A Different Kind of "Wardrobe Malfunction"

Any list of most influential books of the 20th century must include George Orwell's 1984. And the world that is described -- with oversight of private lives, double-speak, and torture -- is one that seems, given the modern world, to be coming closer and closer.

So it not surprising that Amazon, which is trying to convert readers from paper-and-binding physical books to its new Kindle e-book reader, would want to offer the classic work. In keeping with the Brave New World of Web 2.0, Amazon allows alleged copyright holders to essentially self-publish, by uploading works to its Kindle site, to then be purchased by Kindle owners.(*)

(*-The economics of Kindle publishing are interesting, and worth further exploration: apparently Amazon claims 70% of revenue from newspaper sales, and a right to further distribution. Nonetheless newspapers are lining up to be part of this "new revenue stream" despite getting the short end of the proverbial stick. Well, if there's one thing that the last 10 years have proven, it's that newspapers can adapt to a post-local-monopolistic world. Oh wait.)

But self-publishing(**) carries its own risks, including the possibility that a judgment-proof entity can upload content for distribution that it does not actually own. That's exactly what apparently happened when MobileReference, which is owned by an entity called SoundTells, uploaded its version of 1984 and Orwell's "Animal Farm"; unfortunately for Amazon, Houghton Mifflin Harcourt, not MobileReference, owns the American rights to both Orwellian works.

(**-Amazon also allows its Kindle owners to effectively "self-publish" but sending themselves via email a text that is then converted to a Kindle-friendly-format. Undoubtedly some of these conversion are of text for which the Kindle user in question does not have proper rights. Amazon's exposure there, however, is not certain.)

What happened next re-defined the oft misused concept of irony: Amazon removed the illicit copies of 1984 from its Kindle storefront, which made sense because Amazon was at risk for copyright infringement damages. But Amazon didn't stop there. It also took the unprecedented step of deleting copies of the books from individual Kindles. Poof! (***)

(***- Amazon did have the common sense to refund its customer's purchases. It should also be noted that even under the terms of its license agreement with its Kindle customers, Amazon did not have the right to delete material because it granted to its customers the right to a "permanent copy of the applicable digital content.")

There is no clear analogy in the 'old-fashioned' world to what Amazon did. If a book seller went to your house to reclaim a illicit copy of a physical book, you would have an action for (among other things) trespass. Even recalls in the case of faulty products depend on customer's voluntarily returning the goods in question to the manufacturer (or retailer) for a new product or refund.(****)

(****-"Voluntary" recalls refer to the voluntary action by the good manufacturer, not the end-user.)

Even given the apparent violation of the terms of its own (self-serving) license agreement(*****), Amazon will probably not face extensive litigation risk; it probably sold very few copies of the illicit texts through MobileReference, and Houghton Mifflin may not pursue the matter.

(*****-In fairness, most 'shrink-wrap' license agreements are self-serving; courts generally have allowed them to be enforced despite the fact that few, if any, users actually read them. Instead, a click-through "I Agree" page is usually binding.)

But the incident does create a business problem for Amazon: one of the the good features about the Kindle is that you keep a record of your reading on Amazon's computers (in case you delete -- either accidentally or otherwise (i.e., for memory space reasons)). But the ability of a corporation to delete your personal reading material -- for copyright or other reasons -- brings to mind its own version of "Big Brother."

It also reminds one of the infamous Justin Timberlake/Janet Jackson "wardrobe malfunction" incident in 2004 at the Super Bowl. At the time, TiVo's flacks rushed out with the statement that the incident was the "most watched" event in the history of the recording device; but in a case of shooting-oneself-in-the-foot, that very metric raised the question of how TiVo's management knew that fact. And what else did they know about the viewing habits of their customers?

A few days later, a more-chagrined TiVo had to reassure its customers that the individual information of viewing habits were not being monitored; but the spectre of such monitoring -- and what it means for privacy -- still lingers in the air five years later.

Amazon can't make such an 'aggregation' claim; its records indicate clearly who bought what reading material, and what material is actively on the particular Kindle device.

It's simply, Jeff Bezos (and Jonathan Zittrain) might say, a question of "trust."

Super-Size Me

The MSM is catching up with the fact that if neither Hillary nor Obama can knock the other out over the next few weeks, we are heading towards a brokered convention, or at least one where the so-called superdelegates (generally elected officials) will have the deciding vote(s).

A few thoughts:

* Expect very few super-delegates to commit in the next few weeks, and those that are 'announced' are probably merely making public those decisions that were made days or weeks ago.

