ShoutingLoudly

THIS BLOG HAS MOVED

2006-03-13T08:40:00.000-08:00

Hey folks,

ShoutingLoudly.com is now the host of our blog. All the old posts have been carried over. We hope you'll join us at the new and improved ShoutingLoudly.

Bill

Update: Bill Herman has also posted a static website with some professional information. See BillyHerman.com for more

This Blog Is Not A Pipe Bomb

2006-03-07T08:27:00.000-08:00

An Ohio University graduate student was recently charged with a misdemeanor for inducing panic when the Columbus Division of Fire's bomb squad shut down several buildings and destroyed his bicycle. The cause for concern was a sticker on the bike featuring the name of a Florida punk band, "This Bike Is Not A Pipe Bomb." Officials say that there would have been no problem had the sticker been put on a telephone pole instead. The Columbus Dispatch has the details.

On the one hand, we must recognize that context is everything, and it is probably unwise to label your personal goods as homemade explosives just as it is unwise to tell terrorist jokes in the line at the airport. On the other hand, what kind of terrorist mass-produces stickers for actual bike-shaped pipe bombs?

Update: I just noticed that the University dropped the charges today.

Times' (slow) tech news: Another example

2006-03-06T09:58:00.000-08:00

Today, another good example supporting last night's thesis: the Times has respectable tech and tech law coverage, as long as you don't mind being a bit behind the curve and missing some of the nuance. Their stuff is uninspiring, and if you're reading it there for the first time, you'd better not need to know it, but it'll do for most people.

This article is really about network neutrality, but they don't use the phrase or tip readers off to the online resources discussing the issue. In all fairness, they did urge net neutrality in an editorial several weeks ago. Still, this has been brewing for a couple years now and the Times is just getting hip to it as it's boiling over in Congress. Another serious drawback: they fail to note Sen. Ron Wyden's (D-OR) bill to preserve network neutrality.

This is the tech law crisis of the year. In the early days, right wing groups like the Progress & Freedom Foundation described net neutrality as a problem in search of a solution (pdf). (Less tech-hip neocon groups have adopted the language, too. Here's just one example.) Nobody would ever discriminate, broadband providers insisted, so why regulate?

In the last several months, this has changed radically. In November, SBC CEO Ed Whitacre said the following in a Business Week interview:

Now what they would like to do is use my pipes free, but I ain't going to let them do that because we have spent this capital and we have to have a return on it. So there's going to have to be some mechanism for these people who use these pipes to pay for the portion they're using. Why should they be allowed to use my pipes?

At the time, SBC PR people and the telecomm industry generally denied that this was their new business model. Now, they're being more honest about it. FreePress has noticed this pattern of telecomm execs admitting that charging content providers is their new business model. Add Verizon Sr. VP John Thorne to that list.

In this Times story, there's no history of industry obfuscation of their long-term goal to create tiered delivery of content based on content providers' payments. There's no sense of where the legislation is at. It's just a catfight between internet big wigs, stripped of its context, with less than a full sense of what's at stake.

Again: if you read the Times for your tech news, at least you won't be clueless. You will, however, come to debates long after they have been framed by corporate, government, and advocacy group spin doctors. That just seems like a low down dirty shame.

Analysis: Times' tech news

2006-03-05T16:43:00.000-08:00

I've long been thinking about--and linking to--Times coverage of technology and tech law; I now share that thought.

The Times is a respectable source for technology and tech law news--they don't give the blow-by-blow details of every story, and they're not always the fastest, but they cover almost all the truly big stories before they get stale and do so pretty well.

Basically, I would now recommend the Times to anybody who doesn't have the time, patience, or energy to really stay on top of tech news the "right" way--the blogosphere and tech news outlets. But if you're even reading this, you probably think I'm being ironic because you already know more about tech news than anybody who would take this advice. Just in case...

If you reeeeally want to be hip, read CNet's News.com.com, Slashdot, and BoingBoing. (These are the tip of the iceberg; other good examples include Techdirt, EFF.org, and National Journal's Telecomm Update.) If you want to be kind of hip, read a platform-specific magazine such as PCWorld, Macworld, or MacAddict. If you just don't want to be freakin' clueless, read the Times technology section.

It's nice that the nation's paper of record is serving as the backstop in the digital millennium, though they're really missing a chance to be exceptional. By the time they get around to something, most people who care already know. At least they're a good barometer that a subject has hit the national consciousness.

Two great examples were on the site today. First, there's a piece about WiFi moochers. Second up to bat, how much profit is lurking in cell phones? These articles are decent, but for whom is this stuff news?

The Times would have a shade more tech credibility, IMO, with just one change--they could offer permanent links rather than forcing bloggers to use the NYTimes Link Generator. A tangles mass of blog links will never be a substitute for their paid archives search, and they would be a more legitimate source for the blogosphere.

Okay, they've already given out the first three Oscars (Stewart is doing better on the fly than with any of his scripted stuff, which hit flat), so I'm done now.

DoJ investigates music price fixing

2006-03-03T16:45:00.000-08:00

Here's a shock: the big 4 music labels are under investigation by the DoJ for price fixing.

Pay your bills, set off Homeland Security flags

2006-03-03T12:18:00.000-08:00

Scripps Howard tells the story of a very ordinary married couple who paid off a large chunk of their credit card bill and thereby attracted the attention of Homeland Security.

Pay your bills, get harassed by secretive federal agency. That's awesome. In fact, that's exactly what the Founding Fathers had in mind when they wrote the Fourth Amendment.

Three cheers for those who would keep America scared (mov).

Sen. Wyden drops his net neutrality bill

2006-03-02T14:02:00.000-08:00

Today, Senator Ron Wyden (D-OR) introduced a bill mandating network neutrality today. Without it, companies like Verizon and Comcast will begin to create a tiered, even walled internet, where content providers that can pay for the delivery of their bits will get speedier access (or any access) to ISPs' customers.

In another article, Wyden talks in detail about his concerns about the future of the internet and what he hopes the bill can accomplish.

Further links here and here and here and here. Not that anybody thinks this issue is newsworthy.

Phila Weekly covers FreeCulture protest

2006-03-01T21:30:00.000-08:00

In today's Philadelphia Weekly, on page 18, there's a picture of me holding a flyer that says "Are you buying a dangerous CD?"

The story, Copy Cats, is another great media clipping covering the antics of FreeCulture.org.

Saturday, we were protesting outside Tower Records on South St.

We believe that the major music labels are using deceptive business practices and stealing legal rights from consumers. They cripple more and more new CDs with digital rights management technologies. In the most egregious case, Sony infected millions of computers by installing malicious, hidden software (a "rootkit") onto Windows computers of users who merely inserted a Sony music CD.

I have to publicly admit that, even though I am the one pictured, I deserve little credit for the protest. FreeCulture Swarthmore students organized it; I just showed up.

I guess I was the most menacing presence. As noted in the article, I "embarrassed" the other students and pissed off the Tower Records management.

This is just further proof that, for a group dedicated to information policy wonkdom , FCo sure is good at landing earned media.

Update: this story is now also on BoingBoing; here's the link. Thanks, Cory.

Wonderful rant: DRM stinks

2006-03-01T21:17:00.000-08:00

Read this rant about the big DRM mistake. It's on Security Focus, which is dedicated to issues of computer security.

This is further proof that even most people who are interested in creating and refining secure computer software think that DRM is a joke.

"Amen Break" & sampling: praise be!

2006-02-24T13:19:00.000-08:00

If you care about music and/or copyright, watch this documentary (of sorts; you'll see) about the Amen Break now. (Takes forever to load/is very big; suck it up.)

Thanks to Bethany Klein for the link. Also via BoingBoing.

Will public access TV go dark?

2006-02-24T10:05:00.000-08:00

AM New York is scared that it will under the new telecomm act.

Link via FreePress.

Net neutrality clause nixed from bill

2006-02-24T09:58:00.000-08:00

It appears as though the House Energy & Commerce Committee has nixed net neutrality from the new telecomm act.

Quoth Cartman, "Weeeeeeak!"

Protest DRM on South St. this Saturday @ 12

2006-02-22T18:31:00.000-08:00

Care to join Nelson & the rest of Free Culture Swarthmore as they protest digital restrictions on the music you buy?

The protest is at noon this Saturday at Tower Records at 610 South Street in Philly. See the press release for more. Also, feel free to contact me.

Here's a map of the location.

See you there!

How to win DMCA exemptions

2006-02-21T09:49:00.000-08:00

Here's a brief coaching session from Seth Finkelstein. He tells you how win exemptions from the DMCA ban on circumventing access controls.

This is both more directly useful and easier to read than my writing on the proceedings. Nonetheless, Seth did give me a link right after I posted Catch 1201 on SSRN.

I didn't discover it until weeeeeks later... Eh, can't blog full time.

Keeping Secrets

2006-02-21T09:39:00.000-08:00

Here's sort of a puzzling article in the New York Times. The Times charges for archived content, so here's the long and the short of it:

WASHINGTON, Feb. 20 — In a seven-year-old secret program at the National Archives, intelligence agencies have been removing from public access thousands of historical documents that were available for years, including some already published by the State Department and others photocopied years ago by private historians....

One reclassified document in Mr. Aid's files, for instance, gives the C.I.A.'s assessment on Oct. 12, 1950, that Chinese intervention in the Korean War was "not probable in 1950." Just two weeks later, on Oct. 27, some 300,000 Chinese troops crossed into Korea....

