Posts about Law

Mike Masnick writes at TechDirt:

Part of the issue was that the only digital copy of the code that they had was the one given to them by West, and it contained a variety of extraneous information that was West's IP, including West logos on each section of the law (representing many thousands of copies). Zvenyach had Joshua Tauberer come by and spend a day removing every bit of West IP from the document and quickly releasing a downloadable copy of the DC Code with a CC0 public domain license.

Tom MacWright notes that this is just one step:

There are a few things that this isn't: it isn't the official copy of the code, and lawyers would be ill-advised to cite it alone. It isn't up-to-date—the council is fast-moving and this is just a snapshot. In time we'll fix these problems too.

What can people do with an open source set of DC laws? We can think of a lot of things, but the best part is when people do things we don't think of. Some commenters on MacWright's post wondered why this matters; can't you just find the code on the existing website? Yes, you can't link directly to a part of the code, and can only download pieces in Microsoft Word, but so what?

So what is all the ways someone could build better tools to make it easier to find the laws. Someone already made a tool that's for some purposes better than the official site. Or people could write automated programs to compare the laws on some topics, like yielding to pedestrians, to those in other states. (Hey, that would be a great idea! Has someone done that yet?)

Do you have ideas or want to implement some? MacWright is organizing a hackathon on Sunday. If you build something neat with the code, let us know and we'll show it off here.

DC needs to fix parking minimums, and quick

First of all, this clearly shows why we need to reform the zoning code. It also shows the consequences of overly restrictive rules.

Many people like rules that force almost any development to request zoning relief, because it gives residents a chance to speak up at a hearing or for neighborhood groups to ask for changes or concessions. However, such a process also forces property owners to hire lawyers and spend months to get through these hearings.

Perversely, that is a lot easier for the big project which will have a greater impact on the neighborhood than for a smaller property owner, or in this case, a nonprofit opening with city financial assistance in an area which has struggled to attract many types of businesses.

The council can't, and shouldn't, override

Okay, but until we fix zoning, does the Playhouse have to suffer? Wells (ward 6) and Barry (ward 8) introduced emergency legislation to let the project move ahead, but as the City Paper also reports, Council Chairman Phil Mendelson refused to put it on the calendar. Is Mendelson being a scrooge? Not really.

That's because the DC Council does not have power over zoning. Before Home Rule in 1974, the federal government controlled all zoning. Congress didn't entirely trust DC's elected representatives to make land use choices, so it gave that power to the Zoning Commission, a 5-member board with 3 people appointed by the mayor and confirmed by the council, and 2 federal representatives.

The DC Council passes plans, like the Comprehensive Plan and individual Small Area Plans, which the Zoning Commission is supposed to follow. But the Zoning Commission actually decides whether to rezone any property or change the regulations. The BZA is a second hybrid federal-local board which rules on individual variances and exceptions based on the zoning code.

The pending zoning update doesn't need any approval from the council—just the Zoning Commission. While some councilmembers (like Muriel Bowser) have nonetheless been catering to residents who oppose the update, wiser councilmembers have been staying out of this contentious issue.

Barry's and Wells' original bill would allow DC's Department of Consumer and Regulatory Affairs (DCRA) to give the Playhouse permits to move ahead, but only temporarily. If the Playhouse then gets the zoning relief it needs, it can keep moving ahead; if for some reason it doesn't, it would have wasted a lot of time. But since the ANC, the Office of Planning, and basically everyone else supports the Playhouse's petition, they'd probably be okay.

Override this time, and what's next?

Still, the bill flirts with a dangerous precedent: directing DC agencies to partly disregard zoning. The Zoning Commission has no police force to enforce its orders. It relies on DCRA to deny permits that don't have zoning relief. We don't want to go down a slippery slope where the Council passes laws telling DCRA to grant permits for projects that violate zoning.

