Susan Crawford offers an interesting take on her blog regarding the FCC's lack of authority to mandate the broadcast flag (New tack on the broadcast flag). Her take is certain to be popular in Hollywood as it analogizes the copyright industries to the tobacco industry:
[I]f FDA cannot regulate cigarettes, FCC cannot regulate consumer electronics devices.
The case Crawford is referring to is FDA v. Brown & Williamson Tobacco Corp., in which the FDA claimed the ability to regulate cigarettes, but was shut down because, among other reasons, "It is highly unlikely that Congress would leave the determination as to whether the sale of tobacco products would be regulated, or even banned, to the FDA’s discretion in so cryptic a fashion." Similarly, it seems rather odd that Congress intended the FCC to regulate the consumer electronic and computer industries without a clear mandate.
Indeed, for the first time, I must praise the anti-circumvention aspects of the DMCA. Section 1201(c)(3) of the DMCA states that:
[n]othing in this section shall require that the design of, or the design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological measure, so long as such part of component, or the product in which such part or component is integrated, does not otherwise fall within the prohibitions of subsection (a)(2) or (b)(1).
This is the anti-mandate provision of the DMCA, which was part of the compromise that resulted in the passage of the bill. How odd that the consumer electronics industries would have signed on to this compromise if what it really meant was that the FCC could mandate anyway. In addition, section 1201(k) explicitly regulates certain copy protection measures for analog broadcasts. Had Congress intended for the FCC to mandate digital copy protection for broadcast, you think the DMCA might have mentioned it.
This is just a brief analysis. Hopefully, the consumer electronics and computer industry lawyers are putting together something much more devastating to the FCC's case.
Derek Slater fights the good fight and wins a round (Update: Diebold, Harvard, and Me). Slater was one of the citizens engaged in e-civil disobedience against e-voting machine manufacturer Diebold's mendacity. He posted a mirror of the infamous Diebold memos, excerpts of which can be found on Rep. Kucinich's website here: Voting Rights. For his trouble, Slater received a notice-and-takedown letter from Diebold, via Harvard. Consequently, Harvard (following their own policy) entered a black mark in Slater's record for being a copyright infringer. One more notice-and-takedown letter addressed to him and Slater would lose access to Harvard's network for a year. Slater protested this policy, arguing that he shouldn't get a black mark due to civil disobedience (and the fact that his posting of the memos had a strong, although not invulnerable, fair use defense). Harvard has, in Slater's case, agreed. However, this was an ad hoc decision. Now, Harvard should revise its policy so that there is a procedure for challenging the black mark, in addition to the statutory procedure for challenging the notice-and-takedown letters themselves.
WIRED reports that "contextual marketing" firm WhenU.com (a purveyor of pop-up and pop-under ads keyed to URLs and keywords) has won a decision against Wells Fargo, which was seeking a preliminary injunction against WhenU.com (Pop-Up Firm Wins Again in Court). Read the 66-page decision: Wells Fargo v. WhenU.com: Memorandum Opinion and Order Denying Plaintiffs' Motion for Preliminary Injunction [PDF]. The decision is an important victory for the end-to-end principle against attempted incursions by trademark and copyright law. Of course, there are a lot of facts to wade through, including this nugget for which Ben Edelman is cited as the authority:
Since 1996, millions of computer users have become regular users of the Internet and the World Wide Web.
Gee, didn't know that. Additionally, we learn:
Continue reading "Pop-up Ad Firm WhenU.com Beats Preliminary Injunction Sought by Wells Fargo"iRATE Radio has nothing to do with the angry blowhards of the talk radio circuit, but rather is an open source,
collaborative filtering client/server mp3 player/downloader. The iRATE server has a large database of music. You rate the tracks and it uses your ratings and other people's to guess what you'll like. The tracks are downloaded from websites which allow free and legal downloads of their music.
I haven't actually tried this yet (I've got too much stuff on my system as it is and it looks like it is pretty early in the development cycle), but it sounds like something I've been wanting for awhile (see, The End of the Beginning: The Death of MP3.com).
I haven't been following court technology very closely lately (mostly through frustration with their resistance to truly open court publishing), but this story caught my eye. The San Antonio Business Journal reports that PEC Solutions (motto: "Web-enabling Government") has received a contract from the Administrative Office of the US Courts to switch the Federal Judiciary's IT infrastructure to Linux (U.S. Courts hires vendor to migrate to Linux/Intel platform). Read the press release: PEC Solutions to Migrate Federal Judiciary’s National IT Infrastructure to Linux/Intel Platform. From the press release:
PEC will support the transition of the Judiciary’s mission-sensitive applications, including case management, finance and accounting, probation and pretrial services, and case-tracking management systems to the Linux standard. PEC will provide Linux operating system and applications technical support and assistance, including planning, advice and recommendations, help desk support, installation and testing support, and full problem resolution.
O'Reilly Network writer Andy Oram, inspired by Dave Winer's piece on candidates taking stands on internet regulation, makes a plea for a global approach towards information law (Time for a data transmission summit). I couldn't agree more with Oram that we should view many of the issues involved with regard to cyberlaw as an interconnected whole. It is interesting that Oram frames this issue as one of "data transmission." This echoes my viewpoint. As I am wont to say, "It's all about the distribution."
For example, when we discuss copyright reform, it is almost always in the context of existing telecommunications regulation. However, what if existing telecom regulations are part of the copyright problem? If, for example, there is a near monopoly on the primary means of music distribution, such as radio, won't that seriously distort the market that copyright is supposed to create?
Really, isn't telecom about the distribution of information (subject to the First Amendment, as I note here: It's Freedom of the Press, Stupid). Isn't copyright really about how copyrighted information is distributed? An argument that I make here: Taking the Copy Out of Copyright [PDF].
Of course, I'm completely onboard with a summit dealing with issues of "data transmission" taken from a broad point of view. However, I'm not sure if a summit is a good idea right now, since there isn't really a consensus yet that all these elements are actually related and what the nature of that relationship is. My concepts may be wrong, but I am convinced that there is a relationship among these issues. Perhaps the nature of that relationship is what a summit should address.
There has been a lot of discussion on the net recently about making internet regulation a major political issue, starting with Dave Winer's post on getting presidential candidates to "make an impassioned plea to keep the Internet free of interference from the entertainment industry" (An issue in 2004: Keeping the Internet free from the Media Companies). I'm not going to attempt to follow the whole discussion, but Mary Hodder has a good post on the bIPlog (Dave Winer on Media Companies, Control of the Internet and the Election).
However, there is one post on this issue that particularly struck me. Telepocalypse makes the bold claim that End-to-end is a political statement. He's right. But it is not political in the sense of Democrats and Republicans, or even elections. It is political in a far more fundamental sense, that of the proper ordering of a free society. It is fundamental in the sense that the Bill of Rights is fundamental or the Declaration of the Rights of Man is fundamental.
You may think that I am being hyperbolic, but I would disagree.
I'm going to make a radical claim here: End-to-end is a critical element of freedom of expression and is, in fact, built into the First Amendment.
Continue reading "It's Freedom of the Press, Stupid"Two of the presenters at The State of Play conference, demonstrating their wide-ranging interests, are finding trouble regarding ICANN.
Michael Froomkin is writing about the negotiations regarding the Free Trade Area of the Americas (FTAA) treaty, in particular, the issue of domain names on the internet (Domain Names and the FTAA: A Bad Mix). Some of the problems with the FTAA as regards intellectual property have been noted here previously (IP Justice on IP in the Free Trade Area of the Americas Treaty). Froomkin is rightly critical of the mandate that countries adopt the Uniform Domain-Name Dispute-Resolution Policy (UDRP) already used by ICANN for ".com" (among others) for use with regard to each countries' top level domain name, such as .ca for Canada. If you are interested in this issue, Froomkin's post is quite informative.