But the historians say the program is removing material that can do no conceivable harm to national security. They say it is part of a marked trend toward greater secrecy under the Bush administration, which has increased the pace of classifying documents, slowed declassification and discouraged the release of some material under the Freedom of Information Act.

Experts on government secrecy believe the C.I.A. and other spy agencies, not the White House, are the driving force behind the reclassification program.

I'd love to learn more about this, but apparently, the reclassification program itself is shrouded in secrecy—"governed by a still-classified memorandum that prohibits the National Archives even from saying which agencies are involved," as the article notes.

Update: Bill reminds me that you can generate permalinks from the New York Times Link Generator, so here is the whole story.

Reg of Copyrights concedes (C) term is too long

2006-02-21T09:22:00.000-08:00

Via Boing Boing:

Marybeth Peters, the Register of Copyrights, has publicly stated that the copyright term is too long. In context, she effectively says that it's been hijacked and turned from a law designed to benefit the public interest to one designed to benefit publishers, though this is implicit.

Perhaps I've been too critical of Ms. Peters in my recent writing, notably in Catch 1201 and in my DMCA exemption proceedings reply comment (pdf). I still disagree with several of the conclusions she has drawn--particularly her willingness to ignore real harms as "mere inconveniences" and to give the entertainment industry a free pass on claims of widespread infringement that would supposedly come from proposed exemptions. But I'm pleased to see another bit of evidence that she's willing to speak on behalf of the public interest.

BBC: Let copyrights expire

2006-02-20T17:34:00.000-08:00

Here's a thoughtful piece by the BBC about why music copyrights--yes, even in Beatles records--should be allowed to expire after 50 years.

The article only advocates allowing the mechanical licenses to expire, not the copyright in the song (which lasts for the life of the artist plus 70 years). The latter goes to songwriters whenever a song is sold or played on the radio; the former goes to music companies.

I also do not think that artists should get 70 years of post-mortem rents on their creations, but it's refreshing to see such a major news organization advocate against the unending extension of copyright protection on any front.

NYT editorial for net neutrality legislation

2006-02-20T09:49:00.000-08:00

As seen here.

Brrreeeport: Bloggers are silly

2006-02-18T09:25:00.000-08:00

Just check out the Brrreeeport phenom. Apparently, it started here. It's almost as much fun as the miserable failure googlebomb.

FreePress: Bust big radio payola

2006-02-18T09:11:00.000-08:00

FreePress has a good bit of info and some easy actions to bust payola.

Siva on The Daily Show

2006-02-17T17:18:00.000-08:00

So my friend Siva was recently on the Daily Show.

It's pretty funny. Not Stephen Colbert funny--and certainly not Jon Stewart funny--but maybe Rob Cordry funny. The best part is watching Siva play along, like he's sooo offended. He totally gets it the whole time and plays a good straight man.

I don't think he'll need his Abbott shtick any time soon. Siva's well on his way to earning tenure at NYU, and he interviewed for a job at ASC.

Props to Lok for the link, but I'm surprised he didn't post it here or on Silent Dreams.

Voter dBases carry privacy, security threats

2006-02-17T08:30:00.000-08:00

Described on CNet here. It describes an ACM report that is availabe here.

Scary stuff.

The "nightmare" of HD DVD copy controls

2006-02-16T08:59:00.000-08:00

CNet has a downright frightening story about the copy controls bundled with the new DVD formats.

When the first high-definition DVDs finally hit shelves this spring, a mad scramble may ensue--not for the discs themselves, but to figure out what computers and devices are actually able to play them in their full glory.

Unraveling the mystery won't be easy. Many, if not most, of today's top-of-the-line computers and monitors won't make the cut, even if next-generation Blu-ray or HD DVD drives are installed.

Under the "good" scenario, this means paying more for HD DVDs only to see them in sub-DVD (euphemistically labelled "near DVD") quality. Here's the really bad scenario (read the article; I wish I were making this up): Vista, the (eternally forthcoming) new Windows, will shut down your DVI monitor output unless you install MPAA-sanctioned copy controls.

Studios have persuaded Microsoft to add a feature in the upcoming Vista operating system that can shut down that connection altogether, unless the computer has an Intel-created encryption technology called HDCP, or High-bandwidth Digital Content Protection, turned on to guard the signal all the way to the monitor screen.

Put another way--if the DVD doesn't like your plug, your monitor may go black.

With luck, the backlash here will echo the Sony rootkit fiasco. If we're unlucky, our digital freedom will just suffer another hit due to MPAA greed.

"Good Fences Make Bad Broadband"

2006-02-16T08:55:00.000-08:00

I'm really embarrassed to be 10 days behind on this post, but here's a link to the Public Knowledge white paper on network neutrality.

"Copyright Criminals" remix contest deadline extended to Mar 14

2006-02-16T08:49:00.000-08:00

Kembrew McLeod, one of the contest's three judges, personally asked me to spread the word. Here's a blurb from the contest website:

This is a contest for artists to mix audio tracks under 4 minutes which use provided voice samples from Ben Franzen and Kembrew McLeod's forthcoming film, "Copyright Criminals." Samples from the film include voiceovers from De La Soul, DJ Qbert, members of Public Enemy, Matmos, Coldcut, members of Negativland, and others. The best overall winner will be included prominently in the film and the top 11 other entries are to be included on a companion CD. Judging entries along with McLeod and Franzen is Jeff Chang, author of the American Book Award-winning "Can't Stop Won't Stop: A History of the Hip-Hop Generation" and co-founder of the influential label SoleSides (now Quannum Projects), responsible for launching the careers of DJ Shadow, Blackalicious, Lyrics Born and Lateef the Truth Speaker.

Boy do I wish I had the time to play! I hope you do. Please spread the word as far as possible.

NIH policy of voluntary online publishing has failed

2006-02-16T08:35:00.000-08:00

Straight from the Public Knowledge "In The Know" mailing list:

The latest report from the National Institutes of
Health on the public access program shows, once again, that the
voluntary approach to having researchers post their papers online
isn't working. Between May 2, 2005 and Dec. 31, 2005, a grand
total of 1,636 peer-reviewed articles were posted to the PubMed
Central site. The posted articles are 3.8 percent of the total of
about 43,000 eligible articles. Nine of the 11 non-NIH members of
the agency's advisory group recommended that the policy be made
mandatory. NIH said in the report that it will continue to work
with researchers, journal publishers and others to improve public
access. The report is here:
http://publicaccess.nih.gov/Final_Report_20060201.pdf

What a damned shame; leaving invaluable knowledge locked in proprietary databases.

P.S. This is our 100th post on ShoutingLoudly. Rah.

Cable co. uses BitTorrent to distribute content

2006-02-14T12:26:00.000-08:00

Check this out. And US entertainment lobbyists wanted to ban peer-to-peer technologies because they might induce piracy.

Every new technology is the end of the entertainment industry as we know it--until the entertainment industry finds a way to capitalize on it. Previous end-of-the-world technologies that were assailed by media companies include the player piano, the radio, and the VCR. Why do people forget this when talking about the internet?

Multiple privacy stories from CNet

2006-02-14T07:46:00.000-08:00

I'm on a custom email news list from CNet. If you follow information & tech law at all, I highly recommend it. I get IP, privacy, and media law stuff, and it's usually 2-5 stories a day. Today, it was maybe 10 stories, and a much higher proportion than normal were privacy related. This increased visibility for privacy rights (not to mention the Fourth Amendment) is a clear outgrowth of the DoJ's neverending quest for more surveillance under less judicial supervision. To wit:

Week in review: The spying game

Gonzales: NSA may tap 'ordinary' Americans' email

White House disclose details on surveillance

Patriot Act email spying approved

Bill would force web sites to delete personal info

Four steps back, and one longshot chance at a step forward.

Fair Use Comics

2006-02-13T21:01:00.000-08:00

If you're like me, you probably know a wee bit about intellectual property law, and you'd like to know more, but you don't really have time to research it much. Fortunately, for folks like us, there's always the funnybooks. Keep your eyes open this spring for a comic about fair use (to be available free online and also through Amazon).

1201 exemption reply comment online

2006-02-11T11:50:00.000-08:00

I was rather excited to participate in the 2006 triennial DMCA exemption hearings, especially after writing Catch 1201 (along with OHG), a systematic study of the last two rounds. Here's my reply comment (pdf).

If you go down the list of reply commenters, it's impressive how the field of communication studies came together to support Decherney (pdf), Sender, and Delli Carpini on this one. In addition to a reply comment (pdf) by Decherney et al. and my submission, reply commenters include:

Michael Haley, the executive director of the International Communication Association, submitting Reply Comment #26 (pdf).

Stephen Prince (an ASC alum and protege of Paul Messaris), submitting Reply Comment #28 (pdf) on behalf of the Society for Cinema and Media Studies.

A long list of comm scholars, capped off by Kembrew McLeod, with Reply Comment #16.

If it gets any traction, the "Penn exemption" will be a landmark. I, for one, will be there live this spring. Here's hoping Marybeth Peters plays ball.

Help Wanted: Must wear mark of beast

2006-02-10T16:03:00.000-08:00

A Cincinatti video surveillance company, CityWatcher.com, has begun implanting employees with RFID chips. They're injecting these VeriChips into certain employees' triceps to serve as ID tags.

See the story here at WorldNetDaily, which is staffed by people whosse views are quite divergent from my own. Nonetheless, I sincerely hope that Americans' religiosity can be called upon to prevent the widespread adoption of RFID implants. After all, how could we get much closer to the mark of the beast?