It could work the other way as well. Residents angry about a proposed apartment building at Connecticut and Military asked Councilmember Mary Cheh (ward 3) to intervene and even pass an emergency law directing DCRA to block the project, at least temporarily, until there can be more community meetings. Cheh rightly pointed out that she doesn't have that power.

In one of her responses to neighbors, Cheh wrote,

The Council has no authority over the zoning code: the Home Rule Act defined the Council's legislative authority, but made it clear that the Zoning Commission has full authority over zoning matters. The issue was addressed directly by the Court of Appeals of the District of Columbia, who concluded that "the Zoning Commission is the exclusive agency vested with power to enact zoning regulations." ...

You ask that I petition the Mayor to direct the agencies not to issue any more permits until the concerns are addressed. Again, because there is no discretion in the issuance of permits, an intentional delay could open the District up to liability for takings and discrimination. The law simply does not allow the remedy that you seek.

If the council had passed Wells' and Barry's Anacostia Playhouse bill and someone had wanted to sue, there's a good chance the DC Court of Appeals would have struck it down. If they found a reason to uphold it, that would be even worse, because then it would create an opportunity for council meddling in zoning cases in the future.

This bill is probably safe because it doesn't seem like anyone actually has a problem with the project, but it's not a good idea to possibly set a dangerous precedent just because this specific case is uncontroversial.

There might be other fixes

This case does point to a flaw in the zoning process, in addition to the silly parking rules. Perhaps there should be a way for a property owner to petition for an expedited hearing when a longer delay would cause some hardship. Other processes include such shortcuts.

In fact, the zoning update doesn't do that, but it does allow the BZA to add a "consent calendar" where they can move through uncontroversial matters much more quickly. Perhaps that can help as well for the next Anacostia Playhouse.

And we need to get rid of parking minimums. This case shows how, while stricter rules can sometimes prevent bad projects, they also can at times interfere with good ones. Zoning restrictions have a cost.

As for the Playhouse, apparently the problem is that the building and its parking aren't on the same tax lot. A public alley separates the two. The DC Council does have complete control over tax lots and public alleys, unlike with zoning. Perhaps an emergency bill could temporarily close the alley, transfer the alley property to the Playhouse with a permanent public easement to let the public continue to cross it, join the two into one tax lot, then specify that everything goes back to the status quo ante, say, one year from now? Then DCRA can declare that the property meets current zoning and grant permits without messing with zoning at all.

That's still messy and an awkward thing to do by emergency legislation, but to me it's less dangerous than having DCRA issue a permit for a property that doesn't meet zoning. Or perhaps the clever attorneys in the council and DCRA could come up with another way to make the property conform to zoning while we wait for the slower process of making zoning conform to common sense and the needs of our city today.

How the law became scarce

How did this happen? It's a tricky answer of access, ownership, and contracts.

The DC Council writes and publishes bills, which are additions and subtractions to the law itself. The law is compiled by a contractor—previously WestLaw, now LexisNexis. So the contractor holds a complete copy of the law.

The contractor publishes a few different versions of the "compiled law," each of which with restrictions:

• The online portal has a "browsewrap" restriction against copying in full.
  
• The CD they publish has a "clickwrap" restriction against copying at all.
  
• Even the printed version has a registered copyright by the Council itself.

Unfortunately, courts have upheld these types of restrictions in the CD and website Terms of Service. They get further support from the wire fraud statute, which prosecutors used in the Aaron Swartz case to escalate charges to felonies. And in all of these versions, the contractor tries to claim copyright through compilation copyright and additional content like citations and prefaces.

In the face of these strong guards against freeing the law, the most reasonable avenue for creating a freely-accessible copy is buying and scanning the printed copies, which is exactly what some citizens are starting to do.

Why this matters

This has effects in many places. Advocacy organizations pushing for changes can't reference laws by linking to them, so they have to copy & paste relevant sections and hope that people trust their versions. Of course, when laws go out of date, these copy and pasted guides stop working.

The goal of better educating the police about laws (like the rules of the road for bicyclists) is harder. Police can't have an offline copy of the law for quick access in the field, and the online version is near-useless on smartphones.

