional Budget Office estimates that, over the next decade, the health-care law will reduce the deficit by $109 billion. That’s because the Affordable Care Act includes new spending cuts and tax increases, which more than offset the cost of expanding health insurance to millions of Americans. The law’s new revenue sources fall into three main categories. First are cuts to Medicare providers, such as hospitals and doctors.  Under the Affordable Care Act, the federal government will pay slightly lower rates.

Second are cuts to private health insurance plans, known as Medicare Advantage plans, that cover Medicare patients. The federal government has, in recent years, paid these private plans more to cover Medicare beneficiaries than it has spent on seniors who sign up for the traditional public program. The health law aims to reduce those differences by cutting Medicare Advantage payments. Lastly, the law includes new taxes on a number of health-care industries, including hospitals, medical-device makers, insurers and pharmaceutical companies.

http://www.washingtonpost.com/opinions/five-myths-about-the-affordable-care-act/2013/10/31/120a887c-36b4-11e3-ae46-e4248e75c8ea_story.html

  

Copyright Extension And Patent Reform Issues In Entertainment And Retail

15 Years Ago, Congress Kept Mickey Mouse Out Of The Public Domain. Will They Do It Again?
(By Timothy B. Lee, Washington Post, 25 October 2013)

For most of history, a great character or story or song has passed from its original creator into the public domain. Shakespeare and Charles Dickens and Beethoven are long dead, but Macbeth and Oliver Twist and the Fifth Symphony are part of our shared cultural heritage, free to be used or re-invented by anyone on the planet who is so inclined. But 15 years ago this Sunday, President Clinton signed the Sonny Bono Copyright Term Extension Act, which retroactively extended copyright protection. As a result, the great creative output of the 20th century, from Superman to "Gone With the Wind" to Gershwin’s "Rhapsody in Blue," were locked down for an extra 20 years.  It was a windfall to the families and corporations that owned these lucrative copyrights. But it meant these iconic works would be off-limits to those who wanted to reuse or reinvent them without permission. And hundreds of thousands of lesser-known works aren’t available at all, because there's no cost-effective way to obtain permission to republish them.

The copyright extension Clinton signed will expire in five years. Copyright holders like the Disney Corp. and the Gershwin estate have a strong incentive to try to extend copyright extension yet further into the future. But with the emergence of the Internet as a political organizing tool, opponents of copyright extension will be much better prepared. The question for the coming legislative battle on copyright is who will prevail: those who would profit from continuing to lock up the great works of the 20th century, or those who believe Bugs Bunny should be as freely available for reuse as Little Red Riding Hood.

Today, copyrights can easily last for more than a century. Things were very different when America was founded. In America's original copyright system, protection only lasted for 28 years. By the mid-20th century, Congress had doubled the maximum term to 56 years. Then, in 1976, Congress overhauled the copyright system. Instead of fixed terms with a maximum of 56 years of protection, individual authors were granted protection for their life plus an additional 50 years, an approach that had become the norm in Europe. For works authored by corporations—Hollywood blockbusters, for example—copyright terms were extended to 75 years. 
If not for the CTEA, Steamboat Willie, the first Mickey Mouse cartoon, would have fallen into the public domain at the end of 2003. That would have allowed anyone to use the character in their own works. (Disney)

The 1976 legislation granted a retroactive extension for works published before the new system took effect. The maximum term for already-published works was lengthened from 56 years to 75 years. That meant that any work that was still under copyright in 1978, when the new system took effect, was eligible for an additional 19 years of protection. Without the term extension, works published between 1922 and 1941 would have fallen into the public domain between 1978 and 1997.

Instead, those works remained under copyright, providing a windfall to the owners of iconic copyrighted works such as the original Mickey Mouse cartoon, "Steamboat Willie," and George Gershwin's "Rhapsody in Blue." When the 1990s arrived, the holders of those older copyrights began agitating for another extension. Copyrighted works from the 1920s were scheduled to begin falling into the public domain again in 1998, and copyright interests wanted Congress to stop that from happening.  "There was not a single argument that actually can stand up to any kind of reasonable analysis," says Dennis Karjala, a law professor at Arizona State who emerged as a de facto leader of the opposition to the law. The supporters of the law, Karjala says, were "basically the Gershwin family trust, grandchildren of Oscar Hammerstein, Disney, others of that ilk"—that is, holders of copyrights in old works that were on the verge of expiring.. (Dennis Karjala)

Supporters of the extension pointed to Europe. In 1993, the European Union added 20 years to the term of European copyrights. Under European law, American authors would only enjoy longer copyright terms in Europe if the United States followed Europe's lead and adopted "life plus 70" copyright terms.  "It didn't seem like there was any reason why American creators should be at a disadvantage vis a vis their European counterparts," says Preston Padden, who represented Disney in the late 1990s and has taught communications law at the University of Colorado Law School. "The old disparity invited mischief, like American creators artificially creating legal domiciles for Europe in order to gain the benefit of the longer license term." And, advocates said, if Congress was extending terms for new works, it would only be fair to extend terms for existing works as well.

Former Sen. Hank Brown (R-Colo.). (Photo courtesy of Brownstein Hyatt Farber Schreck)Critics pointed out that extending copyright terms retroactively wouldn't benefit the public. After all, William Faulkner, George Gershwin and Walt Disney had died decades earlier. Granting longer copyright terms for their existing works couldn't cause them to produce any more masterpieces.  "To suggest that the monopoly use of copyrights for the creator's life plus 50 years after his death is not an adequate incentive to create is absurd," wrote Sen. Hank Brown (R-Colo.) in a 1996 report for the Senate Judiciary Committee. "The real incentive here is for corporate owners that bought copyrights to lobby Congress for another 20 years of revenue—not for creators who will be long dead once this term extension takes hold."  But Brown was in the minority. Indeed, Brown says, he was the committee's only opponent. "I thought it was a moral outrage," says Brown, who left the Senate in 1996 and now practices law in Colorado. "There wasn't anyone speaking out for the public interest."

Few members of Congress were opposed to the legislation, but Karjala was working to rally opposition to the legislation from outside of Congress. The Copyright Office asked for comments on extending copyright terms in 1993. Karjala says he drafted a letter opposing the idea and got "30 or 40" of his fellow legal scholars to sign it. When Congress took up the idea in 1995, people encouraged Karjala to once again take a leading role. "I kind of groaned to myself," Karjala says. "I'm not an activist type of personality, but I thought, 'I guess I've started on this thing. I'm the only one who seems to be sufficiently energized about it.'"
If President Clinton hadn't signed the CTEA, Superman would be scheduled to fall into the public domain at the end of this year.

