Saturday, September 1, 2007

Giant Spider Web in Texas Baffles Experts

Giant Spider Web in Texas Baffles Experts

Remember the famous episode in the X-files series, when David Duchovny aka Agent Mulder was nearly killed during a night attack of some strange web-weaving fireflies?

Well, the same scenery witnessed by agent Scully and agent Mulder in that episode revealed itself to the public and to entomologists recently, in a region of Lake Tawakoni State Park, situated in Texas. Although not as gruesome and frightening as the one depicted in the X-files episode, the giant spider web is definitely one of the top attractions for some tourists, although others reject even the idea of standing anywhere near it.

The web is now the final destination for thousands of insects, most of them mosquitoes, whose combined death-screeches can sometimes be heard loud and clear.

"At first, it was so white it looked like fairyland," said Donna Garde, superintendent of the park about 45 miles east of Dallas. "Now it's filled with so many mosquitoes that it's turned a little brown. There are times you can literally hear the screech of millions of mosquitoes caught in those webs."

Scientists have two hypotheses for this “sticky” appearance: they said the web could be either the result of a “massive” collaboration between spiders- called social cobweb spiders- or it could be the result of a mass dispersal in which the arachnids spin webs to spread out from one another.

However, the second option seems to be more plausible, since the creation of a web with such dimensions by the cobweb spiders would require an enormous amount of time (and the naissance of the web has only been signaled recently).

Robb Bennett, Ph.D., Editor-in-Chief at The Canadian Entomologist said: “ would not surprise me if this is the result of another mass dispersal event rather than the result of theridiid communal activity. The web page [describing the discovery] states that the web only appeared recently - in my experience communal spider webs take a considerable time to achieve this sort of size.”

"I've been hearing from entomologists from Ohio, Kansas, British Columbia- all over the place," said Mike Quinn, an invertebrate biologist with the Texas Parks and Wildlife Department who first posted photos online.

John Jackman, a professor and extension entomologist for Texas A&M University and author of "A Field Guide to the Spiders and Scorpions of Texas," didn’t seem surprised or enthusiastic about the discovery:

"There are a lot of folks that don't realize spiders do that, [but] until we get some samples sent to us, we really won't know what species of spider we're talking about." He said similar cases were witnessed in other parts of the world too.

For example, the world’s largest communal spider web was spotted in the northern parts of British Columbia, where Brian Thair, a retired biology professor of the College of New Caledonia, saw on October 27, 2002, a silky, white web stretching 60 acres across a field, whose tensile strength was enough to hold a handful of coins without letting them fall. He said that there were "in the order of tens of millions of spiders running frantically back and forth."

"Somebody needs to come out that's an expert. I would love to see some entomology intern come out and study this," Donna Garde said of the Texas spider web.

Lake Tawakoni State Park is a 376.3-acre park in Hunt County with 5.2 miles of shoreline along the south central shore of the main body of the water reservoir.

Battle brewing between States, DoJ over Microsoft settlement expiration

California and several other states have authored a report evaluating the efficacy of the Department of Justice's 2001 settlement with Microsoft. California's attorney general and representatives of other states that make up what is called the California Group believe that the government's scrutiny of Microsoft should extend beyond the November 12 expiration date stipulated in the settlement. The group will have a conference with Judge Kollar-Kotelly on September 11 to discuss their objections.

Meanwhile, the Department of Justice Friday gave Microsoft an okay for changes it has made to the Windows Vista operating system aimed at addressing the complaints registered by Google earlier this year. The DoJ also said that Microsoft was generally in compliance in other areas of monitoring, too. The DoJ's report was not a response to the California Group, but it does highlight the disparity in assessment of the settled.

Hence, we have a bit of a stand-off forming, with the DoJ and Microsoft on one side, and several powerful states on the other. In what follows, we examine the California's Group's complaint as well as Microsoft's response to it.

Microsoft to be a repeat offender?

The settlement, which was reached in 2001 after Microsoft was found by the courts to be in violation of the Sherman antitrust act, established a consent decree agreement which requires Microsoft to allow original equipment manufacturers (OEMs) and end users to easily replace or remove standard Microsoft "middleware" products like Internet Explorer, Outlook Express, and Windows Media Player. The consent decree agreement also prohibits Microsoft from retaliating against vendors that bundle or distribute third-party software. Microsoft's compliance with these terms has been monitored by court-appointed officials that investigate complaints issued by other companies.

According the report issued by The California Group, Microsoft's operating system market share, which still exceeds 90 percent, is evidence that the terms of the settlement negotiated by the Department of Justice have not adequately remedied the detrimental impact of Microsoft's prior anticompetitive behavior. Although the California Group report acknowledges that Microsoft has adequately complied with the requirements of the consent decree agreement, the states believe that Microsoft would resume using anticompetitive behavior if the terms of the settlement are permitted to expire in November as scheduled. Additionally, the California Group argues that pushing back the expiration date of the agreement is further necessitated by the recent release of Windows Vista, which they argue warrants further scrutiny.

"When the remedial regime imposed by the Court expires in large part in November 2007, the principal constraint on Microsoft's ability to abuse its market power will be gone," the report states. "There is no way of knowing whether Microsoft will continue to refrain from engaging in the anticompetitive conduct enjoined by the Final Judgment once it has expired and plaintiffs are no longer able to enforce it... Termination of Microsoft's obligations and of plaintiffs' oversight, including plaintiffs' ability to investigate complaints and review Microsoft's internal records, will remove a significant constraint on Microsoft's behavior."

Microsoft responds

Microsoft filed its own report with the courts in response to the report issued by The California Group. In its own report, Microsoft notes its compliance with all of the requirements of the consent decree and argues that the significant changes in the technology industry that have transpired since the settlement indicate the presence of broader competition.