* Strength at the top of the ticket. Undecided super-delegates facing tough election challenges will be trying to figure out who will best help them get re-elected.

* Money matters. Another good way to get re-elected? Raise a lot of money. Obama may have a subtle advantage because he has raised more money from small-dollar donors and those who are otherwise new to the system. Hillary's support is from known, established contributors; Obama's are more likely to be 'friends we haven't met yet.'

* States' rights. Obama has won more states than Hillary, although she has won more of the larger states. If that trend continues, there may be a small advantage to Obama because just as small states are relatively more powerful in Congress thanks to the federalist system, small states are 'over-represented' among superdelegates.

* Michigan and Florida. Hillary won the 'majority' of the delegates for both Michigan and Florida, albeit in un-contested primaries. Expect a big push from the Clinton camp to get these delegations seated, although Obama will fight to the end to keep these swing delegates from affecting the outcome.

* The Edwards delegates. John Edwards was awarded approximately 26 delegates before dropping out, which is the equivalent of 1% of the total needed to be nominated, or a small-sized state like Connecticut. In a race that appears to be heading for a tight finish, both camps will be fighting for these delegates.

Holding Serve

The current state of the Democratic primary may be best analogized to a tennis match. Hillary was 'serving' last night, with Obama having a chance to 'break' her in the symbolic states of Massachusetts and California, and to have a close result in New York. None of those occurred, which means that Hillary held.

This weekend has a somewhat uncertain expectation game in Louisiana, where the first presidential primary since Katrina (with all of its attendant population movements) will be held, together with caucuses in Washington State and Maine.

It's then on to the 'Chesapeake Primary' next week (Maryland, Virginia, DC) all on February 12th, which is at this point, seen an Obama 'serve.' But Hillary will be back on serve on March 4th, when Ohio and Texas vote, both seen as natural states for her because unions and Latinos, respectively.

The Ghost of Ronald Reagan

Elections, we are told, are about the future. But so far, the 2008 Presidential election has been very much about the past -- and the legacy of Ronald Reagan.

John McCain, fighting to get control of the fractious Republican party, will later this week dust off old black-and-white photos with the then-Governor Reagan taken shortly after he was released from captivity in Hanoi:



Mitt Romney has spent much of the past month attempting to lay claim to the mantle of "the Reagan legacy" himself, albeit without much success. (It should be noted that neither McCain nor Romney has observed Reagan's 11th Commandment.)

On the Democratic side, Bill Clinton and Barack Obama famously engaged in a squabble during the South Carolina primary about whether Obama supported Reagan's politics, and whether Reagan was "transformative" political figure.

But the real parallel may be with Reagan's 1976 campaign for the nomination. Like Obama, Reagan was running against a virtual incumbent (Gerald Ford), at least in the eyes of the party, but one who had never been elected. Like 1976, the field was a two-person race (Reagan was actually almost knocked out of the running in the early primaries, rallying in North Carolina.) And like 1976, it appears that Obama will chase Hillary all the way to the convention, where Reagan gave one of the most famous concession speeches in modern political history.

And a speech that pointed the way to the Reagan sweep in 1980.

Debate Patty-cake

After the fireworks and hard feelings that surrounded the South Carolina primary, last night's Los Angeles debate -- the last one before Super Tuesday -- was like a game of patty-cake.

From the opening moments, when Obama politely held Hillary's chair for her, to the final image, where the two had a quiet joke before turning to shake hands with the panel and greet the crowd, the tone was civil and -- one might say -- senatorial.

After close to $200 million dollars raised, and attacks on both sides, as a wag might say, Where is the outrage?

It is a rare two-person debate where both candidates believe that a polite exchange serves their interest. Usually, the front-runner wants a gaffe-free debate, knowing that only a large mistake -- or a Quayle-moment -- can make a huge difference. And the underdog needs to 'shake things up', letting the chips fall where they may.

Hillary (and her staff) clearly believed that she leads in most national polls, she needs to improve her "likeability", and that a non-contentious debate served her interests. And Obama (and his staff) clearly believed that her lead is shrinking overall, and in the first two-person-only debate, he would gain stature (and exposure and therefore support) simply by standing side-by-side with her.

One of the candidates is correct, and one is not.

As for the substance, Obama decided to get out ahead of Hillary's strength, health care. He also handled immigration well, until he stumbled into her previous "co-sponsorship" of "comprehensive immigration reform."