Susan Crawford post is bluntly entitled, Things are getting worse at ICANN. Crawford is rightly disparaging of ICANN's report that justifies a decision to amend contracts between ICANN and the registries: Staff Manager's Issue Report on the Need for a Predictable Procedure for Changes in the Operation of TLD Registries.
The information design site Boxes and Arrows has published a fascinating story on Paul Otlet, who they call "the forgotten forefather of information architecture" (Forgotten Forefather: Paul Otlet). Apparently, he foresaw much of what we know as the World Wide Web in 1934. His system used millions of mechanically stored 3x5 cards to create a "universal book" or "web" of human knowledge that could be accessed by "electric telescope" and was interconnected through "links." Great stuff.
Perhaps some enterprising authors will write some alternate history stories involving Otlet. Not Victorian-era Steampunk, but rather, 1930's "Pulppunk".
via Smart Mobs
Although I was somewhat conclusory in my previous posting on the subject (Madster Seeks Supreme Court Cert), I still believe that it is in the best interests of all those who want to uphold the Sony v. Universal decision that the Supreme Court decline John Deep's Petition for Writ of Certiorari in the Aimster/Madster/Deep case. I believe that, unfortunately, Deep muddied the waters of his defense and this is a poor set of facts to stand upon before the Supreme Court. Without my going into more detail, Derek Slater has written a good summation of the reasons not to support the writ (My Reply to John Deep of Aimster). For the opposing view, see Aimee Deep's (John Deep's daughter) views on the subject (John Deep v. RIAA - O Ye of Little Faith).
Thank goodness! The TiVo-addict friendly PVRBlog reports that HDTV-capable TiVos will be available for sale the first quarter of 2004 (HDTV-recording TiVo). See a picture of the device here: TiVo HD DVR. What this means, of course, is that such devices will be available without broadcast flag implementation, at least until July 2005, as many of the commentators on PVRBlog note.
Interestingly, PVRBlog is selling a home-modified TiVo (extra capacity, wireless connectivity) on eBay (Upgraded Series 2 188hr TiVo, HMO & wireless). Pretty good price right now, too. Unfortunately, under the current regime we won't be seeing too many home-modified devices after July 2005.
via Gizmodo
Donna Wentworth points out (Kucinich Posts Excerpts from Diebold Memos) that Representative (and Presidential Candidate) Dennis Kucinich (D-OH) has now posted excerpts of the infamous Diebold memos on his website on a page devoted to voting rights (Voting Rights). It should be noted that Diebold is now claiming that the juiciest excerpts from the leaked memos are copyright violations as well (Letter from Cindy Cohn to Judge Fogel [PDF]). While Diebold might have a colorable claim that posting all the memos is a copyright violation, there is no reasonable claim that publishing the excerpts is not fair use. It will be interesting to see how Diebold responds to Kucinich's postings.
Kucinich also condemns Diebold's use of the DMCA to silence those who have posted these memos:
Diebold has been using coercive legal claims to intimidate internet service providers and even universities to shut down websites with links to its memos and remove the memo content. Under copyright laws, however, universities are exempt, and posting links to the memos is not considered a violation of the law. By abusing the Digital Millennium Copyright Act, Diebold has intimidated numerous internet service providers to comply with its requests. The damage is two-fold: 1) limiting the public’s information about the security of its voting machines, and 2) expanding corporate control over our most free medium of expression, the Internet.
UPDATE 1745 PT
Doug Simpson brings up some good points on his Unintended Consequences blog (Congressman Posts Diebold Document Excerpts). He discusses the "Speech and Debate" clause of the US Constitution (U.S. Const. art. I, § 6, cl. 1):
The Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, beprivileged from Arrest ... and for any Speech or Debate in either House, they shall not be questioned in any other Place.
And notes the analogies of the present case with Brown & Williamson Tobacco Company v. Williams 62 F.3d 408 (D.C. Cir 1995), a case involving tobacco industry documents leaked to Congress. The case is a very good introduction to the issues involved in the "Speech and Debate" clause. I second Doug's comment that, "I'd like to be a fly on the wall when those [a notice-and-takedown letter] arrive[s at house.gov's ISP]."
Instapundit, aka mild-mannered law professor Glenn Reynolds, laments the death of MP3.com on Tech Central Station (Death of a Friend). I too, lament the death of MP3.com and the threat it posed to the distribution oligopolies of the extant recording companies. However, I'm not nearly as pessimistic as Prof. Reynolds about the possibilities for online music.
Reynolds notes that MP3.com might simply have been a "false dawn." I agree. We have not yet seen the full range of possibilities for the distribution of music, just as the first wave of internet home pages did not obviously indicate the path to the current blog renaissance. When people can share playlists and collaborative filtering creates automated radio channels (automatically downloading songs to your device), and the technology is transparent and ubiquitous, then we will have a better idea of where music distribution will wind up. I don't want to go to a website to find alternative and independent artists. I want to listen to cool radio stations (run by people or algorithms I trust) that will introduce me to great music that I can immediately save for later listening. Until then, we are stuck in a world in which proprietary systems clash with each other in a (hopefully) futile attempt to control citizens, consumers and producers.
See also, Derek Slater's questions about control over distribution technologies (Sony, Napster, and the Subtler Problems with a Redesign Rule for Copyright Liability).
The writer of one of my favorite blogs, Furdlog, is honored with the first annual Joseph Nemec ESD Educational Excellence Award (Dr. Frank Field Honored). Congratulations!
The Detroit News reports that the FCC is planning to deny "dual must carry" for television broadcasters (FCC won't require cable operators to carry digital TV shows). Under "dual must carry" the cable companies would be required to carry both the analog and HDTV signals from the television networks. Without "dual must carry" the broadcasters would have to decide which signal the cable company carried. If they insisted on the analog signal, the majority of Americans who receive television via cable would have no incentive to buy HDTV systems. If the broadcasters insisted on the HDTV signal, they would lose the majority of Americans who do not have HDTV receivers yet.
The broadcasters are stuck between a rock and a hard place. It was precisely the difficulty of the transition that was one of the main justifications for giving broadcasters additional bandwidth so that they could continue to broadcast analog and HDTV at the same time. Apparently, this is far too burdensome on the cable companies:
"Commissioners seem to think there'd be too much of a burden on cable without sufficient public benefit," said Blair Levin, an analyst with Legg Mason Wood Walker Inc. who was an FCC chief of staff.
Funny, the commissioners didn't seem to care about the burden on the consumer electronics or personal computer industries (not to mention the consumers themselves) when they mandated the broadcast flag. Really, which is more burdensome, forcing cable companies to carry a few more channels or seizing control over huge swaths of the hardware market? I think the answer has more to do with which industry has the most effective lobbyists in the FCC. Really, who has the most effective lobbyists in the FCC, the cable companies that have had to deal with and capture lobby the FCC for decades or the consumer electronics and computer industries which have relatively seldom had to deal with mandates like the broadcast flag?
So, not only do we get the broadcast flag, the FCC delays the transition to HDTV once again. The consumers and citizens benefit from this inconsistency, how?
via Smart Cog
FREE MICKEY! Today is the the 75th anniversary of the release of Steamboat Willie (Birthday boy Mickey Mouse still a film great after 75 years). Need more be said?
via Furdlog
Rep. Zoe Lofgren (D - San Jose, CA), has written a nice commentary castigating the FCC's broadcast flag ruling in the Mercury News (FCC rule could harm tech innovation). Let's only hope that representatives for places other than Silicon Valley will take a similar consumer and citizen-friendly position.
