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Lawyers are a modest breed, and intellectual property lawyers are particularly self-effacing. But fair’s fair. It’s time to stand up and take credit where credit is due. Throughout the late ’90s, we IP lawyers warned a wary world about the imminent dangers of the Y2K bug. We wrote articles. We gave speeches. We hosted seminars at expensive hotels, and we established large Y2K practice groups to be ready to handle the flood of legal work resulting from the catastrophe. Well, the Year 2000 came — and we were right! The Year 2000 Presidential Election has vindicated our direst predictions. The nation’s vote-tabulating machinery could not handle the first election of the new millennium. The problem (as we told you, over and over again) stems from the fact that some date-sensitive calculating machines were designed to read only the last two digits of any year. They assume that the first two digits of any year are “19.” Thus, in this year’s presidential election, some vote-tabulation machines assumed that the voters were casting their ballots in the Year 1900. This mistake had no effect in most parts of the country. The date-sensitive machines in those states just assumed that George W. Bush and Al Gore were running for president in 1900, and counted their votes accordingly. But some Florida counties use a particularly futuristic device called the “Vote-a-matic.” Like its sister invention, the “Veg-a-matic,” the Vote-a-matic incorporated the latest technology of its time. In a triumph of engineering, the patented Vote-a-matic is not only date-sensitive, but is also candidate-sensitive. Its memory contains the names of the candidates actually running that year. It was designed to assist voters, especially those with faulty memories, by guiding their votes toward candidates actually on the ballot. It accomplishes this by a default system which matches votes to the first letter in the last names of actual candidates. When it came on the market, the Vote-a-matic was hailed as a boon for elderly voters. Many senior citizens, especially liberal Jewish retirees, had wasted their votes throughout the ’60s and ’70s by stubbornly voting for Adlai Stevenson over and over again, even though he had stopped running for president (and indeed, by 1965, had stopped living). Some Florida county officials, including those in Miami-Dade and Palm Beach, thought the Vote-a-matic was a great way to ensure that the votes of their elderly constituents would count. Unfortunately, they did not consider the impact of Y2K. On Nov. 7, when voters went to the polls, the Vote-a-matics assumed they were voting in the Year 1900 presidential election. This simple miscalculation caused the confusion which has bedeviled the candidates, the courts, and, ultimately, the entire nation. In 1900, the candidates for president were William McKinley and William Jennings Bryan. The Vote-a-matics functioned just as they were designed to do, and tried to reconcile the voters’ selections with the available choices. This was no problem for Bush and Buchanan voters. Since Bryan was programmed into the machines’ memory, they dutifully tabulated any vote for a candidate beginning with the letter “B.” But votes for Gore confused the Vote-a-matics. No candidate with the letter “G” ran for President in 1900. So the machines did the best they could and randomly assigned those votes. Some Gore votes were attributed to Bush. This accounts for the surprising reports that Bush did better among senior citizens than pollsters had predicted. Some Gore votes were attributed to Buchanan. This accounts for the astonishingly high tally that this unlikely candidate received from Jewish voters. And, of course, many votes were just thrown out. This accounts for the high percentage of so-called “under-votes” from Miami-Dade and Palm Beach counties. Gore got some, too, but fewer than expected. The Y2K glitch also explains why the national networks were all over the map trying to project Florida’s vote. First the networks projected Florida for Gore. Then they projected it as too close to call. Then they projected it for Bush. Then they projected it as too close to call again. Conspiracy theorists have interpreted the media’s tergiversation as proof that the networks were trying to influence the voters to favor one candidate or the other. In fact, the networks were veering like an intoxicated motorist because their shared voter projection service was keyed into the county vote tabulators, including the Vote-a-matics. As the Y2K-infected machines randomly assigned votes, the networks’ projections careened from one candidate to another with the same erratic aimlessness. No wonder Dan Rather began blathering incoherently. Not every politician was caught flat-footed by the technological glitch. Former Sen. Bill Bradley saw it coming, and warned his party: “Al Gore cannot be elected president.” Bradley knew his political history, and realized that as the only Democratic candidate whose last name began with the letter “B,” he was his Party’s best hope. But, Cassandra-like, Bradley was ignored. While we IP lawyers are patting ourselves on the back, we should also mention another example of our prescience. We predicted that the Y2K bug would cause massive litigation and provide full employment for lawyers. We were right. Again. Most commentators have lost count of the number of lawsuits underway right now. The most recent estimates show the Gore campaign with more than 200 lawyers at work in Florida, and the Bush campaign with a number at least as large. Both campaigns were chartering airplanes to fly in fresh supplies of litigators. In view of our loud and repeated warnings, it is incredible that county officials allowed the Y2K bug to infect our electoral process. Surely, it won’t happen again in 2004. But it seems the Republicans are hedging their bets. In 1904, the candidates were Theodore Roosevelt and Alton Parker. That’s an “R” and a “P.” Has anyone noticed that while George W. Bush remains out of the spotlight, Republican Party leaders are showcasing Montana Governor Racicot, Pennsylvania Governor Ridge, New York Governor Pataki, and Gen. Colin Powell? Republicans can’t afford to take chances — especially not with Senator Hillary Rodham waiting in the wings. Lawrence J. Siskind, of San Francisco, Calif.’s Harvey Siskind Jacobs, specializes in intellectual property law. He can be reached at [email protected]

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