It's also locking the DC Council into using a contractor for this purpose. DC's contracts with WestLaw and LexisNexis aren't strong enough to force the contractors to provide them with a copyright-cleaned version, so the council itself doesn't have a compiled copy of the law that they can publish by themselves if they want to take this in-house.

What's Next

This is a hard problem to unwrap and fix, and there are multiple efforts afoot.

Waldo Jaquith is building The State Decoded, an open-source system for storing and displaying state codes. It's already deployed with Virginia's laws. Public Resource.org is working on the long task of scanning and digitizing the print edition. And a group of residents are encouraging the council to write a better contract than the current one with LexisNexis, which doesn't provide for copyright-free copies.

Meanwhile, it'll be months or years until it's possible to download DC's laws onto your iPhone and clarify whether it is, indeed, legal to bike on a sidewalk (sometimes) or drink in public space (never).

Before the trial, I told the judge that I had written several articles on Metro, some critical, for a local blog. I suspected that WMATA's attorney would strike me from the jury as a result. However, after describing the topics of each article to WMATA's attorney, both attorneys declined to strike me from the jury.

After trials are completed, jurors are permitted to discuss or not discuss the trial as they choose.

What happened?

We heard the testimony of the plaintiff, Cynthia Lee, a 57-year old African American woman who lives in southeast DC. Ms. Lee has lived on disability income for 23 years since a 1990 car accident left her in constant pain. She has had several neck surgeries, and is seen regularly by orthopedic surgeons and pain specialists at GWU.

She lives with her fiancée of 7 years, Calvin Thomas, and his 7-year old granddaughter. A home health care aide helps her on weekdays. One juror said that "she receives better medical care than our troops coming back from Iraq."

The morning of the crash, she took MetroAccess from her home to GWU where her doctor discussed her continued pain and suggested she resume physical therapy. Afterwards, her fiancee picked her up from GWU in their van and they drove towards Northeast DC to pick up his granddaughter from his sister's house.

As they crossed North Capitol Street on K Street, a D8 bus headed westbound on K Street turned left onto North Capitol. Mr. Thomas slowed his van in the intersection as cars in front of him slowed down, but the Metrobus kept turning and sideswiped the van.

The physical damages to the Metrobus and the van were slight—a little paint scraped off and a small dent. It was hard to imagine that the force of the impact could have even injured passengers. The police were called, but no police report was filed.

Ms. Lee visited the emergency room at Washington Hospital Center the next day, complaining of pain following the accident, and received a CT scan. Five days after the accident, she returned to her orthopedic surgeon at GWU who assured her the rods and screws in her neck from previous surgeries were still in place.

An ambulance-chasing attorney, or a woman asserting her rights?

At some point during the week after the accident, Ms. Lee came into contact with a personal injury attorney. The attorney referred Ms. Lee to a different orthopedist in Ft. Washington, MD.

The orthopedist in Ft. Washington had an initial consultation with Ms. Lee, which cost $400. He then ordered $1,600 worth of X-rays that Washington Hospital Center had not ordered. He prescribed physical therapy of heating pads, cold packs, and electric stimulation, to be administered in his office.

3 weeks after the accident, the Ft. Washington orthopedist ordered a $2,000 MRI that showed no injury. A month and 7 physical therapy appointments later, Ms. Lee reported that her pain had not subsided, and the physical therapy ended.

Nonetheless, the Ft. Washington orthopedist brought her in for 6 additional follow-up visits from October 2010 through January 2011, none of which resulted in new diagnoses or prescriptions. By that point, Ms. Lee said her pain had subsided to pre-accident levels. The total bill? $10,200.

Judge Maurice Ross gave us clear instructions. If we found WMATA negligent in the accident, and found the accident to be the proximate cause of Ms. Lee's damages and injuries, then we must quantify reasonable medical costs, inconvenience to Ms. Lee, and any pain and suffering Ms Lee. endured.