Eric Rescorla's Educated Guesswork blog brings up a concept I've thought about for quite some time, selling MP3 players pre-loaded with music (The future of the iPod?). In Eric's concept, although heavy discounting is involved, the price for a populated iPod would be about $1000. That is still a pretty high price, particularly with all the DRM involved. But the price doesn't seem all that outrageous as part of the price for a new luxury sedan or SUV.
So, why not have cars marketed with an integrated MP3 player pre-loaded with a nice selection of music? Cars are mostly marketed as a lifestyle purchase anyway, often through the use of music. So, why not spice up that purchase with a generous selection of music that matches the particular purchaser's lifestyle? Why shouldn't a music package simply be one of the possible extras and accessories that car purchasers choose along with color, fabric and undercoat protection?
Apple and Volkswagen once ran a promotion in which iPods were given away with the purchase of a new Volkswagen Beetle (iPod and Volkswagen Beetle unite). Why not take it to the next step?
A number of folks, such as BoingBoing and Furdlog, point to a parody website advocating sending MP3s by email, post or fax to the regional authorities for the RIAA (Send Them Back.org). The joke is that if you "stole" the MP3s, it is only right to send them back as a sign of contrition. A mildly amusing concept. There is a problem here, although it isn't the one that concerns Joho and Scripting News. The problem is that emailing MP3s to the RIAA is a violation of copyright (the RIAA doesn't actually own the copyrights). Additionally, by emailing the MP3s, you are (unless you are carefully taking precautions) telling the RIAA exactly who you are. At a minimum liability of $750 per MP3 mailed, the joke could turn sour very quickly. While I don't think that the RIAA will actually sue people who do this, they just might, or at least take a closer look at those who have (are you sure the RIAA doesn't have any evidence of your previous file-sharing?).
Thanks to the new Second Life license, discussed here (New IP Rules for Second Life), there has been a request by a director of machinima to "film" in the world of Second Life. Permission has, of course, been granted.
Cool.
Just a quick note from The State of Play: Games, Law and Virtual Worlds.
The developers and people behind the US Army recruiting/education game America's Army are well-represented. I asked one of them whether they were developing a version of America's Army for use on the Xbox through Xbox Live. Seemed like an obvious extension of what they were doing to me. His response? Quite seriously, "I can neither confirm nor deny." I'll take that as a qualified, "yes," although it will be interesting to see how the US Army gets along with Microsoft's proprietary Xbox Live network.
One of the issues near and dear to my heart.
Games are different, because they were interactive, better, richer, more empowering, more speechy. The implication for free speech is that they are closer to the core of speech. When you defend porn, you talk about James Joyce, when you defend about Grand Theft Auto you talk about Second Life.
Is choice really speech? Exercising what is artistically relevant (such as in bricolage or collage) is generally considered speech, no problem. Recording the action from a game looks like a movie. On the other hand, a football player also makes choices that create a result that looks like a movie.
The analogy is often made to "choose your own" adventure books. The problem with video games is not simply that you make choices, but that you also have skills (hand-eye coordination). The extra element is manipulating control, which seems more like the sort of thing football players do.
What would happen if videogames did encourage violence (just an assumption)?
Regulate conduct, not speech. Regulate the joystick, not the speech.
Existing regulations target "realistic" violence, not shooting bubbles. So, can we target certain conduct tied to specific types of speech? [My initial response can be found here: Michigan State Professor Argues Against Free Speech for Videogames.]
Analogy to hate crimes, targeting some actions/conduct for harsher penalties is they are joined with certain types of speech.
Second aspect to this idea of interactivity. The availability of choices are determined by the game designer. Constraints can vary from very limiting, such as Pong, or with lots of choices, like a canvas and paint.
The point being that interactivity is not an important aspect of our arguments as to why regulation is not a good response to regulating games.
UPDATE 1240 ET
UPDATE 2 1245 ET
Some bloggers are here, I'll try to update this list as I find other posters:
LawMeme:
Second Life Allows Players to Retain In-Game IP
Michael Froomkin
Random Notes on 'The State of Play'
Virtual Worlds: A Dystopian Thought Intrudes
Abandon All Hope Ye Who Quote Here (Warning - Lawyer Humor)
How Not To Pick Up Women Online
More notes from: The State of Play: Law, Games and Virtual Worlds
Dan Hunter is talking about various property regimes in virtual worlds and their analogies to real world property law. Read his paper (Virtual Property [PDF]). He is showing a live feed of the notorious Category 1654 on eBay, where you can buy and sell avatars, swords, etc. Conclusion ... Prof. Hunter believes that there is property here and we are going to have to figure out how to deal with it.
How did Edward Castronova get involved in this issue? He thought that eventually, there would be lawsuits. Lawsuits would create a need for expert testimony. Why not him? Read his conference paper (The Right to Play [PDF]).
UPDATE 1030 ET
UPDATE 2 1035 ET
UPDATE 3 1045 ET
UPDATE 4 1100 ET
Just an annoucement ... I am able to receive email, but I cannot send it currently. So, if you have emailed me in the last couple of days, please be patient.
Currently, I am in New York attending the New York Law School/Yale Law School conference on videogames and the law (The State of Play: Law, Games and Virtual Worlds).
This morning's panels is a discussion by founders of two of the most interesting MMORPGs, There.com and Second Life.
Philip Rosedale, founder and CEO of Linden Lab, creators of Second Life, had a very interesting announcement at this conference.
One of the most interesting things about Second Life is that the world is created by its users. They build and script many (if not most) of the models in the system. Second Life has been one of the leaders in such user-centered creativity.
The announcement is that there has been a change in the terms of service for Second Life. Second Life users will now be able to retain intellectual property rights in the things they develop for the MMORPG. Indeed, you will be able to actually transfer, buy and sell these copyrights in the real world. The new EULA does not yet seem to be available online yet, but this is very interesting.
UPDATE 0910 ET
There.com mentions that they have a dispute resolution process for copyright violations in their world. For example, There.com members create virtual clothing that they "sell" to other members using Therebucks. Some complaints have arisen that some sellers see other members wearing clothes they designed but did not sell. Other members of There, apparently, are selling "knock-offs" - so There.com runs a dispute resolution system. How it relates to existing copyright law is not clear.
Second Life expects, with their new EULA, that real world courts may have to resolve these issues.
UPDATE 0935 ET
In response to an excellent set of questions from copyright expert Yochai Benkler, Rosedale notes that they hope to embed Creative Commons licenses into their new system of copyright.
Prof. Benkler was skeptical about the purpose of embedding copyright law (which is a mess) into these virtual worlds ... why not enable a better system for sharing?
UPDATE 1100 ET
New Terms of Service are up.
A brief excerpt (but read the fine print):
5.3 Participant Content. Participants can create Content on Linden's servers in various forms. Linden acknowledges and agrees that, subject to the terms and conditions of this Agreement, including without limitation the limited licenses granted by you to Linden herein, you will retain any and all applicable copyright and/or other intellectual property rights with respect to any Content you create using the Service. . . .
UPDATE 1105 ET
Read the Linden Lab press release: Second Life Residents To Own Digital Creations. There is a quote from Larry Lessig:
Linden Lab has taken an important step toward recognizing the rights of content generators in Second Life. As history has continually proven, when people share in the value they create, greater value is derived for all. Linden Lab is poised for significant growth as a result of this decision.