For a more mainstream account that verifies the CityWatcher story, see The Register.

Props to fellow ASC student Susan Haas for tipping me off to this one.

"Policy wonk finds fiance"

2006-02-09T17:14:00.000-08:00

I don't generally use this blog up to post personal stuff, but this is worth sharing: I am now engaged to Tina Collins. I just finished comprehensive exams a couple weeks ago, which I used as an excuse to get out of town (Ocean Grove, NJ, to be exact) and surprise her with a marriage proposal. I've been in love with her for nearly a year now, and we're very excited about the wedding.

I promise NOT to rehash the blow-by-blow details of wedding preparation here, but I will at least post once more to note that we have gotten married. (In the mean time, we still have to pick a venue and date...)

Interview w/ Richard Stallman on LinuxP2P

2006-02-06T15:59:00.000-08:00

Read this interview.

While I don't agree entirely with his views, Stallman is somebody who believes in freedom more deeply than anyone I can name.

My new article on SSRN

2006-02-03T15:53:00.000-08:00

I've just received the PDF for my article, "Scratching Out Authorship: Representations of the Electronic Music DJ at the Turn of the 21st Century," from the editor (Rick Maffei) at LEA. The article is in the next issue of Popular Communication.

Here's the link, where I've posted it on SSRN. Feedback is always welcome.

Good news? LEA's publication agreement (pdf) allows me to post this publicly, forever. Bad? I had to PAY $18 for the pdf and will only get one hard copy gratis.

MPAA Pirates a Movie

2006-01-25T17:18:00.000-08:00

The irony of this is so delicious that it makes my mouth water: The Los Angeles Times reports that the MPAA is accused of pirating a movie (pretty much by their own definition).

The MPAA admitted Monday that it had duplicated "This Film Is Not Yet Rated" without the filmmaker's permission after director Kirby Dick submitted his movie in November for an MPAA rating....

Scheduled to debut at the Sundance Film Festival on Wednesday night, "This Film Is Not Yet Rated" examines what Dick believes are the MPAA's stricter standards for rating explicit depictions of sex than for gruesome violence. Dick also explores whether independent films are rated more harshly than studio films, whether scenes of gay sex are restricted more than scenes of straight sex, and why the 10 members of the MPAA's ratings board operate without any public accountability....

The standard the MPAA is using for itself appears to be at odds with what the organization sets out for others: "Manufacturing, selling, distributing or making copies of motion pictures without the consent of the copyright owners is illegal," the MPAA's website says. "Movie pirates are thieves, plain and simple…. ALL forms of piracy are illegal and carry serious legal consequences."

This sounds fairly likely to be a carefully-planned publicity stunt on the part of the filmmaker. I wish all publicity stunts were this funny.

Take action: demand network neutrality

2006-01-24T12:31:00.000-08:00

A federal policy of network neutrality would prevent broadband service providers from determining which webpages and applications are delivered at top speed and which are stuck in the slow lane--or blocked completely.

Follow this link to a FreePress Action Alert. Also, call or write your congresspersons.

Additionally, I have written a policy paper in Ed Baker's class on this exact issue. It's still a rough draft, but if you're interested, email me.

Another story on Google v. DoJ, and nonmarket online actors

2006-01-20T20:03:00.000-08:00

In my original post on Google v. DoJ, I'd intended to include a link to this NYT story as well as the two CNet pieces. Unfortunately, my standby source for such links--the NYT Link Generator--failed to produce a usable permalink. (Props to Nelson Pavlosky for telling me about this site, which is generally awesome.)

Here's the cool part of the story: at a quarter past noon, I emailed to note that the link didn't work--merely on the assumption that this would, maybe, help them improve their link generator.

Going above and beyond the call of duty, Aaron Swartz, who runs the site, emailed me with a live link back to the generator that, once clicked, produced a working permalink to the Times story. He did so by 9:30 tonight, a turnaround time that puts most email-based technical support services to shame. Mondo props to Swartz for the high-quality "customer" service, except that I've never paid a dime.

Why would someone create and service a valuable online tool for no compensation? (No ads on the site, either.) The NYT Link Generator is probably a better example than ShoutingLoudly, but why do I create online journalism for free when I could be mixing records or watching TV?

This question of nonmarket actors is a featured topic in Yochai Benkler's forthcoming book, The Wealth of Networks: How Social Production Transforms Markets and Freedom. Benkler's book, expected April 3 from Yale U Press, is getting stupendous reviews.

I have nothing to say on the subject that's not cliche, but even in the early draft of the intro that I managed to snag (I somehow suspect Benkler will forgive me for this), he sure does.

Illegally singing "Happy Birthday"

2006-01-20T10:06:00.000-08:00

The Free Culture club at Franklin & Marshall college arranged a massive act of civil disobedience yesterday in honor of Ben Franklin's birth. Over a thousand people sang "Happy Birthday," which is still under copyright, without paying a dime.

That's right: singing "Happy Birthday" in public, without paying, is illegal. And some people think we don't need copyright reform?

Here's what the group had to say:

I’m glad to report that all went through without a hitch. The group made “I Sang to Ben” buttons that were handed out to protestors/singers and flyers explaining the Founders’ views on the proper role of copyright and patent law were distributed throughout the day.

Read about it and see pix here; sorry I can't link to a story-specific anchor. If it's no longer the top post, look for the Jan 19 story, "Singing a Success."

Happy Birthday indeed.

Google stiffarms DoJ data fishing

2006-01-20T08:57:00.000-08:00

Props to Google for refusing to roll over and comply with a creepy Department of Justice subpoena demanding a sample of their search logs and a sample of their index of web pages.

In contrast, add MSN, Yahoo, and AOL to the ranks of the expeditiously obedient.

DoJ is seeking to defend the patently unconstitutional Child Online Protection Act. Search engines are convenient sources of massive amounts of data about online use patterns, so they went for the big targets. Read about it at CNet.

Should you, the average internet user, be worried? Here's CNet's answer:

Q: I used those search engines in June and July. Should I be worried about my privacy?
It depends. If you typed in search terms that you consider to be private or confidential, you should be concerned. Such terms might include personal information about you, such as your name or street address.

But what's important to note is that the Justice Department has not been asking for any information that would link those search terms to your identity. It hasn't requested Internet Protocol addresses.

So if you typed in search terms indicating that you, say, have a healthy interest in marijuana cultivation, the data turned over won't implicate you.

I'm strongly inclined to believe Google's associate general counsel, Nicole Wong. Google "is not a party to this lawsuit and (the government's) demand for information overreaches." Amen.

One more time: let's hear it for Alberto Gonzales' deep and abiding respect for the Constitution. (On a side note, that American Progress site is Google's first hit about AG the AG. This is a more valuable example of Googlebombing, made famous by the search for miserable failure.)

Domestic spying: illegal AND ineffective

2006-01-17T06:22:00.000-08:00

FBI to NSA: why are you dropping all this useless data in our laps?

"We'd chase a number, find it's a schoolteacher with no indication they've ever been involved in international terrorism - case closed," said one former F.B.I. official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration."

Another juicy detail is that FBI Director Robert S. Mueller III contacted top admin officials to ask whether the whole program was even legal. He was {shock}deferred to Justice Department legal opinions{/shock}, which I'm sure were filled with {sincerity}the highest quality of legal reasoning{/sincerity}.

Story from the Times.

The Law to End All Flame Wars

2006-01-09T22:30:00.000-08:00

President Bush has signed into law legislation that makes it illegal to anonymously "annoy" people on the Internet. Yes, it is as vague as it sounds. If writing a satirical blog post under a pseudonym is considered "annoying," you could potentially go to prison for up to two years. We have our own Sen. Arlen Specter to thank in large part for this one.

DRM Hornswoggles Spielberg and British Film Academy

2006-01-09T19:40:00.000-08:00

Here's a short piece at BoingBoing about how Spielberg's Munich probably won't be considered for the British Film Academy awards because the DVD sent out for review won't play on the award voters' DVD players.

Thank God for Elliot Spitzer

2006-01-05T08:07:00.000-08:00

As I noted before, Steve Jobs' stubborn refusal to play ball put a cramp in major music labels' shortsighted attempts to jack up online pricing. Now, Elliot Spitzer (who's running for Governor of New York this year) appears to have called the labels on their anticompetitive behavior.

See the story on CNet. This has happened before. In 2000, 28 states went after the labels for working together to prop up CD prices.

Laying the Ashdown on Hatch

2005-12-18T13:45:00.000-08:00

Earlier this week, I was infuriated by this article by Makan Delrahim. It's filled with false dichotomies and ad hominem attacks on Mark Cuban and Senator Orrin Hatch's political foes. It's also factually inaccurate on several counts.

I was pleasantly surprised to see Senate Candidate Pete Ashdown defend himself in an LTE today. The letter was prepublished on Ashdown's blog.

Ashdown has signed the IPac Statement of Principles and is specifically running to stop Hatch's unhinged pursuit of ever-stronger copyright protection.

How refreshing.

Blogging a dead horse

2005-12-18T00:17:00.000-08:00

I know I already complained about her article, but Susan Cheever's misunderstanding of copyright law is just driving me batty.

She literally maps the entirety of property law onto copyright law and uses this half-suited metaphor to guide her highly moralistic judgements. In a December 12 Newsday piece entitled "Just Google 'thou shalt not steal,'" she makes copyright claims that would make even Jack Valenti blush. (Okay, so that's a metaphor, too. BUSTED.)