Was WMATA negligent?

After all of the closing arguments, the jury began their deliberations with a vote on the first question. Did WMATA negligence cause the collision? 5 jurors voted yes, while 3 voted no.

I voted yes, and was surprised at the vote. Wasn't it obvious that WMATA caused the accident? Hadn't WMATA's attorney even said that he would defer to the jury's decision on negligence, that his objection was to the amount of any damages?

The 3 dissenting jurors said this was a "no-fault" accident. There was hardly any property damage at all. The parties should have just walked away.

We objected that "no-fault" accidents aren't actually no-fault, the parties just declare them to be "no-fault" to keep their insurance premiums from rising. The dissenting jurors ultiamtely agreed, and the jury assigned negligence to WMATA with an 8-0 vote.

Did the accident cause damages to Ms. Lee?

The jury then voted on whether the accident was the "proximate cause" of any injuries or damages, a vote that went down 1-7. I was the 1.

Many of the 7 jurors voting yes argued that the nudge to the van wouldn't have injured passengers, but I argued that Ms. Lee was not just any passenger. She was more susceptible to injury than most passengers. In the words of Metro's own orthopedic surgeon expert witness, she was "a compromised host."

The 7 jurors argued Ms. Lee was clearly being used by her attorney and the attorney's physician, and that no award money would ever make it to Ms. Lee anyway.

I countered that no evidence had been provided contradicting Ms. Lee's claim to be in more intense pain following the accident. WMATA didn't challenge her claim to be in greater pain following the accident. So what basis does the jury have for saying she is lying?

All 8 jurors then agreed, some reluctantly, that they must conclude that Ms. Lee suffered injuries caused by WMATA. But they were hesitant to award more than a small award, convinced that all the money would go to Ms. Lee's attorney and the Ft. Washington physician to whom she had been referred.

Jury debates the award as a picture of Washington emerges

We read through the Ft Washington physician's $10,200 invoice line-by-line. Some jurors were comfortable ordering Metro to pay for all of his costs except for the last 6 visits to his office. That added up to about $8,500. Others were opposed to any such sum.

One juror in opposition argued that it was a minor incident, and it was completely unfair for taxpayers to have to pay $8,500 for a scrape of some car paint.

I argued to the jurors in opposition that that's precisely why motor vehicle transportation is so dangerous—it's unforgiving to the slightest infraction. You can glance at your phone while driving and cause multiple fatalities.

Another juror who opposed any award in the several thousands of dollars argued that we should consider what society owes Ms. Lee, and that in his judgment society owes her little. You can't quantify pain, and anyway she has been in pain for years for which society was already doing a lot.

I challenged the jurors in opposition to remember the question that we had all been asked by Ms. Lee's attorney before the trial: could we set our personal views on tort reform aside and decide on a verdict based on the judge's instructions? We had all answered yes to this question.

Our job was to assign objective values to these things, not to decide what society owed Ms. Lee or to send a statement to the judicial system with a small award.

Another juror said in frustration that he had always paid for his medical costs through college to this day, and taxpayers shouldn't have to pay Ms. Lee's medical costs.

Ultimately, the only figure we could agree on was $8,500 for her medical costs. I could have supported a larger award, as it made little sense to me to find medical costs reasonable but assign no value to the pain for which those medical costs were incurred.

Others were clearly unwilling to award a penny more, and I agreed that quantifying pain and suffering would be difficult. Ms. Lee's attorney had asked her no questions about her suffering and the consequences of the pain for her life, so we had little actual evidence on which to base an award for suffering or inconvenience.

Did the jurors' backgrounds inform their views?

The jury consisted of 5 white men, 2 black women and 1 white woman. The 2 black jurors spoke very little. 95% of the deliberations happened among the 6 white jurors.

It was clear that some jurors viewed Ms. Lee through a lens stereotyping much of Washington, an African-American in Southeast DC pulling every string in the system for her personal benefit while contributing little.