The San Diego Union-Tribune runs a Reuters wirestory on the difficulties some have taking time off from their TiVo (PluggedIn: TV viewers find TiVo addictive). A long list of recorded shows on TiVo apparently makes some feel guilty not watching them. While in the past, if you missed a show, you simply missed it. Now the show sits on TiVo's hard drive waiting for you to watch it. I can imagine this can be a problem for some, but most people have experienced similar feelings at one time or another. Have you ever felt guilty about not keeping up with a newspaper subscription, for example? Do you have a stack of magazines waiting to be read, eventually?
Though I don't think this phenomena particularly compelling, I do think that the social ramifications of TiVo are going to be quite interesting, as we increasingly switch from traditional broadcast to new hybrid models.
Side note ... who else thinks that the TiVo trademark is in danger of becoming genericized?
via Techdirt, see also BoingBoing
The Washington Post has published a lengthy article about some of the problems the DMCA is causing (Caught by the Act). Any sympathetic press coverage of these issues is welcome. However, this article is as confusing as it is informative. The main problem is that the article conflates three separate elements of the DMCA into, seemingly, one confusing mess: the notice-and-takedown provisions, the anti-circumvention provisions and the super-subpoena power. At one point there is a paragraph on the Diebold case (which deals with the notice-and-takedown provisions) bookended by paragraphs dealing with alleged section 1201 violations. Even those elements that the article distinguishes are often confused. For example:
The music industry uses the DMCA to sue Internet song-swappers it maintains are violating copyright law.
Actually, no the industry isn't. The industry is using section 512(h) of the DMCA to subpoena information about alleged infringers. Whether the RIAA subsequently sues or not is mostly irrelevant. Indeed, many of the targets of 512(h) requests are now settling prior to the launch of a lawsuit.
However, there is one especially nice quote in the article:
"I won't predict the date," [Rep. Rick] Boucher [(D-Va.)] said, "but eventually, we will change the DMCA."
EFF has announced that DMCA-threatened company 321 Studios will donate $25 (up to $1,000,000) for every copy of DVD X Copy Platinum or Lite-On DVD burner sold through the 321 website or their retail location in the St. Louis Galleria Mall. Read the press release: 321 Studios Advocates Fair Uses in Digital Copyright Law. I think this is a great model for supporting challenged technologies. Hopefully other technology companies will take similar supportive measures.
I found this C|Net News story a little disturbing (Search engines face drug test). Apparently, the National Association of Boards of Pharmacy (NABP) is meeting with search engine providers in order to encourage the search engines to "clean up" ads for prescription drugs - by running only ads from those certified by, surprise, the NABP. This seems to be yet another move by major companies to control search engine results to favor their interests, following in the wake of eBay (Google ads a threat to eBay trademark?) and Netflix (Trademarks cast shadow on paid search), not to mention countries like France setting some unfortunate trademark precedent (Google France fined for trademark violation).
Of course, this issue is a little more complicated, since there are safety issues involved. However, isn't that why we have an FDA? Well, yes we do, but the FTC sounds a warning note about private lawsuits:
"I'm not convinced that they [search engines] won't (face private lawsuits) if some minor purchases a controlled substance through facilities based on ads they've allowed to run," Cleland [the FTC's assistant director for the division of advertising practices] said."
No doubt some attorney will try to run with that ball, but we can only hope the lawsuit fails. After all, do we allow billboard owners to be sued when minors buy alcohol advertised on billboards?
Commercial speech, though subject to different levels of protection than other speech, is still important from a freedom of expression point of view. Advertising via search engines is going to be an important aspect of this speech on the internet. We should be concerned about how search engines restrict this form of speech.
I've spoken with Merriam-Webster's publicist and although he had no immediate comment as to why the term McJob was removed from the new word samples page (see, McWimps - Merriam-Webster Caving to McDonalds Threats), he did provide me the following statement:
SPRINGFIELD, MA., NOVEMBER 2003—Merriam -Webster Inc., publisher of Merriam-Webster’s Collegiate® Dictionary, Eleventh Edition, stands by the accuracy and appropriateness of its definition for McJob:
“a low-paying job that requires little skill and provides little opportunity for advancement”
Words qualify for inclusion in the dictionary because they are widely and commonly used in a broad range of carefully edited sources. For more than 17 years, “McJob” has been used as we are defining it in a broad range of publications, including The New York Times, U.S. News & World Report, Publishers Weekly, Rolling Stone, The Times (London), The Boston Globe, Ms., Harper’s, The New Republic, Utne Reader, The Vancouver Sun, Sunday Times of South Africa, and Queensland Australia’s Courier Mail.
In editing the Collegiate Dictionary, we bear in mind the guidance offered by Noah Webster that “the business of the lexicographer is to collect, arrange, and define, as far as possible, all the words that belong to a language, and leave the author to select from them at his pleasure and according to his judgment.” The English language is constantly changing and evolving, and it is the duty of Merriam-Webster editors to record and reflect these changes.
I'm glad to see this statement, but I still wonder about the removal of the word from the sample page.
In a related post, Dana Blankenhorn looks at the economics behind the phrase (McEconomics).
UPDATE 1310 PT
Merriam-Webster responds to the question of the removal of the word from the sampling page:
The "New Words Sampler" on the free site was not the Collegiate Dictionary--it was a marketing tool to promote the dictionary. "McJob" has not been removed from the Collegiate Dictionary, which can be found in print, CD-ROM, or online at www.merriam-webstercollegiate.com. Because people were confusing the content of the marketing piece with the full content of the Eleventh Edition of the Collegiate Dictionary, it is currently under revision; a new version will be restored soon online.
Hmmmm ...
UPDATED 1630 PT
Don't know why I misspelled Merriam "Mirriam", but I did. It is now corrected.
Although it hasn't gotten much attention, this is a pretty major story - the FCC is requiring wireline phone providers to let customers take their landline numbers to a cellular phone. Read the press release: FCC Clears Way for Local Number Portability between Wireline and Wireless Carriers [PDF].
Commissioners' statements [PDF]:
Powell
Abernathy
Copps
Martin
Adelstein
You can also read: C|Net News - FCC: Number-switching rules apply to all and the New York Times (reg. req.) - F.C.C. Backs Phone Number Portability.
Of course, this order does not require the opposite, that you can take your cellphone number and transfer it to your landline (the, perhaps valid, excuse is the expense of updating old telco tech). However, the convenience of such portability is not to be underestimated. Increasingly, customers will be abandoning landlines and using cellular as their primary voice device. This is bad news for the traditional telcos as Kevin Werbach points out (Number portability and the telco death spiral).
Of course, VoIP can be inherently portable. For example, I can take my Vonage router and connect it (via ethernet) to any broadband connection and phone calls to my assigned number are routed there.
The recording industry thinks that new technology threatens their existence ... the telcos are dead men walking.
On Saturday, I took a look at McDonalds claim to be upset by the inclusion of the word McJob in the eleventh edition of the Merriam-Webster dictionary (McTrademark Follies). As I noted, the complaint seems quite specious since the word has been in common usage for nearly a decade and is found in many other dictionaries.
However, yesterday, Blind Höna | På Kornet noticed that the Merriam-Webster website has removed the term "McJob" from their page touting new words added in the 11th edition (McDonald's Newspeak: Unwanted words purged from dictionaries).
The evidence is clear: note this source HTML for the page with a list of some of the new words added to the 11th edition (http://www.merriam-webstercollegiate.com/info/new_words.htm):
<!-- pulled 11/10/03 <p>
<a name="McJob"></a><strong>McJob</strong> . . . . <em>noun</em> (1986) <strong>:</strong> a low-paying job that requires little skill and provides little opportunity for advancement
-->
UPDATED 1640 PT - Corrected misspelling.