To actually stop the legislation, Karjala needed powerful allies. And there were established groups that he thought should be helping out. This was long before reddit and Wikipedia helped create a grassroots copyright movement. But Karjala says that non-profit groups representing professions such as librarians and historians had traditionally served as public-interest watchdogs on copyright issues. And those groups had lobbyists that could have helped stop copyright terms from being extended.  But his efforts to recruit them to fight term extension fell flat. With the bill looking unstoppable, most of these groups chose to make peace with the forces pushing the bill. Karjala says they were "bought off" by minor changes to the legislation that addressed specific issues that concerned them. "In exchange they agreed not to oppose the rest of the bill," he says.  Brown did his best to slow progress on the bill. "I noted the absence of a quorum several times," he says, a tactic that delayed consideration of the legislation. "I did my best to extend the debate."

Without the CTEA, Disney's Snow White and the Seven Dwarves would have fallen into the public domain at the beginning of this year. (Disney)But the biggest reason the fight lasted as long as it did—legislation was introduced in 1995 but it didn't pass until 1998—was because the restaurant industry saw the campaign for term extension as an opportunity to advance their own pet issue: getting a broader exemption for small bars and restaurants that played copyrighted music over the radio.  "This was a hostage situation," says Peter Jaszi, a law professor at American University who also testified against extending terms. Bars and restaurants didn't care about term extensions, but they threatened to bottle up the proposal unless they got their way.  Negotiations over the hospitality industry's demands slowed the passage of the Copyright Term Extension Act (CTEA). But eventually, policymakers agreed to pass the Fairness in Music Licensing Act, which addressed the hospitality industry's concerns, as a companion bill. When bars and restaurants dropped their opposition to term extension, the legislation's remaining opponents weren't powerful enough to stop it. It passed both houses of Congress on Oct. 7, 1998, and was signed by President Clinton on Oct. 27.
Bill Clinton (AFP PHOTO / Saul LOEBSAUL LOEB/AFP/Getty Images)

The retroactive extension of copyright terms soon drew a legal challenge. Eric Eldred was an Internet publisher who specialized in publishing works that were in the public domain. Represented by legal scholar Larry Lessig, Eldred became the lead plaintiff in a lawsuit challenging the constitutionality of retroactively extending copyright terms.  The Constitution requires that copyrights be granted for a limited time; Lessig argued that if Congress has the power to retroactively extend copyright terms, it effectively has the power to grant unlimited copyright terms on the installment plans. Ironically, the legal battle against the CTEA drew much broader public support than the legislative battle had. "Once Larry Lessig brought the constitutional challenge, all these same people came out of the woodwork," Karjala says of people who hadn't engaged on the issue when the legislation was before Congress. "They started writing amicus briefs to argue the Supreme Court should rule it unconstitutional."

Larry Lessig (Photo by Simon Bierwald)One brief was signed by some of the nation's most prominent economists, including Nobel Laureates Milton Friedman, Ronald Coase, and Kenneth Arrow. The Constitution requires that copyright protection promote the progress of science, but the economists pointed out that the CTEA was hard to justify in these terms. Copyright terms were already so long, they argued, that an additional 20 years would provide only minimal incentive to produce new works. More to the point, retroactively extending protection for existing works couldn't possibly encourage the creation of new works.  But these arguments fell on deaf ears. Writing for a seven-member majority in 2003, Justice Ruth Bader Ginsberg ruled that Congress had broad discretion to choose copyright terms and to retroactively extend them as it saw fit. So long as the terms remained finite, the court held, they satisfied the court's "limited times" requirement.

The big question now is whether incumbent copyright holders will try to get yet another extension of copyright terms before works begin falling into the public domain again on January 1, 2019.  For now, Hollywood is staying mum; a spokesman for the Motion Picture Association of America declined to comment on its plans. We weren't able to find any sign the topic has come up on Capitol Hill. But most of the experts we spoke to said the stakes are so high that a renewed lobbying push is almost inevitable.  "If Hollywood and their allies want to do this, they're going to have to start doing it now," says Chris Sprigman, a legal scholar at New York University. "I would imagine there are discussions going on." Sprigman predicts a debate over term extension over the next five years will look very different than it did in the 1990s. "People are paying attention," he says. "There's a coalition now" that's likely to oppose longer terms.  Indeed, Sprigman sees public outrage over the 1998 extension as a catalyst for the copyright reform movement that came of age with the protest that stopped the Stop Online Piracy Act last year. "None of that would have been possible without the loss in the CTEA and Eldred," he argues. 
)
One advantage opponents will have this time around is better arguments and evidence. Public debate over the last extension has stimulated increased academic research into the economics of the public domain, and as a result, we know a lot more about the costs of longer copyright terms than we did 20 years ago.  One striking example: a study looked at the availability of books published in the last 200 years on Amazon.com. Surprisingly, the study found that there are more printed books available from the 1880s than the 1980s. When books fall into the public domain, as works from the 1880s have, anyone is free to re-publish them. In contrast, books from the 1980s are still in copyright, so only their original copyright holder can give permission to distribute them. As a result, older books are actually easier to get online than newer books are. That means that the 1976 and 1998 extensions have deprived a generation of readers of easy access to books from the 1920s, 1930s, 1940s and 1950s.

(Paul J. Heald)Not only have many copyright holders failed to keep their older works in print, but there are now many books whose copyright holders can't be identified at all. In many cases, the original copyright holder is dead and records about who now holds the copyright aren't available. These "orphan works" have become a serious problem for projects such as Google Books, which aims to digitize books and make them available to the public. Google can't obtain the rights to reproduce these books at any price because it can't figure out who it needs to negotiate with. The older a work is, the more likely it is to be orphaned, so copyright extensions have made the problem much worse.  "There's no evidence suggesting that a longer term is going to produce any more art, literature," Sprigman says. "The only reason to extend the term is to give private benefits to companies like Disney or Time Warner that have valuable properties like Mickey Mouse or famous films."  But copyright, he says, is "not supposed to be about corporate welfare for Disney." Over the next five years, we'll find out if Congress agrees.

http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/25/15-years-ago-congress-kept-mickey-mouse-out-of-the-public-domain-will-they-do-it-again//?print=1

Patent Law Is So Broken That Casinos, Supermarkets, Realtors Demand Change

(By Timothy b. Lee, Washington Post, 28 October 2013)

 

In the last few years, patent litigation has become such a widespread problem that industries that traditionally had nothing to do with the patent system are demanding that Congress take action. The latest sign of that is a letter asking Congress to make it easier to invalidate low-quality patents.  The letter is signed by some high-tech lobbying groups that have long been active on patent issues. But, surprisingly, the letter also drew support from distinctly low-tech sectors of the economy, including casinos, supermarkets, chain restaurants, airlines, and the printing industry.  "It's important to recognize that the problem of patent trolls are no longer limited to technology companies," says Whit Askew of the American Gaming Association, which represents casinos and the manufacturers of gambling devices. "Over the last couple of years, we've unfortunately been bit by the patent troll lawsuit bug, where frivolous lawsuits have been filed against many in our industry."