During the trial, though, a very different picture appeared to me. Ms. Lee dropped out of school in 11th grade, and still managed to become trained as a Certified Nursing Assistant and Home Health Aide. She worked in both professions until the age of 34, when the catastrophic crash in 1990 resulted in screws and rods in her neck.

She lived a quiet life for the next 20 years, in near-constant pain. She is on daily narcotics to this day to manage her pain, which she places at a 9 on a scale of 1-10. If not for her personal injury attorney, I'm confident that Ms. Lee would have filed no case against WMATA.

When you imagine walking in the shoes of someone like Ms. Lee, you realize that one man's ambulance chaser is another man's right to counsel. One man's medical expert for hire is another man's right to get a second opinion.

A jury, randomly selected from DC residents, and its deliberations provide a snapshot of how our city is changing, and how we solve bigger problems.

Sometimes I fear that the Washington that we are becoming has little interest to walk in the shoes of others, or even imagine what it would be like to do so. As DC grows, I hear too many who see our growth as a rejection of our past and of the people who built DC in the decades since Home Rule. We don't see ourselves as one city.

It was hard, on this jury, not to imagine how the jury deliberations would have been different 10 years ago, 20 years ago, 30 years ago. Can we grow and evolve as a city, and still see other residents as "in this together" with us?

The police were called to the scene and, after interviewing the parties involved, informed us that there is no violation unless there is contact between the cab and the cyclist. As there was no contact in this case, he was unable to issue any sort of ticket to the driver of the cab. Respectfully, I informed him that I did not believe that that was the correct interpretation of the law and I asked that his sergeant be called to the scene. The sergeant arrived, interviewed us again and then informed us that the first officer on the scene was correct and that there was no violation.

Is this, in fact, the law? Is nobody liable for damage in this case?

The husband of the cyclist who blocked the cab from leaving, "jrenault," posted on the BikeArlington forum about this. He said,

They're arguing that surely "failure to yield" covers what the cabbie did, but not getting anywhere. ... Apparently, according to the police officer, failure to yield must be witnessed by the officer or he can't write a ticket.

Other posters on BikeArlington suggest it might not be worth pursuing, not because the driver necessarily is blameless, but since nobody was seriously hurt, and it would be too much trouble to get the police to take action. It's also possible there is no clear answer here, and no law that speaks to this situation clearly enough.

Shane Farthing from WABA said he couldn't judge this specific incident without hearing more details, but had a broader comment about whether cyclists should want police to write tickets:

In many cases there will be some need for the officer to exercise discretion, such as whether an action was reckless or whether someone was passing too close under the circumstances. These elements are not all objectively defined. So while we want the roadways and laws to be predictable, there isn't always an objective yes/no answer to whether an action is lawful, and it's not always best for cyclists or anyone for officers to always default to issuing a citation.

We've seen several times in the past when an officer feels compelled to write a ticket, but doesn't understand the law well enough, the default ends up being to cite the cyclist, rightly or wrongly. If police always write tickets after crashes, that might mean they learn more about the laws, or it might just mean cyclists get blamed more often even when not warranted.

Still, taxis need to watch for cyclists when pulling out across a bike lane. Near-misses happen every day. Small collisions happen occasionally. The fewer of those, the less likely a serious injury or worse.

A letter from critics of Home Rule fretted that the DC Council "would be able to alter, amend, repeal or supersede virtually any law including Titles 22, 23, and 24 of the criminal code. (p. 1568) The majority (Democratic) House staff responded in their own memo:

The above statement is a prime example of an assumption of bad faith on the part of duly elected official sunder the bill. It is logical to assume that the local elected government will have just as much stake in maintaining peace, law, and justice as the presently appointed officials have in maintaining the integiity of the city government. (1645)

Nonetheless, the Congressmen in charge of the DC committee acceded to this concern in their committee print, the version of the bill they brought to the floor that tried to respond to some of the opponents' arguments. In that version, the titles of the DC Code involving crimes, criminal procedure, and treatment of prisoners were part of the list of laws the Council can't legislate, such as changing the height limit or imposing a commuter tax.