Derek Slater has had a chance to think a bit more about the recent adoption of Napster by the Nittany Lions and the results are worth reading (Responses to Thoughts on PSU/Napster). His main point in this post is that it doesn't make a lot of sense for PSU to spend money on Napster. Although colleges often spend money on things like cable access for students, Derek makes the case for distinguishing Napster from these other services.
The very interesting Mark Evanier has purchased one of the new TiVo's with recordable DVD which I wrote about a couple of weeks ago (TiVo is Officially an Endangered Species?). He has written a fairly substantial review from his personal experience with the device (Toy Story). His opinion is mostly positive, though there are some v1.0 issues. Overall, though, this is the device that any TiVo lover will want (and everyone who has actually used a TiVo loves it). Forget HDTV ... this is the future of digital television, if only the FCC would recognize the fact and get out of the way.
via Gizmodo
Three days ago, I posted regarding an almost off-handed comment by Mickey Kaus regarding the MPAA's move toward an anti-file-sharing litigation strategy (Motion Picture Studio Chiefs Want MPAA to Adopt Anti-File-Sharing Litigation Strategy). Yesterday, the LA Times (reg. req.) published a much more indepth analysis of this new blockbuster strategy (Is Hollywood Failing to See the Big Picture?). The article should be required reading for anyone following these issues and there are certainly some interesting quotes:
Warner's chief, Meyer, predicts that "there is a day coming when, to properly protect movies from piracy, we'll leverage off the original theatrical marketing campaign and release movies any way the consumer wants it — on his computer, on his TV or at Wal-Mart — all at the same time."
Gizmodo reports that Sony's new personal video player will soon be available in Japan (Sony's Personal Video Player is a reality). The device can hold 31 hours of video and can be uploaded via USB 2.0. No word on when the device will be available in the US, but hopefully before the broadcast flag mandate takes effect.
For those who don't know, I'm a prior enlisted Marine and graduating from boot camp is one of things I am still most proud of.
WIRED publishes a Reuters wirestory on Sony re-launching its ConnecteD CD Extras format as a new type of DRM (Sony's User-Friendly Copy Block). Love the title for the piece - where did it come from? The press release? Simply more evidence of Sony's consumer electronics schizophrenia. How long before someone like Alex Halderman writes a critique of Sony's DRM as devastating as Halderman's analysis of SunnComm's (Analysis of the MediaMax CD3 Copy-Prevention System).
Newsday runs an AP wirestory on the demise of the printed pornographic magazine in the age of the internet (With Internet competition, adult magazines see circulation woes). Obviously, the availability of porn via the internet is having an effect on the availability of printed porn - though Larry Flynt's quote "I'm not going to say it's going to become extinct because some people will always want to feel that magazine in their hands" brings up some disturbing imagery.
Techdirt makes the good point that pornographers often lead the way in adopting and adapting to new technologies - perhaps this is another example of such evolution in progress (Internet Competition Killing Off Adult Magazines). Videotape, of course, essentially killed off the adult theater - though it didn't kill off movie theaters in general, so the analogy isn't inexact.
One thing the article doesn't go into is the prevalence of pornographic piracy, which is likely as prevalent as music file sharing. No blaming the failure of Screw Magazine on piracy from Al Goldstein, for example. Instead, Goldstein says, "we [porn magazine publishers] are an anachronism; we are dinosaurs; we are elephants going to the bone cemetery to die. ... The delivery system has changed, and we have to change with it if we want to survive."
Of course, there is still old media thinking in the case of some internet pornographers. According to an AP wirestory in USA Today, a pornographic website is suing two models for violating a non-compete agreement when the models quit one website to pose for another (Internet adult business in legal battle with former models).
I'll have to admit, I didn't forsee this use of RFID. Yahoo! News is running a story about how Australian fisheries investigators implanted microchips under the skin of protected fish and later found the chips in fillets in the poacher's freezer (Chips in fish help net Australian cod poachers). Technically, the article doesn't say whether the chips were RFID or not, but that would make sense. The idea is a pretty cool concept that could possibly be used in a number of other wildlife management investigations.
Of course, this makes me wonder what happened to any of the chips the poachers might have accidentally ingested. What if you could make digestable, degradable (perhaps even nutritious) RFID chips that could be put into food? How might this help the FDA track and keep our food supply safe? Imagine being able to scan that hamburger in the market and find out where it came from and when. Some interesting possibilities here ... either that or I am over-caffeinated this morning.
via Smart Mobs
UPDATE 1000 PT
In a strange coincidence, there is an article today in SearchEnterpriseLinux noting that the Australian Fisheries Management Authority has switched to Linux (With Linux, fisheries authority hauls in ROI).
The Harvard Crimson does a pretty good write up on Derek Slater's recent notice-and-takedown message from Diebold for posting the e-voting memos (Student Accused of Violating Copyrights). Here's hoping that Harvard removes the accusation from Derek's permanent record. Seriously, Harvard needs to revisit its DMCA policy. Two strikes and you lose access to the network for a year might be reasonable for flagrant infringers, but in disputed cases, especially those involving political speech (such as Derek's), the policy is clearly draconian.
The American Booksellers Foundation for Free Expression has launched a new campaign to support their challenges to the PATRIOT Act provisions that give law enforcement wide discretion to seize various records, including bookseller and library records. The campaign adds a cool new homophone to the language: Freadom.
via Copyfight
If you are not familiar with it, you should definitely check out America's Army, the videogame produced for and about the US Army. The videogame itself is excellent and the concept, videogames that stress realism as a recruiting tool, is not exactly revolutionary, but not far from it. The game itself has been out for a year now, with a major update released just this past week. For a good overview of the game and some of the issues being raised, see this Chicago Tribune (reg. req.) article (Army targets recruits with new game). Once you've read the article ... give the game a try. It's free and if you don't want to hassle the 500MB download, get a copy on CD from your local Army recruiter.
via En Banc
UPDATE 0915 PT
MIT's Technology Review has an interesting article regarding some of the issues surrounding realistic war-based videogames (War Games). The article discusses America's Army, of course, but also September 12th. There is also quite a provocative quote from one game company:
In a world being torn apart by international conflict, one thing is on everyone’s mind as they finish watching the nightly news: 'Man, this would make a great game.'
It'll be interesting to see where Kuma Reality Games goes with their news-based game Kuma War ("From the Headlines to your PC").
Gonzalo Frasca, a game theorist and author of September 12th, thinks his ideas were somewhat misinterpreted by the article (Henry Jenkins on War Games).
The New York Times (reg. req.) has a decent summary of the many issues, controversies and scandals regarding Diebold's e-voting machines (Machine Politics in the Digital Age).
Slyck, a P2P news site, reports that Madster (the P2P program formerly known as Aimster) is seeking a Writ of Certiorari to have their case heard before the US Supreme Court (P2P Company Takes Battle to Supreme Court). You can read the petition here: Petition for Writ of Certiorari (03-658). The case was brought by members of the recording industry alleging contributory and vicarious copyright infringement by Madster. The district court granted a broad preliminary injunction against Madster and the Seventh Circuit upheld the preliminary injunction. Read the Seventh Circuit's decision (authored by Judge Richard Posner) here: In re Aimster, 334 F.3d 643 (7th Cir. 2003).
I don't think the Supremes will take the case and, frankly, I hope they don't. This would be a bad set of facts and argument to use as the basis for the court to take another look at Sony v. Universal.
via Zeropaid
Washington Post Fast Forward columnist Rob Pegoraro has written quite an attack on the FCC's Broadcast Flag mandate (FCC Deserves a Digital Thanks for Nothing). This is a reporter who gets it:
The Federal Communications Commission has figured out how to make digital television more appealing to the millions of consumers who haven't bought into it: Force manufacturers to make hardware that's less capable than what's sold today.