These predominantly brick-and-mortar business groups aren't just demanding patent reform in the abstract. Askew and other letter signers are endorsing expansion of the clumsily-named "covered business method" program, which provides an expedited process for challenging patents at the U.S. Patent and Trademark Office (PTO). That's significant because expansion of the CBM program has drawn the ire of some patent-rich software companies, including Microsoft, IBM, and Adobe.  Opponents of expanding the CBM program argue that procedural reforms, such as allowing technology vendors to intervene on behalf of their customers and forcing defeated patent plaintiffs to pay defendants' legal bills, will be sufficient to bring the patent litigation crisis under control. And they worry that the defendant-friendly provisions of the CBM program will make it too difficult for the owners of legitimate patents to enforce their rights.

But Monday's letter, whose more than two dozen signers include groups representing advertising agencies, publicly-owned power plants, real estate agents, hotels, and retailers, argues that these process-oriented reforms aren't sufficient to solve the patent troll problem.  "Companies need an effective alternative for challenging validity [of patents] outside of the courtroom," the letter argues. The CBM program "gives threatened companies a substantially less expensive way to challenge low quality patents. Other programs for challenging patent validity at the PTO do not allow the PTO to consider whether the patent is abstract, vague, or too broad," which are common problems with patents used by trolls, the letter argues.  Industry groups that signed the letter say they were motivated to do so by a dramatic increase in the frequency of frivolous patent lawsuits. "We are now seeing [real estate] brokers receive demand letters for use of common technologies like scanner-copiers and website alert technologies," says Gary Thomas, president of the National Association of Realtors.  "I'm a food lawyer," says Erik Lieberman of the Food Marketing Institute, which represents grocery wholesalers as well as supermarkets. "Members bring us issues that impact them. A couple years ago they start coming to me saying 'look this entity we've never heard of is sending us a demand letter asking us for $300,000 or $500,000 claiming we're violating their patent.'"

Lieberman says many of the patents covered common technologies like the store locator function on a grocery store's website or the use of QR codes in advertisements. Lieberman said that patent threats have now cost some of his larger clients millions of dollars in legal fees and staff time. And the burden can be especially serious for smaller supermarket chains that don't have anyone on staff with experience handling patent issues.  For both Lieberman and the American Gaming Association's Askew, low costs are one of the CBM program's key advantages. The program "gives threatened companies a substantially less expensive way to challenge" low-quality patents, Askew says. It can take years for a court to reach a final ruling on a patent case. In contrast, the CBM program can end a lawsuit — and permanently eliminate a low-quality patent — in a matter of months, saving hundreds of thousands of dollars in legal fees.

The letter also notes that under the program, "small businesses are able to pool their resources in order to pay to have a [patent troll]'s patent reviewed." That makes the program a particularly potent weapon against trolls that send letters to a large number of defendants seeking nuisance settlements.  Lieberman says that in the grocery business, "the profit margin is well under 1 percent," so the costs of patent litigation "get passed down to consumers."  The industries that signed the letter collectively have significant lobbying muscle. They could provide a counterweight to patent-rich companies who are squeamish about seeing their patent portfolios subjected to the kind of serious scrutiny the CBM program could make possible.

http://www.washingtonpost.com/blogs/the-switch/wp/2013/10/28/patent-law-is-so-broken-that-casinos-supermarkets-and-realtors-are-demanding-change/

 

The Aesthetic Politics Of Filming Black Skin

(By Ann Hornaday, Washington Post, 17 October 2013)

In one of the first scenes of early Oscar favorite “12 Years a Slave,” the film’s protagonist, Solomon Northup, played by Chiwetel Ejiofor , is seen at night, sleeping alongside a fellow enslaved servant. Their faces are barely illuminated against the velvety black background, but the subtle differences in their complexions — his a burnished mahogany, hers bearing a lighter, more yellow cast — are clearly defined.  “Mother of George,” which like “12 Years a Slave” opens on Friday, takes place in modern-day Brooklyn, not the candlelit world of 19th-century Louisiana. But, like “12 Years a Slave,” its black stars and supporting players are exquisitely lit, their blue-black skin tones sharply contrasting with the African textiles they wear to create a vibrant tableau of textures and hues.

“Mother of George” and “12 Years a Slave” are just the most recent in a remarkable run of films this year by and about African Americans, films that range in genre from the urban realism of “Fruitvale Station” and light romantic comedy of “Baggage Claim" to the high-gloss historic drama of “Lee Daniels’ The Butler” and the evocatively gritty pot comedy “Newlyweeds.” The diversity of these films isn’t reflected just in their stories and characters, but in the wide range of skin tones they represent, from the deepest ebonies to the creamiest caramels.  The fact that audiences are seeing such a varied, nuanced spectrum of black faces isn’t just a matter of poetics, but politics — and the advent of digital filmmaking. For the first hundred years of cinema, when images were captured on celluloid and processed photochemically, disregard for black skin and its subtle shadings was inscribed in the technology itself, from how film-stock emulsions and light meters were calibrated, to the models used as standards for adjusting color and tone.

That embedded racism extended into the aesthetics of the medium itself, which from its very beginnings was predicated on the denigration and erasure of the black body. As far back as “The Birth of a Nation” — in which white actors wearing blackface depicted Reconstruction-era blacks as wild-eyed rapists and corrupt politicians — the technology and grammar of cinema and photography have been centered on the unspoken assumption that their rightful subjects would be white.  The result was that, if black people were visible at all, their images would often be painfully caricatured (see Hattie McDaniel in “Gone With the Wind”) or otherwise distorted, either ashy and washed-out or featureless points of contrast within the frame. As “12 Years a Slave” director Steve McQueen said in Toronto after the film’s premiere there, “I remember growing up and seeing Sidney Poitier sweating next to Rod Steiger in ‘In the Heat of the Night,’ and obviously [that was because] it’s very hot in the South. But also he was sweating because he had tons of light thrown on him, because the film stock wasn’t sensitive enough for black skin.”