The House passed the bill with a prohibition on changing criminal laws. That would have meant that Congress would be the one still setting any criminal laws in DC. The Senate version did not restrict this, and the conference committee compromised by limiting this authority for only the first 2 years after Home Rule. (2361)

One-house veto lasted until Chadha and Gary

Congress didn't just let DC have complete control over the criminal laws after that. Instead, it set up a "one-house veto." Normally, to block a DC law, both houses of Congress have to pass a joint resolution, and the President has the ability to veto that, just like with a bill. That sets a fairly high bar for the federal government to overturn a DC law.

With the criminal code, Congress decided to make it easier. They added a provision that a change to criminal law will not take effect even if only one house passes a resolution against it. This one-house veto also applied to an act changing the Mayor or councilmembers' pay. (2917)

This provision lasted until 1983, when something got in the way: the US Supreme Court's decision in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983). There had also been a one-house veto in place for deportation decisions: the INS could hold off on a deportation proceeding for 7 years if deportation would create "extreme hardship."

The INS used this discretion to help Jagdish Rai Chadha, who had overstayed a student visa. He had been born in Kenya to Indian parents and had a British passport, but neither India nor Britain would let him back into their nations. The House used its one-house veto to block the leniency, but the Supreme Court held that since the Constitution specifies a set process for Congressional action including bicameralism (both houses must pass the same bill or resolution) and presentment (it goes to the President for the chance to veto), Congress can't decide to elect a different process for some actions.

The decision had far-reaching consequences besides INS procedures: it ended every one-house veto, including the ones in the Home Rule Act. In Gary v. United States, 499 A.2d 815 (1984), the DC Court of Appeals (DC's highest state court) struck down the one-house veto.

Therefore, District residents enjoy the ability to elect officials who can change the criminal laws as needed. A sympathetic young Indian/British immigrant led to Congress' power over the District growing a little less in a significant area.

All numbers in parentheses refer to page numbers in Home Rule for the District of Columbia, 1973-1974, Background and Legislative History of H.R. 9056, H.R. 9682, and Related Bills Culminating in the District of Columbia Self-Government and Governmental Reorganization Act, Approved December 24, 1973 (Public Law 93-198), Serial No, S-4, US Government Printing Office, December 31, 1974.

Agencies have settled for tens of thousands of dollars of public money to avoid spending even more to fight the lawsuit and try to invalidate the patent.

It's unclear whether anyone can, or should be able to, patent such a broad concept as tracking vehicles with computers. It's not some kind of a unique idea that only came from years of painstaking research, which nobody else thought of or would have. However, that's not exactly the standard for patents under current law, and the patent office often ends up granting unreasonably broad patents.

You can't patent something if someone already invented it and published about it, and that's what EFF alleges. They found a US Department of Transportation technical report from 1992 that describes just the kind of vehicle tracking in the patent. News articles talk about the Nextbus company's product, which also does this, from 1996. Yet the patent office granted Patent #7,030,781 in 1999 2006, but with a "priority date," the date before which prior art is relevant, of 1999 or 1993.

Some patents play a valuable role in ensuring inventors get some compensation for their inventions, and rightly so. They are especially important in fields that require expensive R&D, such as pharmaceuticals. However, for software and business methods in particular, a great number of patents go to whoever first files for a fairly broad idea, like streaming audio on the Internet, multi-player games, looking up bar codes in a database, purchasing things from inside apps, or having users send messages to other users of a website.

Coupled with a 17-year patent term that is far longer than the lifecycle of products in technology, these kinds of patents have done a lot of damage to innovation, by making it very expensive for anyone to develop a new product from scratch. They cost transit agencies money and can prevent transit riders from having the best information.

EFF has been pushing to reform a broken patent system. You can lend your voice at Defend Innovation and become an EFF member (I have been one for many years now). It'll help transit riders and many, many more people who benefit from innovative technology.