Telepocalypse paints an ugly picture for the future of telecom as he postulates that the major players will fight to control one of their last remaining bulwarks - the voice directory (OPINION://RIAA, MPAA, CTIA?). In particular, he thinks that VoIP will trigger a battle that will pit telco vs. customers:
Expect directory access to be the Normandy landing of the IP revolution....The final march to Berlin will be around whether you or your telco controls inbound connection requests to your own devices.
Provocative stuff, with perhaps more than a grain of truth.
MSNBC runs an AP wirestory reporting that hamburger purveyor McDonalds is upset by the inclusion of the word "McJob" in the latest version (11th Ed.) of the Mirriam-Webster dictionary (McDonald’s balks at ‘McJob’ entry):
In an open letter to Merriam-Webster, McDonald’s CEO Jim Cantalupo said the term is “an inaccurate description of restaurant employment” and “a slap in the face to the 12 million men and women” who work in the restaurant industry.Continue reading "McTrademark Follies"....
“McJOBS is trademarked and we’ve notified them that legally that’s an issue for us as well,” Riker [a spokesman for McDonalds] said.
First, the CEO of Red Hat says you should stick with Windows for the desktop, in this Silicon.com story (Red Hat CEO says you should buy Windows). On the other hand C|Net News is reporting that IBM will announce on Monday support for the Linux desktop(IBM warms to desktop Linux). Actually, the two positions are much closer than I've made them seem. Neither IBM or Red Hat is proposing Linux for the consumer desktop, but rather for the business or enterprise-oriented desktop. This is a significant move. Microsoft gained a lot of momentum from the ease with which people could switch between home and business PCs running Windows. If the Linux desktop does gain traction in the workplace, it won't be long before it makes significant moves into the home.
I don't often link to Mickey Kaus (he generally covers stuff that I consider off topic for this blog), but I certainly read him on a daily basis. Today he has an interesting post about the appearance of a conflict of interest with regard to the author of a recent puff piece profile of Jack Valenti in the New York Times (Another Easy One for Daniel Okrent, Public Editor!). Seems the author of the piece is the spouse of Amy Pascal, one of the Vice-Chairman of Sony Pictures Entertainment. Interesting enough ... but there was something even more interesting in Kaus' piece:
But here's what Weinraub was either too inhibited or uninformed to report: Valenti's bosses, the studio heads, are not happy with him. Why? Because he doesn't want to pursue a litigation strategy to combat the threat of piracy (maybe because he doesn't want to end his long Motion Picture Association career in an atmosphere of contention and controversy). But the studios are insisting on litigation. [emphasis in original]
So, seems like the MPAA will soon turn towards a litigation strategy similar to the RIAA's. Frankly, it makes sense to me.
Larry Lessig reports sad news (extraordinarily sad news). Noted copyright scholar and historian Ray Patterson has passed away. I never met him, but his writings have certainly informed my thinking about copyright and I would highly suggest his work to anyone interested in copyright issues. He will be missed.
C|Net News brings word that WiFi network providers don't get it (Wi-Fi providers move toward ISP model). Apparently, WiFi networks are trying to differentiate themselves by offering unique content. The article states that, "Wi-Fi service providers seem to be following in the footsteps of Internet service providers." If they are, they are a few years behind the times. Since when has it been true for connectivity that "Once you have a big enough or suitable network, the next draw for subscribers is specialized content"? These WiFi networks that attempt to have specialized content are just wasting their time and money. If that is how they think they will get more users and achieve profitability, they are sadly mistaken.
I've been following but not posting on the SCO v. World copyright battle over Linux. However, this post from Groklaw is definitely worth passing on (The Grinch Who Stole Linux).
By the way, parody or satire?
Arnold Kling is mad as hell and he isn't going to take it anymore (Broadcast Flag This). He is calling for massive civil disobedience against the FCC with regard to the Broadcast Flag (An Open Letter to Jack Valenti). However, his idea of disobedience is not to hack the flag, but rather to hack the spectrum. Kling is calling for the public to use the assigned HDTV frequencies for Spread Spectrum Wireless in order to really revolutionize distribution:
By re-allocating spectrum from HDTV to wireless IP, we can kill two legacy birds with one stone. We can hasten the demise of the phone companies--because with a wireless "last mile" the wireless Internet can replace traditional land lines and cell phones; and we can show Jack Valenti, the movie industry, and the television industry what it really means to "score a big victory for consumers."
Nifty idea which I support, however, I'm just not sure how practical it is. Where will I get the hardware and software to do this?
George Mason University Economics professor Tyler Cowen has a pretty good take on the music industry mergers, I think (New music merger?):
This is a desperation merger in a fading industry. The real "industry sector" includes file sharing, once you count that, and the accompanying zero price, the concentration issues do not look so bad. On the other hand, shareholders should not worry if they don't get regulatory approval. I would expect a mess more than any significant cost savings, as the merger does not address the underlying problems faced by either company.
via The Bottom Line
Frank Field has extensive coverage on Furdlog of Penn State's recent offering of Napster 2.0 to its students (Slashdot on Roxio/PSU) (Penn State’s PR) (PSU/Roxio Deal Fallout). Also, don't miss Derek Slater's comments on the issue ... as a college student, he isn't happy (More Crummy Reporting on Penn State's Music Service).
UPDATE 0715 PT
Derek has a couple more posts on the issue (The Price is Wrong? (Pt 2)) and (My letter to Pho on PSU/Napster). Be sure to read the open letter here: psu/napster pho letter.
There has been an interesting discussion on the bIPlog regarding Mary Hodder's posting of news regarding the status of the Online Policy Group v. Diebold, Inc. case. The original post is here: Diebold Case Gets Accelerated by Judge. The comments are here: Comments: Diebold Case Gets Accelerated by Judge.
The interesting discussion starts with a "John Simpson" pointing out that while the case was accelerated, the request for a temporary restraining order was denied:
You, like everyone else in the "blogosphere" that I've seen, fails to note that the judge DENIED THE TRO!!!! That's the story, certainly more than the fact that the case was "accelerated."
A valid and worthwhile point. Probably all would have been fine if John had stopped there. Unfortunately, John begins to go off the track when he continues:
So much for Berkeley's journalism school.Continue reading "Who is John Simpson? Journalism, Lawyers and Blogging"
The World Wide Web Consortium (W3C) has been one of the leaders in ensuring the web is accessible to everyone despite disability (Web Accessability Initiative). Now, C|Net News reports that the W3C is concerned about access for the visually impaired being hindered by so-called "robot tests" (W3C criticizes antirobot tests). These tests, which are frequently used by websites for registration purposes, require a visual verfication of text and numerals obscured in an image so that a computer cannot decipher the text, but a human (with our awesome text processing capabilities) can. If you've recently signed up for a Hotmail account or for eBay or something, you've run into one of these tests. The tests have been fairly successful at preventing spammers and other bad actors from accessing protected services. Problem is, the visually impaired are also prevented from accessing these services.
This is a tough problem and I sympathize with both sides. The W3C has put forth a working draft in an attempt to develop some solutions (Inaccessibility of Visually-Oriented Anti-Robot Tests: Problems and Alternatives).
C|Net News has an interesting piece on the incompatibilities created by the use of DRM (Stalemate on digital content?). The underlying video might be standard MPEG, but the differing DRM used by two different systems makes the formats incompatible. You can't listen to Windows Media Audio (WMA) on iPod, and you can't listen to Advanced Audio Coding (AAC) iTunes on anything but iTunes.