But is was Iraq, in the second hour, where the differences were made clear. Perhaps because of the conversational tone, Hillary decided to try explain -- rather than gloss over -- her 2002 vote for authorization, claiming that she received "personal assurances" from the White House that force was just a threat.

I believe that it is abundantly clear that the case that was outlined on behalf of going to the resolution -- not going to war, but going to the resolution -- was a credible case. I was told personally by the White House that they would use the resolution to put the inspectors in. I worked with Senator Levin to make sure we gave them all the intelligence so we would know what's there.

As Wolf Blitzer put it, such reliance could be seen as "naive."

Obama then closed the argument: Hillary says she will is experienced, and will be ready "on Day One." But the question is who will be right on Day One.

As noted before, it's unlikely that Super Tuesday will decide much of anything. Both candidates will gain delegates, and neither, it seems will get to that magic majority. This contest will move well into the spring, and it appears that even though Hillary has more institutional support, her chances of winning have peaked. Her best chance now is to "survive" Obama's primary challenge.

Covering the Spread

Halfway through the regular season, the Patriots were 8-0, and even more impressively, were 8-0 against the 'spread' -- the Vegas line indicating the number of points by which a favorite should beat an underdog.

In the second half of the season, as bettors tuned into to how dominant the Patriots had become, the spreads on each game widened, such that the Pats have been just 2-7 in their last nine games (covering only against Buffalo (16 point spread; 46 point margin) and Pittsburgh (-10.5, won by 21)).

And its clear that Vegas has learned. The Pats were installed as 14-point favorites for next week's "Big Game"(*), but the line has slipped to 12, where it sits today. (Quick review: the line dropped because more bettors took the Giants and the points than the Pats (minus the line); Vegas makes money when there is approximately the same amount of money on both sides of the bet.)

But while the Vegas odds-makers have learned their lessons, political odds-makers have not. For the third week in a row, Barack Obama is perceived to be a heavy favorite going into an election.

On January 8th, Hillary Clinton escaped political death by pulling out a close victory in the New Hampshire primary when the pre-election polls had her trailing by double-digits. On January 19th, the endorsement of the Nevada Culinary Workers, together with a judge's decision to allow caucusing at the casinos (over a Clinton-supported, if not -financed, lawsuit) was supposed to insure Obama's victory. Instead, Clinton won the 'popular' vote in the caucuses, although Obama apparently eeked out a narrow 13-12 victory in national delegates awarded; regardless, the press considered Hillary to be the winner.

Now in South Carolina, Obama is again burdened by high -- and perhaps unrealistic -- expectations in the press. Hillary abandoned SC this week to campaign in the Super Tuesday states, leaving 'only' Bill Clinton and Chelsea behind. The presence of a significant African-American vote in SC is also supposed to be a huge advantage to Obama, although the Clintons have long been overwhelmingly supported by the black community.

The reality is that any win in a state where Obama trailed badly less than a month ago should be seen a 'victory'; after all, this was supposed to be an unstoppable coronation of Hillary as the Democratic nominee. But reality may not be what the press -- and the blogosphere -- has 'baked in' to the expected results.

For that matter, if the Patriots win next Sunday to go an unprecedented 19-0, whether they win by 1 point or 13 will make no difference.

At least outside of the sports books.

The Super Bowl of Politics

With two major American spectator sports -- pro football and Presidential politics -- colliding on television this January, it is worth a closer observation.

In football, the rhythm of the regular season gives way to Wild Card Weekend, followed by the Divisional Playoffs and (this upcoming weekend), the Conference Championships. All of that excitement, with TV bringing us a new game from a new location each weekend, leads up to the preeminent sporting event in professional sports: the Super Bowl.

With locations picked years in advance (get your plane tickets for Supe XLV, to be held in the Dallas Metroplex), the location becomes -- for the week leading up to the game -- the sports and entertainment capital of the world. The telecast itself is the ultimate marketing spot for consumer advertisers. Anyone out there remember Bud Bowl?



Presidential politics, in contrast, begins (at least on TV) with the "Super Bowl": Iowa, and to a greater extent, the New Hampshire Primary. While Iowa is dispersed and the caucus system is archaic, New Hampshire (especially this year) provided everything a political junkie could want: two competitive races, a navigable city (Manchester), and a primary that ended up with a surprise ending.