Uber claims their service is legal. Cheh's amendments would have made it unambiguously legal, but only so long as the service charges 5 times the price of a taxi for the "flag drop," the initial amount on the meter at the start of a ride. Perhaps not surprisingly, Uber's flag drop charge was exactly 5 times the current taxi flag drop fee.

The political details have been reported widely in the press. Uber members flooded Council inboxes, and Jack Evans (Ward 2) claimed to have received 5,000 emails. A number of councilmembers, like David Catania (at-large), said they didn't want to be setting policy around protecting the taxi industry, while Marion Barry (Ward 8) stood with taxi drivers.

Cheh decided to pull her amendments to give her a chance to rework them, likely in consultation with Uber. She said she did consult with Uber and thought they had a compromise; Uber's CEO says they never agreed to this language.

This story is a classic case of Silicon Valley meets Washington, even more literally than usual. Many startup companies encounter the world of laws, lobbying and legislation and find the culture gap baffling. It's not just Congress (which, for that matter, steps all over the District of Columbia government all the time); it's state legislators too, like the California state senators who tried to ban Gmail when it came out.

Often in these kinds of cases, everyone means well. Cheh is one of the Council's most thoughtful members and a strong supporter of transportation choices. She's no enemy of innovation; her staff organized a ride in Google's self-driving car and she raved about the experience.

The permission model or the innovation model?

But there is still a culture gap here. Specifically, there are two ways of thinking about how business meets law: the permission model and the innovation model. In one, there's some gatekeeper that has set out a list of things you can do and things you can't. If you want to do something different that nobody has done, you can get permission from that gatekeeper to allow it, if it has enough merit and/or you have enough influence. In the other, you can do what you want, unless it's so harmful that someone takes action to stop you.

Neither model is really purer or more original than the other. Some businesses have always worked according to one type, others in another. Mercantile England gave charters to companies to settle and trade in the New World. And the gatekeeper is not always the government. For instance, food marketing has always been more of a permission model: in order to get anyone to sell your new food, you have to get grocery stores to give it space on shelves, which generally means paying them.

Television has also always been a permission model. The first television networks got the rights to broadcast on certain frequencies from the government, which was the gatekeeper deciding which companies could be broadcasters and which couldn't. But when cable came along, the cable companies became the gatekeepers, and now they negotiate with channels about carrying their content or not; periodically, these negotiations spill out publicly when a channel runs ads saying that a cable company is going to cut off customers' access to that content.

Zoning converted an innovation model—you could build whatever you wanted—into a permission model where you have to get the okay from a zoning board to build something outside set parameters. The early frontier was more of an innovation model, where land was just about free and you could go set up a farm without having to buy someone else's land first.

The innovation model built Silicon Valley

Silicon Valley enjoyed the innovation model for a very long time. The Internet and protocols like TCP/IP and email, developed by academics, allowed anyone on one system to connect to any other system and share information. People could build websites that didn't need to get permission from the equivalent of the cable company. AOL and similar services had a more cable-like online offering at first, but the open Internet won out because users preferred it.

That's starting to change in a few ways. One is that fewer cable and phone companies control access to subscribers, and are starting to try giving some favored applications more privileges, especially to get around data caps, than others. A second is patents.

Patents turn an innovation system into a permission system by carving up the space of possible things you could do but haven't yet, and giving them to anyone who comes along and pays a fee to grab that piece of idea land. Patents don't stop someone from building a product, but they do force them to check with everyone who has patents in the area first and get their permission.

That impedes someone from building a better website that effectively competes with an existing one. It even stops organizations like transit agencies from doing the mostly-obvious, like letting riders track trains and buses in real time, because a "patent troll" has the patent and wants to extract money from anyone stepping nearby.