To wit:

Words are property. This principle has been upheld by the law since 1710, when the first copyright law was passed.

Actually, Ms. Cheever, you're talking about the Statute of Anne, which (according to the text of the Act and every generation of British Parliament since its passage) says no such thing. Quite the contrary. British publishers even arranged a collusive lawsuit to try to apply common law principles of property to copyright in books, which failed. When a real lawsuit came out as the publishers wanted (Millar v. Taylor, 1769), that principle actually did make it onto the law books--for five whole years. It was overturned by Donaldson v. Becket in 1774, and the Donaldson precedent--that the copyright monopoly is not subject to the common law rules of tangible property--has stood ever since (Vaidhyanathan, 2001, pp. 42-43).

Let's try one more:

It's a strange experience to see your own property in someone else's possession when they haven't asked your permission for it or paid for it. It's disorienting and infuriating. You've been robbed. That's how it feels when something of yours suddenly appears in cyberspace, whether it's a chair or a book excerpt, a table or a newspaper column.

I cannot speak to how Ms. Cheever feels when she has her words appear online without her permission, but it sure is a lot different than if and when her lounge chair appears on eBay (a comparison she literally makes). If I take her La-Z-Boy, she has one less. If I take her words (as I'm doing now, in fair-use-sized chunks), those words are still just as I found them.

Speaking of fair use:

The Copyright Statute also includes a "fair use" clause, so that a few lines or phrases of a writer's work can be used as illustration by someone else. The amount of words that constitute fair use varies according to court case. At present, it is 400 words.

While I'm no attorney, I'd be much more comfortable using 401 words in a book review than I would be giving out such patently incorrect and totally unfounded legal advice. I've been obsessively studying the copyright debate for a few years now (ask my friends and family; they'll vouch), and I had never even heard this claim before. But I knew the "400 words" detail had mattered at some point. So I looked it up. It's from the Harper & Row v. The Nation case. Harper was about to publish Gerald Ford's autobiography. Time Magazine had an exclusive deal to prepublish a 7,500 word excerpt. The Nation scooped Time, publishing around 300-400 words. Because this snippet was the most interesting part (Ford's discussion of how he felt as he pardoned Nixon), the court ruled that it was not fair use. The Supremes upheld the District Court's ruling that The Nation took "the heart" of the work, directly reducing Harper's ability to collect revenue from this subsidiary revenue stream. (Time pulled out, costing them $12,500.)

Here's how dead-ass wrong Cheever got it. The key finding was that a quotation of even less than 400 words could be an unfair use if done in a bad-faith attempt to undercut a publication's market value. In contrast, I could probably quote well over 400 words of Ms. Cheever's radical misunderstanding of copyright law and, since her piece is already published and I am engaged primarily in withering criticism, I would be on reasonable footing to make a fair use claim.

One more:

Google doesn't like the copyright laws as they have existed for centuries.

This is a profound inversion of who's really changing the rules around here. At the behest of the copyright industries, we've gone from something resembling a coherent (if still not public-interest-minded) copyright law to what most commentators describe as a system of insane, overreaching, incomprehensible, First-Amendment-squashing copyright law. (See, e.g., some of the work by David Nimmer, by all acounts one of the foremost experts on US copyright law, who tries but fails to see recent reforms as minimally comprehensible.)

For example: thanks to 17 USC Section 1201 of the DMCA, simple curiosity involving me, a computer, and a half-baked encryption scheme like CSS can get me convicted for a federal crime. Breaking back into my own house because I lost the key is 100% legal, but breaking into my software installer because I lost the key puts me at a legal risk involving fines in the range of thousands of dollars. Fair use is not even a defense; hacking into a DVD to make a documentary involving fair use snippets is still 100% illegal.

In 1997, the exclusive right of publication wasn't enough for the copyright industries; they wanted to take away my freedom to tinker as well. It is now illegal to make a backup copy of my 5-year-old niece's favorite DVD. That's even though copying a software install CD for the exact same reason is 110% legal. Backup DVD? Illegal. Backup software? Legal. Making a new software key for legally purchased software? Illegal. Make sense to you? Me neither.

Bring your tale of copyright "theft" woe to Dimytry Sklyarov, who was arrested merely for developing software that could manipulate Adobe eBooks. He was arrested in the US for breaking an American law, even though he did all his programming in Russia.

Well, Ms. Cheever, now you've had a lot of your words "stolen" and put up online. But I didn't steal them at all. I quoted them, and I did it because they were wrong. Morally wrong, yes, but mostly just inaccurate. They're based on the utterly incorrect notion that copyright law has any literal relationship to property law. The relationship is metaphorical at best, like TIME IS MONEY or ARGUMENT IS WAR. Just to clarify, here are some literal claims:

The Authors Guild is using its hefty stash of copyrighted materials, a collection of legally granted monopolies not to be confused with common law property, to seek at least partial control over Google Print.

The Guild is seeking control up to and including veto power over business methods and is also probably expecting a cut of revenues.

Google Print will actually increase the propensity that any given user will buy any given book because, unlike Grokster, Google will provide just enough to spark people's interest.

Some of the finest legal minds in copyright commentary, including the initially skeptical William Patry, have weighed in on Google's side.

Making a copy of an entire book is potentially fair use; what really matters, from the standpoint of many of the above-cited legal minds, is how much of the book is accessible to the public, whether publishers can opt out, and other banal details of implementation.

Susan Cheever wrote a highly moralistic column about copyright law which contains several obvious and inescapable misunderstandings of copyright law.

These are propositional claims, which are literally true or false; "words are property" is a metaphor, a cancerous metaphor that has metastasized throughout much of the body of copyright commentary.

As for you, Ms. Cheever, I didn't steal or even borrow your words. Go to LexNex; they're still there. Just like your La-Z-Boy.

Oh, and unlike Newsday, this will be available on the public internet indefinitely. Care to retort?

TPMs and Metaphors: the DMCA debate

2005-12-12T16:25:00.000-08:00

I'm currently working on a paper for Klaus Krippendorff's class, Social Constructions of Reality. It's a discourse analysis of the debate surrounding 17 USC § 1201.

The central conclusion is that one of the most interesting and important threads of the debate is the wrangling over the metaphor of locked-down property. If I come up with anything profound or insightful and it goes anywhere, I'll be sure to post it on this, our copyright blog and source for general media policy and media criticism fun.

In the meantime, here's a link-fest for articles and other miscellany, listed in decreasing order of their relevance:

CNet coverage of a recent congressional hearing

Said hearing

LA Times opinion piece from today, arguing that the entertainment industry willingly shreds our fair use rights

Hackariffic Newsday piece today by Susan Cheever (who literally reduces your knowledge of copyright law by your reading her article) which literally claims that "words are property"

A brief description and full text of the Harper & Row v. The Nation case that Cheever certainly did not read but through fifth-hand misunderstanding apparently seems to be citing

If only there were enough discourse around to analyze...

RIAA madness

2005-12-08T09:10:00.000-08:00

Not that we need more proof that the RIAA is mad, but apparently their latest target is now suing software and websites that provide song lyrics.

DRM Links

2005-12-06T12:42:00.000-08:00

Here are a couple links from Dan, my traveling writer friend:

The lead singer of OK Go sounds off in this New York Times opinion piece about why copy-protected CDs are a bad idea.

Also, a writer for The Register suggests that the EFF shouldn't be involved in the Sony rootkit legal case because they are likely to screw it up.

EFF disses, avoids DMCA rulemaking

2005-12-01T20:57:00.000-08:00

The EFF has publicly dissed the Copyright Office's triennial DMCA rulemaking, refusing even to participate.

This is a reasonable reaction to the three-branch monte, "where's the fair use" shell game that is the triennial rulemaking.

Read the brief report (pdf). Additionally, read a more thorough critique: Catch 1201 (shameless plug).

How to Invent a Commercial Holiday

2005-11-28T15:03:00.000-08:00

Have you heard of Cyber Monday? It's like Black Friday, only for online shopping, and on Monday. Also, it was created out of thin air by some industry group with surprisingly effective PR. Slacktivist has a good writeup (and makes sure to address the insidiousness of online marketers cutting in on the time that decent, hard-working folk waste reading blogs).

P2Pnet: DoJ should take stance on Sony

2005-11-21T19:48:00.000-08:00

Good (if not great) piece arguing that the Department of Justice should prosecute--or publicly decide not to prosecute--Sony over the rootkit scandal.

Minilink: Blackboard e-surveillance by NYU

2005-11-15T15:13:00.000-08:00

In its efforts to bust the grad student employees' union strike, NYU has resorted to unannounced internet eavesdropping. Hundreds of faculty back the strike, and the same folks (not to mention the graduate teaching assistants) are hopping mad over this latest dirty trick.

Props to Siva for his signature.

Minilink: DRM horror story

2005-11-15T15:10:00.000-08:00

Click here to learn about one man's problems hacking Apple's DRM. All he wanted was a good night's sleep.

Sony, embarrassed, retreats

2005-11-11T17:49:00.000-08:00

After taking a huge beating in the public's eye for selling CDs that install spyware on users' computers, Sony has halted production of the CDs.

Of course, they still haven't released the full list of affected CDs or told the public how to uninstall the junk. At least one trojan has already been identified as taking advantage of the Sony backdoor.