Montré Aza Missouri, an assistant professor in film at Howard University, recalls being told by one of her instructors in London that “if you found yourself in the ‘unfortunate situation’ of shooting on the ‘Dark Continent,’ and if you’re shooting dark-skinned people, then you should rub Vaseline on their skin in order to reflect light. It was never an issue of questioning the technology.” In her classes at Howard, Missouri says, “I talk to my students about the idea that the tools used to make film, the science of it, are not racially neutral.”  Missouri reminds her students that the sensors used in light meters have been calibrated for white skin; rather than resorting to the offensive Vaseline solution, they need to manage the built-in bias of their instruments, in this case opening their cameras’ apertures one or two stops to allow more light through the lens. Filmmakers working with celluloid also need to take into account that most American film stocks weren’t manufactured with a sensitive enough dynamic range to capture a variety of dark skin tones. Even the female models whose images are used as reference points for color balance and tonal density during film processing — commonly called “China Girls” — were, until the mid-1990s, historically white.  In the face of such technological chauvinism, filmmakers have been forced to come up with workarounds, including those lights thrown on Poitier and a variety of gels, scrims and filters. But today, such workarounds have been rendered virtually obsolete by the advent of digital cinematography, which allows filmmakers much more flexibility both in capturing images and manipulating them during post-production.

Cinematographer Anastas Michos recalls filming “Freedomland” with Julianne Moore and Samuel L. Jackson, whose dramatically different complexions presented a challenge when they were in the same shot. “You had Julianne Moore, who has minus pigment in her skin, and Sam, who’s a dark-skinned guy. It was a photographic challenge to bring out the undertones in both of them.”  Michos solved the problem during a phase of post-production called the digital intermediate, during which the film print is digitized, then manipulated and fine-tuned. “You’re now able to isolate specific skin tones in terms of both brightness and color,” says Michos, who also shot “Baggage Claim,” “Jumping the Broom” and “Black Nativity,” due out later this year. “It gives you a little bit more flexibility in terms of how you paint the frame.”

Daniel Patterson, who shot “Newlyweeds” on a digital Red One camera, agrees, noting that on a recent shoot for Spike Lee’s “Da Blood of Jesus,” he was able to photograph black actors of dramatically different skin tones in a nighttime interior scene using just everyday house lamps, thanks to a sophisticated digital camera. “I just changed the wattage of the bulb, used a dimmer, and I didn’t have to use any film lights. That kind of blew me away,” Patterson says. “The camera was able to hold both of them during the scene without any issues.”  The multicultural realities films increasingly reflect go hand in hand with the advent of technology that’s finally able to capture them with accuracy and sensitivity. And on the forefront of this new vanguard is cinematographer and Howard University graduate Bradford Young , the latest in a long line of Howard alums — including Ernest Dickerson, Arthur Jafa and Malik Sayeed — who throughout the 1990s deployed the means of production to bring new forms of lyricism, stylization and depth to filmed images of African Americans.  At Howard, Young says, “the question of representation was always first and foremost. . . . When bias is built into the negative, how does that affect the way we see people of color on screen? People like Ernest, Malik and A.J. [found] a sweet spot. There’s always an inherent bias sitting over us. We’ve just got to climb through it and survive, and that’s what’s embodied in the cinematography.”

Whether working on film stock for Dee Rees’s “Pariah,” high-definition video for Ava DuVernay’s “Middle of Nowhere,” or with digital Red cameras for Andrew Dosunmu’s “Restless City” and “Mother of George,” Young is finding a newly rich visual language, one that’s simultaneously straightforward, soft, stylish and intimately naturalistic. His work with Dosunmu — for which Young won the Sundance cinematography award this year — is especially expressive, with the camera coming in and out of focus and often capturing the actors in moments of stillness, like works of sculpture.  “I was trying to be assertive with the imagery as flamboyant, space-age and assertive as African American textiles have been for 10,000 years,” Young explains, adding that he lit “Mother of George” to accentuate blue skin tones and illuminated scenes from above, to suggest natural sunlight. “It takes us back to Tuaregs and Niger and nomads, because the people in the film are kind of like nomads,” he says. “That’s why the top light is always so cool, and their hands are always stained with something. Because that’s what nomadic people do.”

Solomon Northup is a nomad as well in “12 Years a Slave,” in which he and his fellow laborers — often abused, but shown in all their physical types and tonal subtleties — stand in symbolic rebuke to a cinematic apparatus that habitually ignored or despised them. Like their brethren in “Mother of George” and other denizens of this year’s “black new wave,” these characters are claiming aesthetic space that they’ve long been denied.  That space, at long last, seems endless: Young suggested that his next step with Dosunmu might be photographing a movie in 3-D. Having transformed the black body in a two-dimensional format, he says, “let’s work on the perception of the black body in space. Instead of having depth of field, let’s actually take control of each field.” It’s tempting to imagine that Northup and his peers would agree — literally, metaphorically and, not least of all, cinematically.

http://www.washingtonpost.com/entertainment/movies/12-years-a-slave-mother-of-george-and-the-aesthetic-politics-of-filming-black-skin/2013/10/17/282af868-35cd-11e3-80c6-7e6dd8d22d8f_story.html?wpisrc=nl_lunchln

The "Black Name" Hustle

(By Khalid Salaam, The Shadow League, 27 June 2013)

Jabari, Shaniqua, Calasia, Rasul, Mustafa, Imani, Tyquan, Tyesha.

David, Sarah, Sean, Michael, Nicole, James, Samantha, Sarah, Alex.

Two sets of names. Two sets of realities. Ask yourself which one you prefer. How you feel about them says everything about who you are and what you are. Names matter, because a name is often the first thing you learn about a new person and it impacts the shape of things to come.  So, if you think that the names mentioned in the first line are, for instance, “made up” names, I won’t argue with you. In fact, I agree. But I need you to agree with me on this statement: The names in the second line are made up, too. Before we go further, you’ll need to reconcile those thoughts, because all names are made up. Including yours.

When Kanye West and Kim Kardashian revealed their new daughter’s name as North, it set into motion the usual backlash against celebrity names: that they are trying to be different for different’s sake and handcuffing their child to a life of ridicule. Maybe they are, but that’s sort of beside the point. People don’t care about that particular child’s life; they are reacting to their conditioning. A conditioning that says there are only a few acceptable names and anything else is uncivilized.