"Fundamental changes have taken place in the information technology ('IT') industry that The California Group fails to note. Those changes reflect dynamic competitive forces at work," Microsoft's report argues. To support this, the report points out that web-based applications have "impacted the applications barrier to entry said to protect Microsoft's leading share in PC operating systems," and that OEMs now "distribute numerous non-Microsoft software products on their new personal computers."

Microsoft also argues that the Windows operating system market share isn't an appropriate metric to use for evaluating the efficacy of Microsoft's settlement with the Department of Justice. Microsoft argues that the company's dominance in the operating system market wasn't obtained illegally, and that anticompetitive practices were, according to the court's findings, only used to maintain that dominant position. Microsoft further argues that since the company no longer uses any of those practices-and even The California Group acknowledges that fact-the terms of the settlement have succeeded in equalizing competition.

"The Final Judgments have done exactly what they set out to do, i.e., remedy practices engaged in by Microsoft that were found to be anticompetitive by this Court and the Court of Appeal," the report states. "The Final Judgments were never designed to reduce Microsoft's share in any putative market...That 'metric' misconstrues the purpose of the Final Judgments and overlooks significant changes that have occurred in the IT industry since the Court entered the Final Judgments almost five years ago."

Misguided solutions?

It is arguable that the factors that have most contributed to increasing competition and leveling the playing field in recent years have come in the form of radically innovative business models like those used by open-source software companies. Looking back at the various regulatory remedies that governments have attempted to use to rein in Microsoft to spur competition, it would appear that they have no led to a consensus on their efficacy.

"To the best of The California Group's knowledge, no major OEM has taken advantage of the OEM flexibility provisions of the Final Judgment to designate a web browser other than Microsoft's IE as the default on the Start Menu of its new PC systems," the report says. "Moreover, there is no reason to believe that any decline in IE's usage share is attributable to the Final Judgment."

A big question, of course, is what are the outward signs of increased competition, and a reformed Microsoft? Need there be OEMs shipping Firefox as the default browser for the government to consider Microsoft defanged? A bigger dip in market share for Windows or IE? How do you know when it works?

That is the question which must be answered, for how else can the government judge whether or not it has succeeded, or whether or not it should extend oversight? To complicate matters, if The California Group's report is read as an indictment of the entire settlement process, it raises the question of what methods, if any, could have made a difference.

Comparing 2007 to 2001, it's hard to say that there isn't more competition. In the world of Windows web browsers, Firefox has done very well, and even Apple brought Safari to Windows. Large OEMs like Dell now sell Linux directly to end users, and Microsoft can't stop them. Yet, if we believe The California Group, Microsoft may very well try once it thinks that the DoJ isn't watching.

RIAA denies copyright misuse in the wake of antitrust, monopoly accusations

One of the common defenses against the music industry's lawsuits is to accuse the record labels of copyright misuse by collusion and acting as an illegal cartel in their legal campaign. In UMG v. Lindor, the labels are attacking that defense in a motion filed earlier this week, asking a federal judge to either strike the defense or force Marie Lindor to amend it to include something other than "mere conclusions and buzzwords."

What has the record labels upset is the accusation that the they are acting in violation of antitrust laws in their legal campaign against consumers. Here's how Marie Lindor's fourth affirmative defense reads: "The plaintiffs, who are competitors, are a cartel acting collusively in violation of the antitrust laws and of public policy, by tying their copyrights to each other, collusively litigating and settling all cases together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in accordance with a uniform agreement, and through common lawyers, thus overreaching the bounds and scope of whatever copyrights they might have." By acting in such a manner, Lindor argues, the record labels are guilty of misusing their copyrights.

The fact that the record labels act together to advance their litigation agenda is unquestioned. At this point, the record labels have filed over 25,000 lawsuits, and since some very early setbacks, they have gone about them in the exact same manner. From the use of Media Sentry as its investigative arm and subsequent John Doe lawsuits to the boilerplate complaints with identical wording, the one thing that the RIAA has demonstrated is a stunning uniformity in its approach to file-sharing cases.

In a way, it makes a lot of sense. The record labels are all attempting to address what they perceive to be a big problem: file-sharing. With the vast majority of the 25,000+ cases settled in the RIAA's favor either via favorable settlements or outright victories, the strategy has proven to be devastatingly effective in the court of law—even if it is a dismal failure in the court of public opinion.

The downside to the record labels' strategy is that they are ostensibly competitors, vying for sales from the music-consuming public. But instead of adjusting their business models to compete more effectively against one another and bolster their sales, competition is laid to the side in favor of a united front in the courtroom.

In its motion to strike the monopoly accusation from the lawsuit, the RIAA argues that its conduct is protected by the First Amendment and Lindor's affirmative defense doesn't hold up to scrutiny. "The Second Circuit has not recognized the affirmative defense of copyright misuse," argues the record labels. And when it has been recognized in courts outside of the Second Circuit, its scope has been limited. "Specifically, those courts that have recognized the existence of such a defense have found it to exist only where a copyright owner 'has impermissibly extended the copyright monopoly in a manner which constitutes an unreasonable restraint of trade.'"

If the court decides that the plaintiffs' alleged copyright misuse is a valid defense for Lindor, the RIAA wants her to be forced to amend her defense. As it stands now, the RIAA argues, her defense consists solely of "mere conclusions and buzzwords... that are meaningless in this context."

As copyright attorney Ray Beckerman notes, this is the first time the RIAA has attacked the copyright misuse claim when used solely as a defense by one of the record labels' targets. Typically, the charges of monopolistic behavior and copyright misuse are made as part of a counterclaim, and the RIAA is all too happy to challenge those charges when they come up.