Anybody else glad that they stopped supporting RIAA labels years ago? I sure am. I am not sure, however, why we're supposed to buy CDs that compromise our computers when we can download the same tracks online for free. (I don't use P2P either, by the way. I use another source of "pirated" music: the radio.)

P.S. The first link, if you didn't click, truly is a huge beating of Sony's insanity.

GOP Urges Investigation of "Secret" Prison Leak

2005-11-11T10:04:00.000-08:00

The Washington Post reports:

Congress's top Republican leaders yesterday demanded an immediate joint House and Senate investigation into the disclosure of classified information to The Washington Post that detailed a web of secret prisons being used to house and interrogate terrorism suspects.

Notice that there's no suggestion of investigation of the actual secret prisons right there. The "demand" comes in the form of a letter by Bill Frist and Dennis Hastert. (Other representatives, cited later in the article, do suggest that it would be worth investigating the prisons too. Also feel free to check out this article over at The New Yorker about the CIA's interrogation methods.)

As this Washington Post article points out, such bicameral investigations are very rare in the history of this nation, and the people demanding this are being pretty selective about which leaks they seem to think are worth investigating. (Why not the leak of false WMD intelligence or the Plame leak?) Whatever the case, the article also notes that "Republicans suggested it is unwise to pick a fight with the media over an issue that exposes so many political vulnerabilities for their party."

Lessig on UN Internet Control

2005-11-10T09:20:00.000-08:00

Lawrence Lessig on a recent debate: should the UN control the Internet?

DMCA article accepted

2005-11-08T18:46:00.000-08:00

The Cardozo Arts and Entertainment Law Journal has agreed to publish a paper I wrote with Oscar Gandy.

The paper, Catch 1201: A Legislative History and Content Analysis of the DMCA Exemption Proceedings, argues that the triennial rulemaking to determine exemptions to the ban against hacking technological protection measures is an ineffectual excuse for a "failsafe".

The media industry wanted stricter copyright law, and they got it in the form of 17 USC § 1201. As one of three bans the law enacts, it is now illegal to circumvent technological protection measures (TPMs) that protect access to copyrighted works. This basic ban is subject to triennial review by the Register of Copyrights, Marybeth Peters. If Peters finds that noninfringing users are unfairly denied access by the TPMs protecting a given class of media works, she can grant them the right to circumvent those TPMs for a 3-year period.

After an extensive legislative history, we conclude that the rulemaking was not constructed to preserve the public's ability to access works in otherwise noninfringing ways. Rather, it provided a mechanism for Congress to take power away from the courts (which would have been somewhat likely to apply traditional copyright defenses such as fair use) and give it to an historically copyright-friendly body with no chance of appeal. This delegation also allows Congress to refer those who are adversely effected to the exemption rulemaking, but the poorly written law allows Peters to refer them back to Congress. It's a real catch-22.

In considering the input of the first two rulemakings, we conclude that, while the Register is somewhat constrained by the law, she takes an unnecessarily narrow view of her powers to exempt classes of works. Further, we note that those who oppose exemptions readily leap onto any jurisdictional bandwagon they can find in an effort to oppose any and all exemptions. Peters buys into this time and again, rejecting nearly 6 times as many proposals as she accepts.

Perhaps most disappointing among Peters' rejected classes is Ernest Miller's proposal for exempting ancillary materials on DVDs--e.g., trailers, outtakes, etc. Peters acknowledges that people are actually prohibited from engaging in noninfringing uses (e.g., criticism), but she insists that the threat of widespread piracy outweighs.

The only way this denial makes sense is if there are a substantial number of people who are willing to disobey copyright law generally but not Section 1201 specifically, and that only by denying the exemption to noninfringing users of DVDs can we prevent this substantial mass of would-be infringers from posting all their movies online. It's a pretty silly claim, and she doesn't make it explicitly, but the legal maneuvers she does make to get around this preposterousness are pretty nimble. (She also just ignores some arguments, including powerful First Amendment claims.)

This is just one example, but I could go on and on. It's time to get behind Rick Boucher's amendment, H.R. 1201.

There's more to it, of course--88 pages in all! Once again, download the paper, Catch 1201, if you're interested.

Unexpected Effects of Copy Protection

2005-11-07T21:58:00.000-08:00

Some players of the multiplayer online game World of Warcraft have figured out how to use Sony's CD copy protection software to elude cheater-detection software (which is another controversy altogether, as the game publisher's efforts to keep the game cheater-free involve some invasion of privacy).

I figured this was worth posting, but don't let it distract you from Bill's previous post, which begs for immediate attention and action.

Endangered species: Your right to record

2005-11-06T19:29:00.000-08:00

Check out this EFF Action Alert. NOW. The RIAA and MPAA are trying to radically cripple your right to record anything without their permission.

Read more about it here. Then, contact your congresspersons.

CNet: Alito friendly to tech biz

2005-11-03T10:57:00.000-08:00

Based on past rulings, CNet gives Supreme Court nominee Samuel Alito a cautious stamp of fairly friendly to the interests of the tech sector. He failed to grant copyright to an industrial manufacturer for their parts numbering system (not creative enough). But some of his dissents offer an awfully watered-down view of privacy and right against unwarranted search and seizure.

iMesh's P2P filters showing gaps

2005-11-03T10:16:00.000-08:00

In their effort to keep unauthorized music off its first-ever authorized P2P networks, iMesh developed an intricate system for prohibiting unauthorized transmissions. Charge for songs that are under contract, permit the free exchange of songs that are under no copyright or a Creative Commons license, and forbid the sale of other songs (e.g., those by Led Zeppelin). At least, that's what they imply.

Unfortunately, their filters could be renamed "Houses of the Holey," because they're still not 100% perfect.

I suspect they'll patch around it, and everyone will continue to feel the same about iMesh. Labels will continue to thank them for helping them seem less virulently anti-tech (until the next new disruptive tech comes along), and the Downhill Battle crowd will continue to think of them as sell-outs.

I wish them luck fixing their problems, but I'd rather see people support their local indy music store.

Smaller firms in Singapore disobey copyright

2005-11-03T10:01:00.000-08:00

In a recent survey of 100 small and midsize businesses, Intercedent Asia found that nearly a third do not comply with copyright laws. Among the most-cited reason is the high cost of software licenses.

Full story at CNet News.

Still Safe to Smell of Strawberry

2005-10-28T09:45:00.000-07:00

I think it's good that a French company failed to trademark the smell of fresh strawberries. I found the argument surrounding this decision a little odd, though:

The company argued that while strawberries may look and taste different, they all smell the same, and as a result could be trademarked.

The [European Union] court took a different view, and smell experts found that instead of just one aroma, strawberries can in fact have up to five different, distinct scents.

Oh, well, that's a relief. Also, I am glad that there are "smell experts" out there somewhere who are being utilized. I get enough flak as it is for aiming to be a "comics and video games expert," but some day we'll come in useful too.

Copyright office restarts DMCA rulemaking

2005-10-26T18:00:00.000-07:00

Every 3 years, the Copyright Office, headed by Marybeth Peters, conducts a rulemaking to determine exemptions to 17 U.S.C Sec 1201(a)(1), which prohibits the circumvention of access-controlling technological protection measures (TPMs).

Most commentators believe that TPMs, aka Digital Rights Management (DRM), reduce the general public's ability to make otherwise noninfringing uses (e.g., fair use, as encoded at 17 U.S.C. Sec. 107) by leaving it up to content creators to set the terms of access and use.

Despite this widespread criticism, Peters has constructed the Office's powers in this matter so narrowly as to be utterly ineffectual.

For instance, she ruled in 2003 that, to make fair use of a DVD, instead of using your computer alone (which would still be quite difficult), you also have to buy a standalone DVD player and an analog-to-digital converter that does not recognize Macrovision.

Which converters allow you to import video despite the Macrovision flag? It's hard to say, since Section 1201 makes it illegal to manufacture devices exclusively for that purpose or to advertise any otherwise legitimate device's capability to do so.

Why do you have to pay hundreds extra to exercise your free speech rights? Because Jack Valenti's pals want to make more money.

If you think this blog post is long, wait til you see the forthcoming law review article documenting the stomach-churning policy developments that got us here.

In any case, feel free to submit your horror stories about how TPMs keep you from engaging in otherwise lawful uses. Please do; it makes the push for reform so much more powerful! But expect to be disappointed by Peters' ruling in the end.

Now open for biz: Legal P2P

2005-10-25T14:25:00.000-07:00

ZDNet has a story declaring that iMesh is open for business. Here's the part where it becomes patently obvious that it's not exactly a red-carpet, world-premiere-sized start to the legal P2P biz. Go to the site; I think they do too little to convince people that there's some there there. Also, even their forums express some disbelief that this is the solution to the ongoing copyright war.

I'd love to install the software and play, but the last thing I need is another way to waste time online (he types on his blog).

Global satellite broadband? Not holding my breath

2005-10-24T17:45:00.000-07:00

Now this is a high-tech way around your local cable/DSL broadband monopoly. Alas, the best they can do is 512 Kbps. Scheduled to roll out next year; I wish them well but suspect it will be another solution that is out of most budgets.

Props to Media Tank for the link; their news list rocks.

Telecom giants seeking to redline the poor

2005-10-24T17:28:00.000-07:00

Few companies are better at making me violently angry than Verizon; little wonder, then, that they're joining SBC in lobbying for the right to exclude poor, largely minority communities from the digital millennium.