A number of technology/policy/economics writers, like Tim Lee, have been talking about the destructive effects of patents for some time, but running into resistance from an interesting quarter: lawyers. It seems that most lawyers, accustomed to the world of law where everything is set up with a rule, find the permission system of patents more familiar and comfortable than the innovation model. The problem is, familiar doesn't mean good; patents are slowing down Silicon Valley and favoring large, established companies.

Uber brings the innovation model to permission-oriented taxi regulations

What does this have to do with Uber? The Cheh amendment seems to be a standard regulatory approach. Uber may be illegal now. Pass a law that lets them do what they are doing. But to minimize the impact, limit the law to only let them do what they do now, and not just anything; if they want to do something else, maybe there can be another law.

Uber is coming at this from the Silicon Valley angle. Just do something and see if people like it. If they do, grow it. They understandably chafe at being given a box that circumscribes their existing business model but also walls off potential future directions they might evolve.

Riders also don't benefit from these rules. If Uber can compete with taxis, why not? Most people feel taxis could be a lot more comfortable, have better technology, and be safer. Giving riders more choices could mean some taxi companies thrive and others go out of business. That's competition, and it's healthy.

Cheh's bill also tried to address these taxi problems. It included provisions to force taxis to upgrade their equipment, start taking credit cards, and more. But it went about that, again, in a regulatory way. Rather than setting some standards (or just encouraging competition), it gave an exclusive contract to one company to put one set of technology in all cabs. That doesn't foster as much innovation as the alternative since the winner has the exclusive right to make the only product in this space.

The best way to improve taxis is to help riders find the best ones. Smartphone apps can start to do this and more and more people across the income spectrum are starting to have smartphones. As I recommended in a Post op-ed in January, let's allow any company that meets certain minimum requirements to pick up customers who phone in or use a smartphone app. Hailing a cab on the street can keep working like it does today.

The one necessary element is to demand that each competing company publish its rates ahead of time in an open format. Then, riders can use one of many apps (which can themselves compete) to compare taxi rates and pick a cab company.

It's not the regulatory, permission-based way of solving the problem, but it's the one that will foster the most competition, innovation, and value for riders.

Update: 2 additional brief points.

First, some Council staffers say Cheh's office really did believe they had an agreement from Uber. Uber's email, which just said the Council was trying to set a price floor without mentioning that it was also trying to eliminate the legal gray area, wasn't entirely forthcoming with all the facts.

It's not yet clear that Uber didn't just decide they didn't like the result of negotiations and could use political muscle instead. That's their right, of course, but something we should recognize.

Second, taxis are a regulated industry today. An innovation model might be better, but most taxis don't operate on one. It is indeed unfair to put a lot of regulations on one group of businesses in a space (the traditional taxis) and none on others (Uber).

My preference would be to move the industry more away from regulation and toward an innovation model instead of vice versa, but it's reasonable for taxis to ask to compete on a level playing field.

So why does this matter? Motorized bicycle owners are not required to pass a motorcycle skills test or wear a helmet and can ride in bike lanes. Most importantly, motorized bicycles can park in a bicycle rack or on a street curb "so as not to impede pedestrian traffic," while motorcycles must park in the street.

These parking restrictions cause problems for scooter owners because scooters are easily movable and they must be locked to something (a post or sign) or else they can easily be stolen, unlike a motorcycle. Because there is nothing to lock a scooter to when parked on the street, most scooter owners park on sidewalks, in violation of DC law. They frequently get tickets for doing so.

Because of the complexity of the rules, some scooter owners are unaware that they actually drive a "motorcycle" and cannot park on a sidewalk. Believing themselves to be unfairly ticketed, they resort to tactics like this owner, who posted the DC chart on a sign reading "PLEASE DON'T TICKET":

Scooter theft is a real concern. While there are no publicly available statistics about its incidence in DC (an inquiry to both the DC DMV and MPD went unanswered), seemingly every owner I've met has either had a scooter stolen in the past or knows someone who has.

It's time for city officials to understand the consequences of these regulations and to grant scooter owners the right to secure their property, or at least not write a ticket them for doing so.