Conveniently enough, it’s NBA Draft season, where over the last couple of weeks the public has learned the bios of potential new players. Where they’re from, their height and weight, and which position they are projected for are amongst the information gathered. However, the first thing we’ll learn is how to pronounce and spell a new group of names.  Some names will be those of players from overseas, but most will be those of American kids. Not only that, it’s likely that these will be names that you’ve never seen before.  They’re unofficially called “black names.”

Sports fans have become very familiar with these names. Around the late ’80s and early ’90s, we started seeing an influx of Maliks and Jamals, and since then, we’ve seen the proliferation of these names burst into the mainstream. On Thursday, UGA’s Kentavious Caldwell-Pope will continue the tradition. Over the last dozen years, the NBA has welcomed players with distinguished monikers such as Stromile Swift, Keyon Dooling, Amar’e Stoudemire, Tayshaun Prince, Marreese Speights, Markieff Morris and DeAndre Jordan. Each of the names only representing a small fraction of what has become an increasingly popular phenomenon. The sports world, as has often been the case in American diversity inclusion, is ahead of the curve here. (The NFL PA President is named DeMaurice Smith, after all.)

In April’s NFL Draft, we had a treasure chest of names, arguably hitting the zenith of this movement. Making their respective debuts in the fall will be Cordarrelle Patterson, Sharrif Floyd, Kenjon Barner, Shamarko Thomas and the very awesome Barkevious Mingo.  Having one of these unique names isn’t a deterrent in a career of pro sports. Franchises don’t care what your name is; you have value as long as you have the ability to do your job.  For the rest of the world, however, it’s not nearly as simple.   For Americans, the majority of the names we believe are standard and correct are rooted in Northern European and Protestant ancestry. Handles such as Charles, Robert, William, Diana and Ann are revered for their strength and beauty.  There’s a list of roughly 20 names included in this category of reverence. Virtually unchanged for centuries, these names have lived a charmed, bulletproof existence. Toward the end of the 19th Century and well into the beginning of the 20th (roughly defined as the Industrial Revolution), when scores of people from Eastern and Southern Europe came to America, they brought with them their customs and culture. This included, of course, their names.

More “ethnic” and “exotic” than their already established neighbors, they faced various levels of discrimination. Though it wasn’t a legal mandate, the pressure to assimilate was powerful. Not adopting American culture was seen as disrespectful. However, over the decades, their culture (and names especially) became commonplace and gained admission into the mainstream.  For blacks, there wasn’t a need to change family names for societal inclusion. Being “let in” wasn’t an option during those years anyway. The names they held were passed down from previous generations, each one sharpened by the razor edge of forced acceptance.

Both first and last names generally fell in line with the popular names of American society. Desperate for any sort of insertion into the majority, parents weren’t going to joke around with some random name just to be creative. This went on until the latter part of the ’60s and early ’70s, when self-determination became a part of the new normal. In an effort to gain a bit of that shiny new black empowerment being bandied about, parents introduced new names to the lexicon and redefined what it meant to be an American.  These so-called “black names” were and continue to be, to put it lightly, clowned unmercifully.

There is a clip from a Comedy Central show called The Jeselnik Offensive, in which the host introduces a game show called “Black Name Spelling Bee.”   There is another clip by the duo Key and Peele, where they act as college football players with, shall we say, colorful names.  Don’t feel bad if you laughed, because I almost passed out the first time I saw this. But the larger issue is far from funny. Black names, by and large, are identified as markers for those with limited intelligence, suspect morals, criminal activity and impoverished upbringing.  This assessment can rear its ugly head in such arenas as loan applications, school admissions policies and employment opportunities. It’s nothing but a modern form of redlining.

As made famous by the myriad studies done on the topic, hiring managers, for reasons not fully explained, systematically disregard résumés with names they deem as “especially black.”  The hiring managers can usually skate away on their prejudice, with the fault falling on the applicants for having the gall to write such hideous names down on résumés. Their antiquated, stereotypical thoughts are left to shine in the sun, while a qualified applicant is left rejected.  But when the onion is peeled back, you’ll find that it has less to do with the actual name and more to do with who has it. For example, according to the Social Security Agency in 2012, the fastest rising name in the US was, wait for it… Arya. As in, the young heroine from the Game Of Thrones.   Under no circumstances will this name ever be thought of under the same racialized parameters. TV show-derived or not. If anything, it will likely be praised for its individuality.

Remember earlier this year at the Oscar Awards, when the young actress Quvenzhané Wallis was being interviewed by a reporter who, showing a tremendous lack of decorum and professionalism, decided Wallis’ name was too difficult to pronounce and decided that she would call her “Annie.” (Wallis is playing the title character in an upcoming film version of the classic play.) Wallis was not feeling the name switch and instead of grinning and bearing it, responded honestly, explaining that she didn’t want to answer to an arbitrary name just because the reporter was too lazy to do her job.  In the Oscar Nominee Luncheon before the ceremony, she even hipped the press on how to pronounce her name.

Even though a large portion of the public came to her side (the rest went to comment threads and predictably rallied against her name), the larger point was missed.  The argument is not whether or not Wallis, or anyone with a similar name, has a fake, made-up name. The discussion should revolve around the fact that we all, essentially, have fake, made-up names.  Names don’t exist on the periodic table. They don’t exist along with the wind and water as elements that can be processed. They’re not food that grows on trees. Names are just a group of sounds, constructed to assign everyone a particular designation. Names aren’t special on their own. What gives them importance is who assigns them and who receives them. If the person with the name is of high esteem and their opinions are valued, the name is treated as such. And vice versa.

Several years ago, I was talking with a former co-worker about world history. Somehow the name Tyrone came up and with it, all the indulgent stereotypes associated with that name-  sheisty, raggedy, and uncouth. Erykah Badu used that name for a reason. There’s been a Tyrone character in 80 percent of all black sitcoms. It’s “our” name­- except that it isn’t. As I explained to my friend, Tyrone is straight-up Irish.  Want proof of its old popularity? There are eight states with a city named Tyrone still on their registries. It was a popular name in white families for years. For reasons unbeknownst, it fell out of favor and became a black name, assigned to asthma patients, dimly lit project hallways and ex-cons. Other black sounding names include Tanya and Tasha, which are both Russian names, and Reggie and Marcus, which are both Latin in origin.  Here’s a list of Irish names that most people just assume are black: Shayla, Kayla, Brianna, Kiara and Kira. I can go on and on, here, but hopefully, the point is understood. This is where the ignorance lives, in these hidden places where assumptions turn into granite.