The telecom giants are lobbying for the right to roll out advanced digital TV and broadband services only in the most upscale of zip codes. This is in stark contrast to the decades-long policy tradition of universal telecommunications services.

Shame on both companies, and props to the late Delores Tucker for a thought-provoking article.

"Format Wars" a Losing Battle

2005-10-20T06:22:00.000-07:00

There's been a lot of hubbub in the video game industry regarding what DVD format the next-generation systems will be using—HD DVD or Blu-Ray, either of which should have significantly increased capacity over the current DVD format. This doesn't just affect home gaming consoles, of course, as the success of one format over another could determine what next year's DVD players can run. (Think VHS vs. Beta, and feel free to check out this PC World article for a basic rundown of the issues here.) I'm getting the impression that copy protection capabilities is one of the major concerns being batted around by game industry execs in settling on a format.

Imagine my surprise, then, when Bill Gates announces that this particular format war is yesterday's news; the future is in digital distribution. Ah, that's right—I had forgotten all the talk of Microsoft's sneaky plans to distribute games directly into Xbox consoles connected to the internet, bypassing retailers completely. Perhaps the hope is that this will discourage piracy, as many Xbox users probably aren't aware of how easy it is to "soft mod" their consoles so that games downloaded onto PCs can be stored on the Xbox hard drive.

a reminder why we do this

2005-10-17T19:27:00.000-07:00

It is always good to remind ourselves from time to time why we do the things we do. Why we get angry about issues of copyright, why censorship is problematic, etc. Why we care about, what this website calls 'a healthy information ecosystem."

As a response to Jimbo Wales' (founder of Wikipedia) ten things that will be free, Charles Nesson (founder of the Berkman Center) writes - and, pardon me but, could language be more beautiful?

"More people come to see that yes, we are in new reality. Core insight about the structure of the net come clear. We can connect with whom we want, if only they want to connect with us. We can build structures in the net out of software that make connection productive and fun. People who like to connect like to share. People who like to share like to trust. The net provides us ways of doing this, ways that are interesting and powerful. In the battle of good and evil rhetoric strucures the game. It plays like poker, with rhetorical chips, stacked in story strength.

The force is that will draw us forward toward the expressions of free culture Jimbo describes is evolution determined by the architecture of cyberspace. In an environment that facilitates sharing, those who learn to do it well will have competitive advantage. We are building self-sustaining software structures that facilitate aggregation of shared value. We can build more, with near boundless aspiration."

Those who like to connect like to share. Those who like to share like to trust. Principal foundations of a healthy information ecosystem.

The hidden cost of documentaries: copyright clearances

2005-10-15T20:38:00.000-07:00

They're hardly the first folks to cover it, but the Times explains that the cost of clearing copyright fees is a huge drag on documentary production. Considering the constitutional mandate to promote the progress of the useful arts and sciences, it is tragically ironic that copyright law keeps many doc's from getting produced and drains the life out of others.

For more on this, see the Untold Stories website, featuring a very thoughtful analysis (and, yes, a documentary) by Pat Aufderheide and Peter Jaszi.

Disaster Relief and the Media

2005-10-12T00:52:00.000-07:00

The Washington Post reports that donations for relief have come in slowly in the wake of a devastating earthquake in Pakistan. According to this article, the death toll in Pakistan is currently at 30,000; according to an article in the Philadelphia Inquirer, millions are left homeless. Pakistan's government simply isn't equipped to handle this alone. According to the Washington Post, donations may be coming in so much slower simply because people are feeling overwhelmed by disasters:

After donating about $1.3 billion to help the victims of the devastating Southeast Asia tsunami and then contributing $1.7 billion to support relief efforts after Hurricane Katrina, many donors appear to be running out of steam....

For example, online donations to the international relief group CARE's South Asia earthquake fund are 10 percent of what they were at the same point after the tsunami, a spokesman said.

The American Red Cross also said the pace of giving for earthquake relief is far slower then it was after Katrina or the tsunami. Tens of millions of dollars poured in within a week of the earlier disasters, said spokeswoman Carrie Martin. But so far, the Red Cross has collected only $45,000 for South Asia quake victims.

Agencies and charity researchers say "donor fatigue" might be part of the problem. The third major disaster within a year simply is not registering with Americans as strongly as did the previous two.

Aid groups say they believe Americans have not lost empathy for the victims of new natural misfortunes.

I'd like to propose another theory: a drop in disaster coverage and attention.

The story of the tsunami was in the news for days, a virtually unprecedented disaster that demanded attention. Katrina is still in the news, as people try to figure out just what went wrong and what needs to change. The earthquake made it to the front page of Monday's Philadelphia Inquirer; today, I had to hunt around on their site to find an update. Are natural disasters now old news?

Moreover, attention to Katrina expanded well beyond the regular news media. I had planned to donate from the beginning, but I didn't actually do it until it was so easy that I couldn't help but notice—the front page of Amazon.com had replaced my normal recommendations and ads with a link to donate to the Red Cross online. I had just gone in to buy an electric shaver, and suddenly I was reminded to donate and help people. Not that Amazon doesn't have a right to protect its own business interests, but it kind of disappointed me when I logged in today and all I found was a recommendation to pick up replacement foils for the shaver.

I'm sure there must be a variety of reasons why aid is coming in more slowly now, but if a lack of public reminders is one of them, please let this count as a reminder for you.

RealNetworks collaborates with Microsoft

2005-10-11T11:44:00.000-07:00

This just in from the New York Times.

And the power of the oligopoly further frustrates anti-trust efforts.

Google Hires Lobbyist

2005-10-08T13:40:00.000-07:00

Google reports via its official blog that it's hiring a lobbyist to help influence policy in such areas as "net neutrality," "copyrights and fair use," and "intermediary liability."

I have to hope this will be a good thing for most internet users, and people working with digital media in general. While I realize that Google has to pick its battles carefully, however, I have to admit that I'm a bit dubious about their proposed support for the Grokster decision (click here for commentary by Bill and relevant links), which they contrast from legal questions applied to their own products.

Game Console Modding Now Legal in Australia

2005-10-07T22:48:00.000-07:00

BBC reports that Sony has just lost a four-year legal battle with a mod chip supplier, meaning that it's legal for Australians to install such chips in the Sony PlayStation 2—and, presumably, this could set a precedent for modding other consoles, such as the Xbox.

Game consoles like the PS2 can be "modded" by installing a chip that enables users to bypass such "features" as copy protection and regional controls. This means that Australians can now legally modify their systems to play much cheaper games sold in other countries—which is great, really, seeing as how games in Australia seem to be ludicrously overpriced.This doesn't make it legal to play pirated games, of course, but it certainly makes it easier.

The U.S. is not yet similarly enlightened.

Disappointingly hackneyed article on CNet

2005-10-06T08:35:00.000-07:00

Normally, CNet's News.com.com is the source for wonderful tech and tech law news. I link to them all the time. This time, however, I'm publicly dissing them, there and here.

Read this article by Progress and Freedom Foundation VP Patrick Ross. His journalistic credentials are actually quite sound, but his reasoning is not.

Next, flip to Comment #4. I wrote a rather lengthy rebuke, and that's the tip of the iceberg of very strong opinions I hold on this issue. I also challenged Ross to a debate. Are you reading this, Patrick? Because I'm serious. Let's go. I'll arrange everything; you just show up.

Audio format wars harm consumers

2005-10-06T07:35:00.000-07:00

Here's yet another reason to support blanket licensing: format wars. Apple uses AAC at the iTunes store; most others use Secure WMA. Neither is playable on music players (ahem--MP3 players) designed to play the other.

The Times actually a) covers this issue, and b) offers some useful tips to the uninitiated.

Support blanket licensing. Apple's unique power is that it was the first company to get all the big labels to sign on the dotted line. If they can't withold that right, consumers will be downloading in MP3--or even some lossless compression format, e.g. FLAC--before long.

Indy video producers eye online distribution

2005-10-06T07:25:00.000-07:00

Quick link to a Times story about how independent video producers are already starting to use the internet to escape the need to work with major distributors. Early adopters include Blair Witch co-director Dan Myrick with his serial, "The Strand of Venice".

More musicians: How to hack our CDs

2005-10-04T22:35:00.000-07:00

In what I believe is a first, I have scooped CNN on a story. ("You hear about this kind of thing all the time, but you never think it will happen to you...")

Two weeks ago, I posted a story about how the Christian band Switchfoot was teaching people how to hack their CDs. Tonight, a colleague emailed me a story from CNN (via Billboard), pointing out that Switchfoot is among several bands teaching people how to hack their CDs. Others include the Dave Matthews Band and Foo Fighters. How many more musicians are concerned that the labels are keeping paying customers from enjoying their music?

As if that weren't rich enough, Sony BMG will also email the directions to you. Just fill out this form, and in less than 30 minutes, you can have your CD on your iPod. The short version is:

Import the tracks as "secure" WMA files
Burn to a standard audio CD using Window Media PLayer 9 or 10
Reimport the songs using iTunes

The fun part, though, is when the label tries to convince me that posting this on my blog is illegal:

This message and any attachments are solely for the use of intended recipients. They may contain privileged and/or confidential information. If you are not the intended recipient, you are hereby notified that you received this email in error, and that any review, dissemination, distribution or copying of this email and any attachment is strictly prohibited. If you receive this email in error please contact the sender and delete the message and any attachments associated therewith from your computer. Your cooperation in this matter is appreciated.

