Coyote Blog

I generally have refused to even participate in the debate over Indiana's RFRA because most of the discourse is so incredibly ill-informed that it is impossible to have a serious discussion.  But I would like to make one observation:

Here is Ruth Marcus with as good a proxy for the anti-RFRA position as I can find:

Hold whatever religious views you want: about whether women should drive, or the morality of having children out of wedlock, or whatever. Your church gets to choose (and enforce its rules). You can practice whatever your church may preach. But if you operate a business, you shouldn’t be allowed to discriminate against people based on who they are, or whom they love.

OK, that is clear enough -- if you have a business that serves the public, you must accommodate all the public equally.  You can't decide not to do business with some group of people.  But this leaves me with a question -- many of the opponents of Indiana's RFRA, from Apple Computer to the NY Times editorial page to the governor of Connecticut (which has its own RFRA, lol) called for businesses to boycott the citizens of Indiana.  Why isn't such a boycott, essentially a refusal to do business with anyone from the state of Indiana irrespective of his or her position on the RFRA, illegal/immoral under exactly Marcus's logic?  Most folks see boycotts as an important first amendment right, a way to express displeasure with a group using the power of markets, without government coersion.  But it seems to be proscribed by Marcus's definition.   Am I missing something here?

I suppose supporters of the boycott would argue that it is OK to refuse business based on political opinions but not on race or gender or sexual orientation.  But supporting the legality of gay marriage is a political opinion.  Now what?

Try as I might, I can only think of two internally consistent positions on this issue:  1.  Businesses have the freedom to accommodate whomever they want; or 2.  All businesses, perhaps as a part of the state business license requirements, must accommodate all comers no matter what.  Number one leads to some ugly, but probably rare, incidents.  Number two causes a lot of friction with other first amendment rights such as speech and religion.

Any other position must take the form of "it is legal to refuse accommodation based on some things but illegal to refuse accommodation based on other things."  There is no way to derive a dividing line between the two based on first principles, so the line becomes a political football, with no viewpoint neutrality.   Basically, accommodation law is whatever the politician of the moment says it is.  Unfortunately, this seems to be what most folks are advocating.

Today Apple Computer won the class-action anti-trust case filed against them.  The plaintiffs were seeking a billion dollars in damages (after tripling) for a DRM system (Fairplay) that does not exist any more used on a device (the iPod) that Apple has pretty much phased out.  These products were such a threat to the survival of competitors that they don't even exist any more.  This is not atypical of how anti-trust often plays out in the marketplace, particularly in the technology sphere.  Any day now I will be filing my lawsuit against Commodore for suppressing competition in the home computer market.

Apparently, the public wants to preserve the house where the Apple Computer was born.   OK.  So is some private non-profit gathering money to buy it and preserve it?  Has the local town appropriated money to buy it and take it over?

None of the above.  The town is simply designating the house as a landmark, imposing all sorts of new costs on the current owner.  This is a taking, and should be treated as such

It doesn't seem like Patricia Jobs, sister of famed Apple co-founder Steve, is exactly onboard with her family home being designated a "historic resource" by the Los Altos Historical Commission. Not that it matters, anyway. According to the San Jose Mercury News, the decision to preserve the one-story home at 2066 Crist Drive where Jobs got a start building the first Apple computers was made independent of her consent. The distinction, which Patricia can still appeal, also means any renovations/repairs to the home would first have to be reviewed by the commission -- so you can understand why the honor's both a blessing and a curse.

My new column is up at Forbes, and discusses the proposal by a number of Congressmen for a Constitutional Amendment to strip corporations of speech and other rights.  The post is hard to excerpt but here is just a bit:

This is why this proposed Amendment is so absurd.  In effect, it would mean that we all enjoy the full range of Constitutional rights, except when we agree to assemble and cooperate -- then we lose them all.   If I as an individual bake bread in my kitchen for resale, I could still petition the state to modify regulations relevant to my activity.  If I then join together with my neighbor in a cooperative venture to bake and resell bread, does it really make sense that I would then lose my right to petition the government?

Worse, the proposed Amendment does not limit its scope to just the First Amendment.  It means that individuals, when on corporate property, might have no protection from unreasonable searches and seizures;  corporations would have no guarantee of due process or of a jury trial in civil suits;  corporate assets would no longer be protected from eminent domain seizure without compensation.  Under this provision, the Federal government could seize Apple Computer if it so desired (or even quarter troops in the Apple offices!).  This all sounds like a stalking horse for Socialism, which might seem overwrought until one realizes that Bernie Sanders is the sponsor of a similar proposal in the Senate....

Of all the possible approaches to reducing the ability of private citizens to manipulate government policy to their personal benefit, this is in fact likely the worst.  As mentioned above, there are many different avenues to exercising influence and power, of which election spending and advertising is just one.  But election spending is the most transparent of all of these approaches.  This proposed amendment would in effect substitute highly visible advertising and electioneering with backroom deals and political patronage that is far more hidden from the public eye.  A cynical person might argue that this is exactly the goal.

From the comments to my iPod post:

Apple Computer announced today that it has developed a computer chip
that can store and play music in women's breasts as implants.

The IBoob will cost $499 or $599 depending on size.

This is considered to be a major breakthrough because women are
always complaining about men staring at their breasts and not listening
to them.

And who doesn't enjoy unclear pronoun reference humor?  Of course the greatest grammar joke of all time has to be this classic:

New Harvard Student:  Can you tell me where the library is at?

Other Harvard Student, with snobby accent:  At Haaahvaaard, we do not end our sentences in prepositions.

New Harvard Student:  OK.  Can you tell me where the library is at, Asshole?

Update:  Yes, I know, before the commenters come after me, I am not one to throw stones about grammatical mistakes.  But I can get it right when I try, I just make mistakes in the heat of battle.

I wrote below that I am not an economist, but I am really, really not a patent lawyer.  However, I find this story totally mystifying:

Apple Computer may be forced to pay royalties to Microsoft for every iPod it
sells after it emerged that Bill Gates's software giant beat Steve Jobs' firm in
the race to file a crucial patent on technology used in the popular portable
music players. The total bill could run into hundreds of millions of dollars.

Although Apple introduced the iPod in November 2001, it did not file a
provisional patent application until July 2002, and a full application was filed
only in October that year.

In the meantime, Microsoft submitted an application in May 2002 to patent
some key elements of music players, including song menu software.

I have already become suspicious that the patent process as applied to software and online concepts (e.g. the Amazon "1-click" purchase patent) is broken.  For me, this is more evidence.  How can a Microsoft patent filed in May 2002 have any validity if it attempts to patent concepts already embodied in a competitive product on the market in 2001?

I once found myself in the middle of one of these patent battles several years ago.  I was on the management team at Mercata, an online shopping site who's bit of uniqueness was that it had three or four day purchase windows for various products, and the price of the product would fall as more people signed up to purchase it.  Kind of a fun, with some interesting viral marketing potential if it had caught on, but patentable?  I mean, doesn't Adam Smith have prior art on this?

Hat tip to Prof. Bainbridge.