When black people attach value to a certain thing, that thing loses its luster. The thinking seems to be anything that Black America deems important ––fried chicken, hip-hop­, etc –– must be bad.  That’s why certain names deemed simply as “black” are actually either Arabic or come from any of the several dozen African countries with large numbers of American immigrants. Names like Hassan, Khadijah and Imani. These names have existed as long, if not longer, than their European contemporaries. But since their popularity in the US lies in Black Americana, we don’t have to care about them.  The name Diamond is considered a black name and the name Rose, a white name. Diamond is a stone; rose is a plant. Neither has religious identification and yet, they have totally different connotations.  Critics advise against naming your kids after alcoholic drinks like Hennessy. And yet, there are thousands of little girls named Brandy.

There has always been a sentiment, mostly in upwardly mobile black communities, that naming children after intimate objects, such as a Mercedes Benz, is a terrible example of hood materialism. Meanwhile, the Oscar Award-winning actress Mercedes Rhuel has likely never had to defend her name.   There was a report engineered by Harvard professor LaTanya Sweeney earlier this year, in which she revealed that so-called black names like LeRoy and Kareem were, when googled, more likely to trigger incarceration ads on a search screen.  Sweeney’s paper found that the prejudice that exists could have catastrophic effects on the overall upward mobility potential of someone who, without those biases, would likely reach many of their goals. 

“names, previously identified by others as being assigned at birth to more black or white babies, are found predictive of race and those assigned primarily to black babies, such as DeShawn, Darnell and Jermaine, generated ads suggestive of an arrest in 81 to 86 percent of name searches on one website and 92 to 95 percent on the other, while those assigned at birth primarily to whites, such as Geoffrey, Jill and Emma, generated more neutral copy.”

 We’ve known that certain names impact hiring potential. The critics decry the difficulty in pronouncing and spelling popular black names, and argue that the difficulty is the reason they are dismissed. Yet, we as a society learned how to spell Gwyneth Paltrow, Miley Cyrus and ABC News journalist George Stephanopoulos (not to mention CNN’s George Stroumboulopoulos) . As far as I can tell, none of their names have been mocked. Their names have not stifled their upside one bit.  I’m not naïve. I understand that there are societal agreements that become social constructs. Every culture has them and there are plenty of these constructs that I agree with. Just because I like certain names, and dislike others like Margaret or Fred, doesn’t mean that I or anyone should get to arbitrarily crap on anyone’s name.

I didn’t think President Obama could get over that name hurdle when he first ran for the White House.  There was a great deal of attention paid to his middle name during his first run, and I was surprised that he’s wasn’t disabled because of that. Maybe a stronger ticket than McCain/Palin would have beaten him. Speaking of which, I actually like the names that Sarah Palin chose for her children- Trig, Bristol, Willow and Track  However, they are certainly made-up in the same way that LaMarcus and Shamika are made-up. There’s zero difference. All that post-racism stuff we keep talking about, this is where the proof of it has to manifest. What good is it if people sign petitions and pass laws, if a name like Tyreke can get judged without merit.

As “unique” names flood the mainstream populace, there has been an uptick in the frequency of different names. According to the baby name website, Nameberry, some of the popular mainstream names for 2013 include “Eponine,” “Kirrily,” and “Adelina.”  Exactly.  What will be interesting to see is if these names are shunned. If, via a large scale pushback, these names will be considered unworthy, ignorant and “ghetto.”  If these catch on, and their parents are made into semi-celebrities for being creative, then we’ll know for sure that the double standard is truly vicious.  In a world where US Senator Sherrod Brown is white and former Eagles QB Donovan McNabb is black, open-mindedness is a real asset. Diversity can’t just be a word tossed around in corporate seminars. It has to matter in a tangible way. And that includes people with “Moozlum” names, like you know, the one I have.

http://www.theshadowleague.com/articles/3352/full

Christmas Miscellanea

Ruckus Around The Christmas Tree - As Usual

(By Penne L.  Restad, Washington Post)

     At last, Christmas morning.  May we now declare a truce in the Christmas culture war? All those poor salespeople who struggled to remember whether company policy was to greet shoppers with "Happy Holidays" or "Merry Christmas" are free to relax and settle down around their Christmas tree or holiday tree or whatever other seasonal symbol they prefer and celebrate in their own private way.  For celebrating Christmas is something that almost all of us, apparently, do.  A recent poll says 96 percent of Americans observe the holiday in some way or another.  In my house, the children, old enough to have wised up to Santa, waited patiently for us to build a fire and make coffee before they retrieved their old sequined red-felt stockings.  Next came the gifts.  I come from a tradition of morning openers.  Some families insist on Christmas Eve, but that's not our way.  At some point, we'll prepare dinner, but not for a while.  And so it goes, as it has gone in my family -- and in most of America -- for generations.  Christmas has been our nation's most important holiday for well over a hundred years.  But culturally, it's always been more than a religious day, however much the people who have pushed so hard this year to put "Christ back in Christmas" wish it weren't so.  Moreover, just like this year, it has always been fraught with tensions.

     From a rowdy public festival that upset Puritan sensibilities, it gradually came to center on home and family.  But even then it generated complaints.  People worried whether stockings full of toys and treats would spoil their children.  They fretted over finding the appropriate gifts.  And certainly over this: "Christmas has become too commercial." (What I want someone to tell me is: How much is just enough commercial?)  These past few seasons have been different.  Yes, Christmas comes earlier and earlier every year (at least one person is obligated to say this each October).  But as our nation becomes more diverse, we seem to be getting more and more confused about the holiday.  I found this season particularly difficult.  Whenever a salesclerk rang up my purchases and said "Merry Christmas!" I sized her up.  What did she mean by that?  Who told her to say that?  If I don't say "Merry Christmas" back, will she think I'm an atheist?  I became equally suspicious of the salesperson who exclaimed, "Happy Holidays!" Did I have to say the same back to him?  "Happy Holidays" as a greeting had actually served me well for a long time, especially with strangers.  I didn't care if they were observant Christians or Wiccans or Jews or Buddhists.  I just wanted to share a good feeling.  But now there are those who want to establish Christmas firmly as a Christian holiday.  Others protest that this is tyranny.  A vast middling sector feels something like Rudolph caught in the headlights.