But they're not fooling me. I may be one of a handful of non-lawyers who almost understands 17 USC 1201. I'm offering no "technology, product, service, device, component, or part thereof." It's just unpaid commentary. In perhaps an even more ironic twist, Sony BMG is perhaps more liable than I would be under this law. At the media industry's behest, there is no fair use defense to Section 1201. By my reading, Sony BMG would, by the letter of the law, be as guilty as you or I if they started shipping BeatOurLameTech.exe files designed to undo their copy control technologies.

In the matter at hand, I think that neither Sony nor I is liable for giving such simple instructions for using tech you already have. But if I'm liable, they're more so; I'm exercising my "rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products," whereas their email form is used primarily for the purpose of helping you to defeat their wack copy controls.

RIAA Pushes, Defendant Pushes Back

2005-10-04T16:59:00.000-07:00

The Video Game Law Blog links to a P2Pnet story about a single mother sued by the RIAA who decided to sue right back. Check out the P2Pnet article for the full story, which is summarized neatly by the Video Game Law Blog:

The interesting part of this story is that the mother filed a lawsuit in response. And she’s not shy: she’s suing for RICO [Racketeering Influenced and Corrupt Organization] violations, fraud, invasion of privacy, abuse of process, electronic trespass, violation of the Computer Fraud and Abuse Act, negligent misrepresentation, deceptive business practices and—we like this one—the tort of “outrage”. We’d never heard of that one before.

Looking forward to seeing how this pans out.

The Future of New Orleans

2005-10-04T07:21:00.000-07:00

I'm not much of a conspiracy theorist, but this piece from The Nation does raise some pretty interesting questions about New Orleans. (Link via Slacktivist.)

The Nation piece is primarily concerned with the creeping suspicion that some people might have had quite a lot to gain from flooding poor people out of the city—but it's early yet this morning, and my cynicism takes a few more hours to kick in. Even if you disregard the question of deliberate, evil intent, however, the list provided in that piece does note several questions that would be relevant to (but have been ignored by) mainstream news media. Two questions particularly stood out to me:

23. Why isn't FEMA scrambling to create a central registry of everyone evacuated from the greater New Orleans region? Will evacuees receive absentee ballots and be allowed to vote in the crucial February municipal elections that will partly decide the fate of the city?

24. As politicians talk about "disaster czars" and elite-appointed reconstruction commissions, and as architects and developers advance utopian designs for an ethnically cleansed "new urbanism" in New Orleans, where is any plan for the substantive participation of the city's ordinary citizens in their own future?

Please feel free to post a comment if you've seen media coverage that addresses these issues. So far I haven't caught anything about them on HappyNews.com.

Google sued

2005-10-03T17:27:00.000-07:00

The Authors' Guild has sued Google over its massive book-scan, part of the larger project known as Google Print.

I don't have the time to write my own analysis on this issue, but let me revoke my previous non-vote and say that Google is engaged in fair use. Among others, Peter Suber and William Patry have provided very persuasive arguments to this effect. Suber rightly suggests that the AG may merely be engaged in a shakedown for a share of the profits. (Hey, it's worked for those whose songs have been sampled by hip hop and electronica artists.) Even though the copyright holders will clearly benefit from Google's clearly fair use (just like hip hop sampling revived the sales of countless old songs), they want their cut, and they have lawyers.

Check the links, esp. AG (which is like the Google Suit news channel) and Patry (who disses the four-factor fair use test in style).

More on WSIS

2005-09-30T07:48:00.000-07:00

The International Herald Tribune did a decent piece on WSIS negotiations. As Lokman noted, the US negotiators arent' making any new friends. I'm glad to see that the NY Times carried this piece this morning.

This has all been predicted by an Annenberg-UPenn alum: Milton Mueller. His book Ruling the Root discusses the very political problem of the US uniquely controlling the root server, which is the gateway to establishing a new internet address. (Yes, this includes shoutingloudly.com.)

AP misreports on Senate copyright hearing

2005-09-28T19:03:00.000-07:00

I know this is a big shock, but the AP published a misleading story. Sadly, it's been printed by (among others) the Washington Post, Seattle Post Intelligencer, and SF Chronicle. In it, Jennifer Kerr blares:

The overriding answer from the two panels representing the recording industry, copyright experts and entrepreneurs was "no [new legislation needed]"--at least in the short term.

This is just not true. At least one witness--the Register of Copyrights, Marybeth Peters--believes that Grokster reveals a huge need for new legislation. Due to the arcane nature of statutory licensing, digital and terrestrial radio stations alike can play whatever they want and pay a legally defined royalty to central rights clearinghouses, but online music vendors have to negotiate for the rights to each and every track.

This creates holes big enough to drive a truck through. See my last post on this.

Here, in detail, is Peters' reasoning:

Although the Grokster decision contributed immensely to the world of legitimate online music distribution, it did not, and could not, resolve all of the difficulties facing this industry. One area which poses the most hurdles to efficient and affordable distribution is the process of licensing the underlying musical works. Because this process is constrained by practical and statutory antiquities, it creates an incentive and opportunity for piracy to flourish. I commend you for considering the necessity of legislation in the wake of Grokster, and I would suggest that the one topic on which legislation should be presently considered is the reform of the process for licensing online distribution of musical works.

Of course, Kerr misses this subtle detail. Wholly out of context, she quotes Peters' recommendation to let stand the specific question of the Grokster decision itself. Grokster only settled the applicability of the standard for contributory and vicarious infringement to P2P services, and Kerr leaves readers with the impression that Peters is a-OK with the entire copyright status quo.

Bunk reporting by a bunk news service, I say. My letter to the editor, however, leaves that allegation between the lines. I hope the Post decides to publish it.

When Peters--who is very regularly on the side of copyright holders--insists that we need reform, Congress and the public should listen.

reporting the WSIS

2005-09-28T12:27:00.000-07:00

Kieran McCarthy reports about the World Summit on the Information Society (WSIS) held in Geneva. This is the third meeting; the first meeting was in Geneva, the second in Tunis.

The main argument, McCarthy reports, right now is about who will "rule" the internet. According to the report, the US currently controls the internet, by which is meant control and governance of the DNS root servers and ICANN. Brazil and Iran would like that to change and have the ICANN as part of the United Nations; the US barks at the idea, as US ambassador David Gross himself said: "The United Nations will not be in charge of the internet. Period." That quote, a bit premature, did not go to well with everybody else, considering the meeting is convened at the UN, in order to discuss this very issue.

introduction

2005-09-24T11:27:00.000-07:00

Hi: long awaited introduction. My name is Lokman, colleague of both Jason and Bill. My interests mainly concern issues of censorship, flow of information, technology, globalization, transnationalism, and comparative studies. My personal blog is called silent dreams; I also have a more professional website, with links to my papers and publications.

Look forward to contributing to this blog. Shout outs to Bill for organizing this, and to Jason for being in this group blog together.

Fight WIPO's broadcasting treaty

2005-09-24T08:59:00.000-07:00

Go here RIGHT NOW and learn about the eeeeevil broadcasting treaty that's in work at the World Intellectual Property Organization. By my (non-lawyer) reading, it would give broadcasters copyright-like control over what they broadcast, whether it's public domain, creative commons, or uncopyrightable material when it hits the air.

Follow the links for more detail. The treaty itself is here.

Poaching From CNN: TiVo, Bloggers, the Bible, and Pajamas

2005-09-22T21:23:00.000-07:00

What was meant to be a quick glance at a few news sites has turned into a CNN-enabled blogging spree:

An apparent "glitch" reveals that TiVo apparently offers broadcasters the ability to delete content that users have saved. This is on top of the the copyright protection announced last year for pay-per-view content. I can respect that broadcasters might want to somehow copy-protect their material from being saved indefinitely, but I'm a little unclear as to why TiVo feels the need to help out. It's a good thing TiVo has been so aggressive about protecting its trademark, too, or else people might not realize that there are other PVR systems available...

A Paris watchdog group has created an 87-page guide to avoiding censorship while blogging. The freely-available guide, launched at the Apple Expo, was partially funded by the French government. It's times like these that I remember "freedom fries" and cringe.

High school Bible classes now have a textbook. I have been thinking a lot lately about how the Bible is arguably the most important book in the country. This article mentions how knowledge of the Bible is useful for understanding literature and history, which is undoubtedly true, but it's also pretty relevant in understanding activism and political communication. I have often naively wondered why more high schools don't teach the Bible from a secular standpoint, as mine did. While reading this article, the words "tiptoe" and "legal nightmare" certainly come to mind.

And what follows the Bible better than footed pajamas? I include this because, though the clothing mentioned here seems mainly worn for the sake of comfort, concern about it seems an issue of the message it sends to allow kids to wear pajamas in public (or the message sent by the actual wearing of the pajamas, presumably, "I can't be bothered with getting properly dressed"). In other words, clothing is a form of visual communication, but I wonder if it always gets recognized as such. Garrison Keiller doesn't seem to appreciate verbal appropriation on a t-shirt, but would he let it slide if it were the title of a book? Consider also a certain law suit involving a parody of the Starbucks logo, in which the court ruled that the parody was "confusingly similar" to the trademark, and thus merchandise (such as t-shirts) featuring the logo could not be sold. (Even the article I just linked seems to forget that clothing is visual communication, stating that the parodist's comic book featuring the logo was "reduced" to the status of a commodity. Is there any such legal differentiation?) I guess footed pajamas may not be communicating a message as directly as politically satirical t-shirts, but come on, everybody loves pajamas with feet.