Fox and CNN come up weeks in advance to build elaborate sets and backdrops. You can't drive for 5 minutes in Manchester on the weekend before the Primary without running into a candidate or a national political journalist -- or both. The campaigns themselves, having been in the states for well over a year before Election Day, secure the best venues for their election night speeches. The whole week becomes an elaborate set-piece that culminated with John McCain reprising his NH win in the very same hotel room where he claimed victory in 2000.



But now that the political Super Bowl is over, its off to the equivalent of Wild Card Weekend. The locations move each night, and the campaigns are put together with tape and baling wire. Instead of elaborately staged victory parties, even Mitt Romney looked spontaneous last night with his sleeves rolled up and his hair (or at least 3 strands) slightly askew:



The wildness will continue for at least three more weeks, to February 5th. At that point, perhaps the writers' strike will have been resolved.

NFL's No. 1?

Discussion about the NFL draft centers around which quarterback will go first - LSU's JaMarcus Russell or Notre Dame's Brady Quinn. Quinn appears to be the more-finished product, although Russell has more "upside potential." SI's Peter King writes in the magazine this week:

The top of this draft looks a lot like 1998's. That year Washington State's Ryan Leaf was the big, strong guy with a great deep arm; Tennessee's Peyton Manning was the heady passer who hadn't won the big game in college. Manning went No. 1 to the Indianapolis Colts, Leaf No. 2 to the San Diego Chargers. Nine years later Manning sits atop the football world, and Leaf is a college golf coach in West Texas. "The repercussions of this pick will last for years," said Browns general manager Phil Savage. "You're picking a flavor, basically. Brady's probably the safer pick. He's been so well-schooled in every aspect of quarterback play, and we've had three or four years to evaluate him because he's played so much college football. And people in this league respect [Notre Dame] coach Charlie Weis. They'll listen to him about Brady. Maybe there's more upside with JaMarcus because he's so physically gifted. It's a tough call."

But a better analogy might be the 1993 draft, where the Patriots used the first pick to pick the bigger, stronger, Drew Bledsoe, and the Seahawks chose Notre Dame's Rick Mirer at #2.

While Bledsoe went to one Super Bowl by himself, and helped the Patriots get to Supe XXXVI, it's fair to say that he will ultimately be seen as a disappointment. Mirer, in contrast, lasted just 3+ years as a starter, and was a bust.

What's a Challenge Worth?

In the aftermath of the Chargers' meltdown on Sunday against the Patriots, Marty Schottenheimer has come under criticism from all sides. One play that stood out was the decision to challenge the ruling-on-the-field of the interception by Marlon McCree and subsequent strip by Patriots WR Troy Brown; the play was a 4th-and-5 with the Pats down by 8 points with just 6:25 left in the game. If the interception had stood (or, for that matter, if McCree had batted the ball down, giving the Chargers possession), the game likely would have swung to the Chargers.

Schottenheimer was criticized for throwing a challenge flag on a play that did not seem (at first glance, or later) to be ripe to be overturned. Further, the Chargers could have used the lost timeout later in the game when, down a field goal with under a minute to go, they tried to mount one final drive.

It's easy to criticize Schottenheimer, the owner of a 5-13 record in the playoffs. (He's also the holder of the dubious distinction of being the NFL coach with the most career wins (200) without a Super Bowl appearance.) However, if the call had been overturned -- as unlikely as that seemed to be given the replays -- the Chargers would have likely won.

But Baltimore Ravens Coach Brian Billick should be subject to even harsher criticism. With approximately 6 minutes left in the third quarter against the Colts, he challenged a fumble out of bounds that still left the Colts with a 3rd-and-4 at midfield; whether the call was correct or not, the Ravens needed the timeout (and the coach's challenge) much more than the swing of 7 yards.

As it turned out, the wasted challenge came back to haunt the Ravens. With the Colts embarking on what turned out to be the game-clinching drive, they reached midfield and a 3rd-and-5. After calling their final timeout, Peyton Manning threw a ball to Dallas Clark that appeared to be well-covered by the Ravens' Corey Ivy. But Clark reached out with one hand, tipped the ball to himself, juggled it against his thigh pad, and ultimately came up holding the ball with an apparent catch. With no challenge in reserve, Billick had no choice but to accept the proverbial 'ruling-on-the-field.' The Colts continued down the field, and ultimately finished the game with a final field goal.

With all the statistical analysis that goes into sports writing and watching today, I am surprised that there is not more written on the 'proper' use of a coach's challenge. But when a team's season is on the line -- and can be saved by the use of a challenge -- it seems reasonable to expect the coach to use it. Unless of course he's wasted it already in the 3rd quarter.