     The battle of Season's Greetings got me down.  So much controversy.  Perhaps I am just overly sensitive, maybe a bit crabby.  But it all makes me wonder what next season will bring, and the ones in the years following.  For all of us, this year's Christmas culture war raised key questions about the holiday.  What is Christmas?  Who owns it?  Do we need it?  What will happen to Christmas as we know it?  As someone who has studied the history of the holiday in this country, I know this isn't the first war over Christmas.  Its very origin almost guaranteed controversy.  The Church created Christmas in 4th century Rome to compete with a December Saturnalia that had become increasingly focused on the veneration of Mithras, the sun god.  Faced with what appeared to be the emergence of a competing monotheism, the Christian fathers countered with a Feast of the Nativity to be celebrated, strategically, on Dec. 25, in the very midst of the Roman revels.  That Christmas survived for centuries after was due to the fact that it made ample room for the profane.  The Pilgrims and Puritans who settled New England 13 centuries later attempted to deal with Christmas by banning it.  The Bible, they pointed out, makes no reference to an invented birthday for Jesus, let alone advocates revelry.  When Plymouth Colony's Gov. William Bradford awoke one Christmas day to find that many of the non-Pilgrim colonists were in the streets, rowdily playing ball and generally having a very good time, he was angry, and scolded them for disrupting the settlement.  If you have to keep Christmas, he warned, do it inside and out of our sight.

     But generally, there were few quarrels about keeping Christmas in the colonies.  Beyond New England, most other settlements varied in their tolerance and observance.  Traditional religious and folk customs dictated the Christmases most settlers kept.  America had become host to such a variety of Protestant denominations that their local practices produced not one American interpretation of Christmas, but many.  Pennsylvania's Quakers, for example, had long testified against the keeping of Christmas.  Episcopalians brought fresh greenery into their churches.  Where Germans lived, Belsnickel, a sort of furry, stricter version of Santa Claus, demanded that children properly recite Bible verses.  In the late 1700s, Philip Vickers Fithian, a New Jersey tutor at Nomini Hall in Virginia, experienced the schoolboys' ritual of locking the school master out of the school, a prelude to a holiday of "Balls, the Fox-hunts, the fine entertainments, and the good fellowship." The Christmas sermon, he noted, lasted but 15 minutes.  In the 1820s things began to change.  Rapid growth, a thriving middle class and flourishing commerce heralded the emergence of the nation's market economy and a new, more standardized Christmas.  It took shape in the cities, where residents put a new premium on civility, order and sentiment.  The demands of business compressed the holiday from a season into a single day, and the raucous holiday street antics that had increasingly disrupted property owners ceased.  Respectable citizens moved Christmas into their homes.  They began to decorate Christmas trees, expect a visit from Santa and exchange gifts.  For them, the question was not about religion, but about a well-regulated urban life and a proper place for family within it.

     Moving Christmas off the streets solved some cultural tensions -- only to raise new ones.  These tended to concern the amount of money and work involved in the festival.  Merchants learned to capitalize on the sentiment of the season, and the subsequent intensification of shopping and gift-giving prompted more than one complaint that the holiday had grown wearisome.  "One-half the populace seems possessed of a wild desire to purchase the things the other half has for sale," wrote an editorialist in one late 19th-century newspaper.  But as time passed, the pairing of Christmas and commerce became even more tightly interwoven .  And so it continues to be.  Each year the amount of money spent on the holiday rises -- a new Gallup poll reports that this year the average shopper planned to spend more than $700 on gifts -- something the solvency of countless businesses depends upon.  One might argue that the commercial aspect of Christmas has become the real basis of the culture's December unanimity.  In fact, it is the very promise of a unified culture that has created the latest tensions over December's celebration.  Beginning with the idea that many of us participate in the seasonal buying spree, a vocal argument runs (although it is more unspoken than forthrightly asserted) that we are participating in Christmas as Christians.  Therefore, "Merry Christmas" is the appropriate greeting but this may not be the case.  According to a 2001 study, 77% of Americans identify them-selves as Christian.  While this is a significant majority, it indicates that- if the 96 percent Christmas-observers figure holds true- some 19 percent of us who just opened gifts aren't necessarily Christians.

     As we contemplate the meaning of Christmas this year, should some portion of the society be excluded from participating in our nation's foremost holiday? I hope not.  I think the festival is more expansive and generous than that.  Yes, we all come together in the public marketplace, but privately each of us highlights different aspects of the holiday.  Maybe Christmas means doing something for someone less fortunate, or honoring Jesus's birth, or singing with a community of believers in church, or taking joy in children's delight -- or even savoring a Chinese meal and taking in a movie.  The point is that we all find "merry" in our own particular way.  It is not a matter of a consensus of speech, and certainly not of belief.  No, I see our celebration of Christmas as uniquely American -- it invites free expression.  For Christmas to survive (and I'm sure business will adapt to meet whatever it determines the consumer wants so that it can ensure this), our private Christmases must continue to hold meaning for us.  So, I'm still confused.  The historian in me knows that Christmas is always changing, but I have no idea how we might celebrate the holiday, say, 50 or 100 years from now -- except that it won't be the same.  I just know that last evening, finally, it all quieted down.  I went home, closed the door (gently), and have been enjoying my private Christmas ever since.  I hope that all of you, in your own ways, are too.

Chistmas Carols For The Psychologically Challenged:

1. SCHIZOPHRENIA: Do You Hear What We Hear?

2. AMNESIA:  I Don't Know If I'll Be Home for Christmas.

3. NARCISSIST:   Hark The Herald Angels Sing - All About Me.

4. MANIC:   Deck the Halls and Walls and House and Lawn and Streets and Stores and Office and Town and Cars and Buses and Trucks and Trees and Fire Hydrants, and....