This is sort of like the war between Beta and VHS, except here you have un-DRM-encumbered formats such as MP3 and Ogg Vorbis. Are Microsoft and Apple secretly trying to reduce the market success of their licensed music downloads?
Yesterday, C|Net News took a look at Toshiba's advances in small hard drives for portable devices (Tiny Toshiba drive gets a boost). These hard drives, which are only 1.8" in diameter, about the size of a credit card, can now store 40GB of information. They may already be used in the iPod and similar Hitachi drives are being used in Dell's new Digital Jukebox MP3 players. 40GB can store approximate 6 full-length movies or dozens of hours of television - all in something that fits in a shirt pocket. Heaven forbid that such innovative uses develop without the not-so-friendly regulatory arm of government controlling that development. Just how successful would the Diamond Rio have been if it had needed FCC approval first?
C|Net News reports that Amazon is now selling Linare Linux PCs for $199 (Desktop PC company begins Amazon deal). You can check out the PC here on Amazon here: Linare PC (1.3-GHz AMD Duron, 128 MB RAM, 30 GB Hard Drive, CD-ROM). While Walmart has been selling similar systems (Linux OS PCs) for some time, Walmart is not usually a store you associate with PCs.
One small problem with the Amazon technical specs page which I hope they change soon:
Special Features: Licence [sic] Free Operating System [emphasis in original]
RMS might take offense to calling something under the GNU license "license free."
Gizmodo points out how Nokia's new television/cellphones may have a significant surcharge (~$190) due to government regulation (Nokia's TV phone might cost a little extra). The Broadcast Flag? No, this surcharge is due to the license tax that many European countries charge for owning a television. At least in most European households you only have to pay the tax once, no matter how many televisions you own. In the US, the new Broadcast Flag tax will require you to pay for the additional equipment for each and every television you own.
Gizmodo points out a truly nifty little product - an external TV tuner with a USB connection that you can use for your PC or laptop (New external USB TV tuner from Canopus). The system comes with software that will let you record your favorite shows... for now. I wonder how much more expensive the device will be after July 1, 2005. I also wonder how difficult it will be after July 2005 to transfer shows from your laptop (copied while on the road) to your legacy home network - the answer according to the FCC will be "impossible for the average consumer."
Ernie the Attorney points to a neat little program called the iTunes Catalog that lets iTunes users (Mac only) create a professional-looking catalog (including album cover art) of all your iTunes music in HTML of PDF formats (What's in your iTunes music catalogue?). You can check out a sample catalog taken from Ernie's collection here (Ernest's Library). I think this very cool (though I don't have an iPod).
However, a few questions/points:
First, why do you have to pay ($10) for this software? The HTML catalogs can easily be linked into the iTunes store, thus providing lots of free advertisement for iTunes and their licensed artists. I rather expect Apple and its now numerous rivals to provide this functionality in upcoming releases for free. Heck, I would imagine that they would host the catalogs free-of-charge.
Second, where is the easy ability to publish playlists and the associated software that will let me automatically download all the music to go along with someone's playlist that I trust? I have eclectic tastes in music, but generally I don't want to indiscriminately mix genres (discriminately mixing genres for a playlist is something else). Playlist functionality would be a useful addition to all these online systems.
Third, people always talk about the social benefits of Original Napster-like collection browsing. Doesn't software like this provide almost the same social benefits (and in some ways, more), while being fully legitimate?
As part of its series on Microsoft's recently unveiled next-gen OS, Longhorn, C|Net News analyzes the strategy behind the software (Plan A for Microsoft). The strategy, according to C|Net, is a return to a "fat client" architecture, where lots of processing takes place on the user's PC or portable device, as opposed to a remote server.
Frankly, I don't really get this thin/fat client debate. The debate most often seems to be not whether there should be a server/client architecture, but how robust the client should be for the consumer. Personally, I've never really understood the value proposition for most thin client architectures, given the relative inexpensive of silicon and magnetic storage. The question for me is why consumers aren't running both clients and servers.
Many consumer electronic devices are basically computers, but they don't need to be that smart, they can be specialized. What I need for my consumer electronic devices is not easy internet access, but home network access. If Microsoft is looking for new markets for software, why not develop and sell a server for consumers? What I would like is a machine that homeowners can easily stick in a closet, but will provide media and applications functionality throughout the home. Consumers don't really need a new version of Office, they need something that will let them more easily manage their increasingly gadget-filled home.
Oh yeah, and it would be nice to easily run a server from home that handles all my internet publishing needs, but that is more of a telecom issue.
C|Net News' Declan McCullagh analyzes and reports on the FCC's broadcast flag mandate (Are PCs next in Hollywood piracy battle?). He notes the major and unprecedented impact this will have on PC design and manufacture. For the first time, the government is mandating how PCs may operate and how they may be networked. Those PCs that do not comply with the FCC's mandates will have to be crippled in their ability to use certain types of information. What a wonderful, freedom-enhancing action the FCC has taken. If this is the cost of HDTV, then give me analog television. Heck, give me black and white.
Prof. Ed Felten makes a good point on Freedom to Tinker about the FCC's justifications for the Broadcast Flag - they are incoherent (The Broadcast Flag, and Threat Model Confusion). The justifications for the broadcast flag and the effect of the broadcast flag are tangentially related at best. In the words of the FCC, "the broadcast flag seeks only to prevent mass distribution over the Internet." Additionally, according to the FCC, "consumers’ ability to make digital copies will not be affected."
Whether or not you agree with the justifications is not the question. The issue is whether the means the FCC has chosen are suited to the justifications. As Felten points out, they are not. The action the FCC has taken will not significantly, if at all, "prevent mass distribution over the Internet." It will, however, impede the average consumer's ability to make copies for friends and family.
Surely the FCC realizes this. If not, they must be stupid. The only other reason for the FCC to make such a statement, then, is to disguise their true intentions, that is, to dissimulate. In reality, the FCC should be saying that "the broadcast flag seeks only to prevent consumers from easily making copies for friends and family." However, such honesty would be a hard sell politically. It is much easier to demonize internet distribution than to tell people they shouldn't make copies for friends and family.
However, see also Seth Finkelstein's infothoughts on the matter (Broadcast Flag - desecration).
The Guardian has an interesting story on the rise of child pornography on P2P networks (Race to save new victims of child porn). Rather than simply bemoan it, the article points out how it has increased the ability of police to investigate. The main problem seems to be that there are too many targets to investigate, not that they can't be found. The article quotes David Wilson, professor of criminology at the University of Central England in Birmingham, as saying that,
The achilles heel of peer-to-peer is that it makes something that is secret and furtive into something that is public and when it is public that offers the police a window of opportunity to police it.
Indeed, the article goes on to note:
Paedophiles believe it is harder for them to be detected through peer-to-peer software but investigators are able to access their shared folders and quickly discover if they contain illegal images of child abuse. They are then able to establish the location of the owner of the shared folder. ....By exposing themselves to public gaze via file swapping services, paedophiles whose abuse may never have come to light are now more likely to be caught.
Before, police would have to conduct a raid to find the amount and type of child pornography on a suspect's computer. Now, they can browse the suspect's shared files from the precinct house and learn a lot more about what their suspects have been up to (and how dangerous they might be).
Of course, some worry that pedophiles will switch to encrypted networks. Perhaps, but that means it will also be harder for pedophiles to find and provide support for each other. Either way I think this is a win for child porn opponents.