WinMX & eDonkey go dark

2005-09-22T19:18:00.000-07:00

According to The Register (UK), WinMX and eDonkey are both offline... for now. I suspect this is largely the result of recent RIAA sabre-rattling.

Why do I have a feeling this is going to push P2P users in the direction of open-source programs?

NSA patents net location-tracking method

2005-09-22T06:44:00.000-07:00

On Tuesday, the National Security Agency secured patent #6,947,978 for a method of identifying an internet user's physical location based on IP address. It works by triangulating the target in relation to known IP addresses--comparing the delay between the target's transmission and its passage through known geographic anchors. Sounds simple, huh?

Geo-location is not news, of course. Ever been custom-marketed to by websites? ("Find other singles in Philadelphia!" is one common experience.) Gary Jackson, VP of a firm (Quova) that holds 3 geolocation patents, says "It's honestly not clear that there's anything special or technically advanced about what they're describing.

In this article on CNet News, Declan McCullagh suspects that NSA patent could be part of their signals intelligence mission--devoted to spying on non-citizens.

Data mining to prevent terrorism?

2005-09-21T17:04:00.000-07:00

Today, Arlen Specter has accused the Pentagon of stonewalling the inquiry to determine what military intel knew about four of the accused 9/11 hijackers.

The method for having acquired this knowledge? Data mining. It was part of a now-defunct program known as "Able Danger."

The data is out there. Noodling around in it is, by some accounts (e.g., Prof. Turow's), the wave of the niche-driven, direct marketing future.

Of course, police and/or intel agents can use data mining to flag citizens and hound them as dangerously deviant--whatever that means. In some cases (e.g., this one), it may be the case that data mining worked out. In total, though (e.g., if used to lengthen the "no fly list"), it is quite a threat to civil liberties. Is this what we pay our government for--to sort through our digital trash in a national effort of cyber-surveillance?

Thanks (again) to Rummy, we ordinary citizens will never know just how much this method has been utilized by our government in an effort to keep us all--uh, I mean, terrorists--in check.

Music labels: Encouraging piracy

2005-09-21T11:36:00.000-07:00

This week, Steve Jobs has repeated his public warning to the major music labels: don't raise the price of downloads. He says they're "getting greedy" and behaving irrationally if they think that higher prices will seem reasonable when free music is still just a click away.

The RIAA has convinced itself (and a good portion of the voting population) that with enough industry-friendly legislation, intimidating lawsuits, and public relations spending, they can return to the good old days of oligopoly profits. But they're wrong.

P2P traffic has continued to rise, and the lawsuits increase P2P traffic by serving as free advertising for the freeloading services.

To be fair to the labels, there is money to be made in online music distribution; Apple shareholders just happen to get more than their share. Jobs has a vested interest in keeping iTunes wicked cheap; locked-down iTunes downloads are difficult to play on most MP3 players, cementing the iPod's dominance. Apple makes a slim minority of the money per download at the store; it's all a big iPod sales driver.

If I get my tunes from LimeWire, however, the unencrypted MP3's will play on any portable device. And we can't have that.

A Brief Introduction

2005-09-20T21:31:00.001-07:00

My name is Jason, and I occupy the chair next to Bill's in our lovely office (with a couch). I kept sending Bill links I thought he would find interesting, so he invited me to post on his blog. I said no because I am busy and wary about taking on more responsibility. Then I changed my mind because it seemed kind of dumb to basically be blogging by proxy, considering how many links I was sending him. It's still Bill's world, though—I just get to post in it.

I'm not sure yet what I will be able to bring to this blog, but I do aim to please the crowd, so let's start with links about swearing and porn. Enjoy.

Christian band: Here's how to hack our CD

2005-09-20T14:39:00.000-07:00

So the bassist from the Christian band Switchfoot is apparently giving instructions on how to disable the technological protection measures (TPM), aka digital "rights" management (DRM), on the band's new CD. It's not the band that decided to lock down their art in a way that keeps many people from using the lawfully-acquired CDs they buy.

This isn't the first time an artist has been this irked about a label deciding to lock down a CD without said artist's permission. Ben Harper was also really pissed when Virgin did the same thing to him. He doesn't want to work with them any longer because of it.

This is, however, the first time I've heard of a band that's willing to break a major federal law (17 USC Sec. 1201(b)) in order to rebel against its own techno-lockdown. Depending on whether prosecuted under section 1203 or 1204, this is either a potential statutory damage award of $2500 (more likely trumped-up "actual" damage charges) or a felony conviction with a max fine of $500,000 and a term of up to 5 years.

That is one brave bassist. Notice how I do not include the link. I like my money and my freedom, so I haven't even bothered to track it down.

So much for the rhetoric of protecting artists.

Crave privacy? Zap that paparazzi's digicam

2005-09-19T06:45:00.000-07:00

Another interesting art on CNet News.

China still = piracy

2005-09-19T06:39:00.000-07:00

As explained here on CNet News, China is still awash in pirated movies despite WIPO and promises from high-level politicos.

This is an example of trying to export our own cultural expectations onto the Chinese:

There are cultural issues as well. Many Chinese see strict intellectual property-rights enforcement as a zero-sum game in which foreigners benefit and Chinese lose. Historically, the act of copying hasn't necessarily had negative connotations: In painting and calligraphy, Chinese artists sought to mimic acknowledged masters. Too, under Communism people grew up believing assets should be shared resources. "The arguments we hear from the Chinese side are, 'Please lower the prices and then we won't pirate,'" says Thomas Pattloch, chairman of the European Union Chamber of Commerce Intellectual Property Rights working group and an attorney in the Shanghai office of Schulz, Noack and Barwinkel.

Some things never change.

The end of the wired internet?

2005-09-19T06:31:00.000-07:00

Could this be the beginning of the end (or at least the end of the beginning) for wire-dependent internet communication?

If the lobbying efforts by Comcast and Verizon in Pennsylvania are any indicator, I somehow doubt that the incumbents will let their position go so easily.

RIAA pushes to strip you of recording rights

2005-09-15T17:28:00.000-07:00

The RIAA is pushing to roll back your right to record music at home. As part of the switch to digital radio broadcasting, they're pushing to mandate that devices capable of recording digital radio feature a host of crippling features.

As reported here by the EFF, the RIAA is hoping to mandate the following:

recordings must be for no less than 30 minutes;

recordings cannot be divided into individual songs, nor will you be allowed to jump between songs;

recordings must be encrypted and locked to the individual recording device (no transfers to your iPod!);

recordings can only be triggered by a human pressing a "record" button or by pre-programmed date-and-time (like your old VCR!), which means no smart metadata driven features like TiVo's "Wishlist."

This is even though the 1992 Audio Home Recording Act specifically gives people the full right to record--even from the radio--in the privacy of their homes.

Write, call, or fax your Representative and Senators today; the EFF page lets you submit your comments electronically.

Boucher calls for mandatory music licensing

2005-09-14T08:36:00.000-07:00

In light of the continued success of illegal P2P networks, Rep. Rick Boucher has called for technology-neutral licensing. This would will allow legal downloading services to offer all recorded music and pay legally-defined royalties rather than haggling with record companies and therefore missing out on lots of songs.

It's hard enough to compete with "free"; offering a glaringly incomplete catalogue makes the pitch even harder. For instance, iTunes still cannot carry music by The Beatles.

Boucher was also joined by Sen. Maria Cantwell in calling for a streamlined royalties sytem. They both expressed the obvious and longstanding objection that terrestrial broadcasters pay songwriter's royalties but no royalties for mechanical licenses, while satellite and web broadcasters pay for both. The part they probably elided is that this is just another sign of the preposterous political clout of the National Association of Broadcasters.

They were just two of countless high-powered speakers at this week's Future of Media Policy Summit.

Garrison Keillor: IP Bully?

2005-09-13T14:14:00.000-07:00

As explained here on P2P.net, Garrison Keillor, the comedian host of the NPR variety show "A Prarie Home Companion," has issued a cease-and-decist letter demanding the end to a parody of the phrase. A t-shirt vendor, selling shirts that say "A Prarie Ho Companion," has publicized the letter in its entirety.

Garrison: I'm a fan of yours. "Prarie Home" is one of my favorite shows in any medium, and I think you're a great entertainer. I also suspect that your political views are generally well-informed and spot-on.

But let's be honest about the irony of this situation. You're a %&*in' COMEDIAN! Can't you take a joke? Seriously. Back off. Let people heckle you. There is NO CHANCE IN HECK that a reasonable person would think you're hawking these shirts. Further, as a good liberal, you certainly care very deeply about free speech, but you're squelching it right now.

So back off. Please.

P.S. Why aren't you going after this site, which is very clearly a trademark violation that seeks only to cash in on your good name?

Profoundly dumb, insensitive Katrina quotes

2005-09-12T10:52:00.000-07:00

About.com has compiled a list of the top 25 dumbest Katrina quotes. Most are from politicians, but a few are from the press. See, e.g., # 10, by the normally top-notch Wolf Blitzer.

Props again to J Tocci for the link. (Notice the pattern here?)

This is what happens when something tears the shellack of multiculturalism off this racially and economically segregated society: politicians and reporters don't know what to say. Sometimes, they're faking a genuine outrage. Sometimes, they're accidentally being racist on the air. Sometimes, they're blaming victims because the oppressed other didn't (couldn't) respond as the priveleged could and therefore did. Still other times, they're accidentally gloating that they'll never have to face that station in life.