5. MULTIPLE PERSONALITY DISORDER:   We Three Queens Disoriented Are.

6. PARANOID:  - Santa Claus Is Coming To Get Me.

7. BORDERLINE PERSONALITY DISORDER:   Thoughts Of Roasting On An Open Fire.

8. FULL PERSONALITY DISORDER:   You Better Watch Out! I'm Gonna Cry; I'm Gonna Pout!  Maybe I'll Tell You Why.

9. OBSESSIVE COMPULSIVE DISORDER:   Jingle Bells, Jingle Bells Jingle Bells, Jingle Bells, Jingle Bells, Jingle Bells, Jingle Bells, Jingle Bells, Jingle Bells,

10. AGORAPHOBIA:   I Heard The Bells On Christmas Day, But Wouldn't Leave My House.

11. SENILE DEMENTIA:   Walking in a Winter Wonderland:   Miles From My House In My Slippers & Robe.

12. OPPOSITIONAL DEFIANCE DISORDER:   I Saw Mommy Kissing Santa Claus - So I Burned Down the House.

13. SOCIAL ANXIETY DISORDER:   Have Yourself a Merry Little Christmas, While I Sit Here & Hyperventilate.

14. ATTENTION DEFICIT DISORDER:   We Wish You .. . . Hey Look!!!  It's Snowing!!!

Prince George’s Considers Copyright Policy That Takes Ownership Of Students’ Work

(By Ovetta Wiggins, Washington Post, 2 February 2013)

A proposal by the Prince George’s County Board of Education to copyright work created by staff and students for school could mean that a picture drawn by a first-grader, a lesson plan developed by a teacher or an app created by a teen would belong to the school system, not the individual.  The measure has some worried that by the system claiming ownership to the work of others, creativity could be stifled and there would be little incentive to come up with innovative ways to educate students. Some have questioned the legality of the proposal as it relates to students.  “There is something inherently wrong with that,” David Cahn, an education activist who regularly attends county school board meetings, said before the board’s vote to consider the policy. “There are better ways to do this than to take away a person’s rights.”

If the policy is approved, the county would become the only jurisdiction in the Washington region where the school board assumes ownership of work done by the school system’s staff and students.  David Rein, a lawyer and adjunct law professor who teaches intellectual property at the University of Missouri in Kansas City, said he had never heard of a local school board enacting a policy allowing it to hold the copyright for a student’s work.  Universities generally have “sharing agreements” for work created by professors and college students, Rein said. Under those agreements, a university, professor and student typically would benefit from a project, he said.  “The way this policy is written, it essentially says if a student writes a paper, goes home and polishes it up and expands it, the school district can knock on the door and say, ‘We want a piece of that,’ ” Rein said. “I can’t imagine that.”

The proposal is part of a broader policy the board is reviewing that would provide guidelines for the “use and creation” of materials developed by employees and students. The boards’s staff recommended the policy largely to address the increased use of technology in the classroom.  Board Chair Verjeana M. Jacobs (District 5) said she and Vice Chair Carolyn M. Boston (District 6) attended an Apple presentation and learned how teachers can use apps to create new curricula. The proposal was designed to make it clear who owns teacher-developed curricula created while using apps on iPads that are school property, Jacobs said.

It’s not unusual for a company to hold the rights to an employee’s work, copyright policy experts said. But the Prince George’s policy goes a step further by saying that work created for the school by employees during their own time and using their own materials is the school system’s property.  Kevin Welner, a professor and director of the National Education Policy Center at the University of Colorado in Boulder, said the proposal appears to be revenue-driven. There is a growing secondary online market for teacher lesson plans, he said.  “I think it’s just the district saying, ‘If there is some brilliant idea that one of our teachers comes up with, we want be in on that. Not only be in on that, but to have it all,’ ” he said.

Welner said teachers have always looked for ways to develop materials to reach their students, but “in the brave new world of software development, there might be more opportunity to be creative in ways that could reach beyond that specific teacher’s classroom.”  Still, Welner said he doesn’t see the policy affecting teacher behavior.  “Within a large district, there might be some who would invest a lot of time into something that might be marketable, but most teachers invest their time in teaching for the immediate need of their students and this wouldn’t change that,” he said. 

But it is the broad sweep of the proposed policy that has raised concerns.  “Works created by employees and/or students specifically for use by the Prince George’s County Public Schools or a specific school or department within PGCPS, are properties of the Board of Education even if created on the employee’s or student’s time and with the use of their materials,” the policy reads. “Further, works created during school/work hours, with the use of school system materials, and within the scope of an employee’s position or student’s classroom work assignment(s) are the properties of the Board of Education.”  Questioned about the policy after it was introduced, Jacobs said it was never the board’s “intention to declare ownership” of students’ work.  “Counsel needs to restructure the language,” Jacobs said. “We want the district to get the recognition . . . not take their work.”  Jacobs said last week that it was possible amendments could be made to the policy at the board’s next meeting. The board approved the policy for consideration by a vote of 8 to 1 last month but has removed the item from its agenda Thursday. 

School systems in the Washington region have policies that address the use of copyrighted materials, but none has rules that allow ownership of what a student creates, officials said. Some do address ownership of employees’ work.  The District holds common law copyright, at a minimum, to all relevant intellectual property its city and school employees create, a spokeswoman said.  In Montgomery County, the school system says supplies, equipment or instructional materials that are made by a school employee using “substantial time, facilities or materials” belonging to the system become the property of the public schools. If the activity is performed partially on private time and partially on public time, the school superintendent will approve the arrangement, according to the district’s conflict-of-interest policy.  Peter Jaszi, a law professor with the Glushko-Samuelson Intellectual Property Law Clinic at American University, called the proposal in Prince George’s “sufficiently extreme.”

Jaszi said the policy sends the wrong message to students about respecting copyright. He also questioned whether the policy, as it applies to students, would be legal.  He said there would have to be an agreement between the student and the board to allow the copyright of his or her work. A company or organization cannot impose copyright on “someone by saying it is so,” Jaszi said. “That seems to be the fundamental difficulty with this.”  Cahn said he understands the board’s move regarding an employee’s work, but he called the policy affecting the students “immoral.”  “It’s like they are exploiting the kids,” he said. 

For Adrienne Paul and her sister, Abigail Schiavello, who wrote a 28-page book more than a decade ago in elementary school for a project that landed them a national television interview with Rosie O’Donnell and a $10,000 check from the American Cancer Society, the policy — had it been in effect — would have meant they would not have been able to sell the rights to “Our Mom Has Cancer.”   Dawn Ackerman, their mother, said she would have obtained legal advice if there had been a policy like the one being considered when her daughters wrote their book about her fight against cancer 14 years ago.  “I really would have objected to that,” Ackerman said.  Paul agreed, saying the policy seems to be ill-conceived. It could stifle a child’s creativity and strip students and their families of what is rightfully theirs, she said.  “I think if you paint a picture, publish a book or create an invention as a kid, your family — certainly not the school board — should have the rights to that,” she said.

 

http://www.washingtonpost.com/local/education/prince-georges-considers-copyright-policy-that-takes-ownership-of-students-work/2013/02/02/dc592dea-6b08-11e2-ada3-d86a4806d5ee_story.html