Okay, so I've been reading the FCC's Broadcast Flag requirements and I've noticed what appear to be a couple of potential loopholes for those interested in maintaining consumer rights past the July 1, 2005 deadline (Report and Order and Further Notice of Proposed Rulemaking). According to the FCC's new report, it is illegal for manufacturers and distributers in the US to provide non-DRM'd equipment (effective July 1, 2005) to US citizens, but perfectly legal to manufacture the devices here and sell or distribute them overseas:
§ 73.9009 Manufacture for Exportation.
The requirements of this subpart do not apply to Demodulators, Covered Demodulator Products or Peripheral TSP Products manufactured in the United States solely for export.
The FCC, apparently, believes that foreigners won't be pirates, but US citizens and residents will. Either that, or the FCC believes that foreign residents deserve to have media functionality that US citzens don't.
Whatever.
This reminds me of the old cryptographic requirements, only in reverse. In the earlier days of the web, there were a number of websites that provided cryptographic programs for download, as long as the downloaders were in the US, since it was illegal to export the programs, but not to distribute them domestically. The websites offering the programs for download made some attempt to block people from downloading the programs overseas.
Here, the situation is reversed. It is illegal to distribute domestically, but not to export. Thus, you can write an open source demodulator without DRM, as long as it is solely for export. I imagine you can make the program downloadable, as long as you make some effort to ensure people can't download the program from within the US.
This is a significant improvement over the DMCA, which prohibits virtually all distribution. Under the DMCA, you can't distribute DeCSS at all. Under this regulation, you could distribute the equivalent of DeCSS, as long as you distributed it only to those outside the US. Thus, for open source software developers in the US, they can distribute their work overseas (which will then be redistributed right back to the US).
Caveat: This is based on a quick reading of the regulation. I may be missing something that closes this loophole.
Salon reports that the FCC has approved the Broadcast Flag (FCC approves Internet anti-piracy tool):
While all five commissioners supported the order, Jonathan Adelstein, one of two Democrats on the five-member panel, said the decision did not safeguard viewers' privacy.
Great.
Continue reading "FCC Mandates Broadcast Flag"David Galbraith has an interesting post about Google's Trademark Complaint Procedure (Trademarking search terms). He wonders whether there is a "possibility of people trademarking terms and expressions specifically so that they can use them within Google ads?" In other words, whether people will trademark "Blog" candy, in order to control the use of the term "Blog" in Google ads - whether or not the ads had anything to do with candy. Given that Google has already been hit with court-imposed fines for trademarked keywords triggering ads, they certainly would be reticent to stop people from abusing the system this way (Google France fined for trademark violation). Thanks, France.
The Ninth Circuit has issued a divided opinion finding that the Beastie Boys are not guilty of copyright infringement for their sampling of a six-second, three-note segment of a performance by accomplished jazz flutist, James W. Newton. The decision is here (Newton v. Diamond, et. al. [PDF]).
While the decision is a victory for those who think that copyright law is over inclusive, it is not a particularly important decision per se because the facts are rather unique. However, the case is an interesting one and certainly illustrates the complexities and strangeness of current copyright law.
In this case the Beastie Boys had properly licensed the right to sample Newton's performance. However, Newton was suing for infringement of his underlying composition (sound recordings and their underlying compositions almost always being separate in current law). Thus, the court was forced to consider only the elements of infringement relating to the composition, not the performance. This hurt Newton's case since the richness of jazz is often more about the performance than the composition:
In filtering out the unique performance elements from consideration, and separating them from those found in the composition, we find substantial assistance in the testimony of Newton’s own experts. His experts reveal the extent to which the sound recording of “Choir” is the product of Newton’s highly developed performance techniques, rather than the result of a generic rendition of the composition. As a general matter, according to Newton’s expert Dr. Christopher Dobrian, “[t]he contribution of the performer is often so great that s/he in fact provides as much musical content as the composer.” This is particularly true with works like “Choir,” given the nature of jazz performance and the minimal scoring of the composition.
Once the court eliminated the special performance aspects of the sampled element (which was properly licensed), the question was whether or not the copying from the underlying composition was de minimus or not. An important element of the decision was whether the three-note sequence was particularly special:
This evidence is consistent with the opinion of Beastie Boys’ expert, Dr. Lawrence Ferrara, who stated that the sampled excerpt from the “Choir” composition “is merely a common, trite, and generic three-note sequence, which lacks any distinct melodic, harmonic, rhythmic or structural elements.” Dr. Ferrara also described the sequence as “a common building block tool” used over and over again by major composers in the 20th century, particularly the ‘60s and ‘70s, just prior to James Newton’s usage.”
Frankly, I'm surprised you need a court to determine that a three-note sequence (even if over another note) is so easily distinguished. How many possible three-note sequences are there? Haven't all of them been used at one time or another? Couldn't one easily write a program that would publish all possible sequences? The district court found that the three-note sequence lacked originality and was not copyrightable, but the appeals court didn't reach that issue.
The appeals court properly found the copying de minimus under the appropriate standard:
On the undisputed facts of this case, we conclude that an average audience would not discern Newton’s hand as a composer, apart from his talent as a performer, from Beastie Boys’ use of the sample.
The dissent, on the other hand, believed that the three notes would be distinctive no matter who performed them.
via How Appealing
Siva Vaidhyanathan has been blogging up a storm on the latest news on e-voting and the Diebold scandal (California panel delays certifying electronic voting equipment) (Breaking News: Electronic Voting Problems in Houston) (WNYC Covers Electronic Voting ... Badly).
Derek Slater hosted one of the mirrors of the Diebold memos on a Harvard server (Diebold, Harvard, and Me). Soon thereafter, Harvard received a notice-and-takedown from Diebold targeting Slater's mirror. Derek has taken the mirror down, and will not be contesting Diebold's actions (he is busy with other projects). However, Harvard has a policy of terminating network access for a year for people who have have received two notice-and-takedown letters (Even Harvard's Dean Misreads the DMCA Safe Harbor). The letter from Diebold would count as Derek's first strike. This two-strikes (without further investigation) and you're cut-off policy is bad in and of itself. However, as applied to Derek it is certainly unjust. Harvard should revise its "repeat offender" DMCA policy and not count Derek's actions as those of a repeat offender.
Good luck, Derek!
UPDATE 1205 PT
Derek writes to inform that he has not actually taken the materials down and has not yet decided on a plan of action.
Copyfight had the first news and a collection of interesting links for EFF's and Stanford's Cyberlaw Clinic's support for a lawsuit against Diebold (EFF, CIS Seek Court Order Against Diebold). The documents filed in the case can be found here (EFF Archive: Online Policy Group v. Diebold, Inc.).
While I applaud the efforts to shut down Diebold's attempt to silence the publicizing of evidence justifying the complaints of Diebold's critics, I'm not sure how viable some of the legal arguments being made are. Some are certainly stronger than others, but it will not be an easy case to win. For example, while I certainly think that publishing the memos is fair use, I don't think the case for fair use is so clear that Diebold "knew" that the copyright claims were false. On the other hand, Diebold certainly should have known that linking to documents hosted on another site is not covered by the DMCA notice-and-takedown claims. The misuse of copyright argument is clever, and I hope it succeeds, but it will be tough going as the doctrine isn't quite clear and most cases deal with issues relating to anti-trust, not political expression.
At the very least, however, the lawsuit should force Diebold to actually litigate the issues rather than merely rely on the notice-and-takedown provisions. Moreover, the arguments in the case will certainly be precedent-setting and very interesting.
The New York Times (reg. req.) has an informative article on new attempts at measuring the effectiveness of internet marketing (Measuring Online Ad Effectiveness). The new systems don't simply measure click-throughs and other basics like sales, but "online consumer trial rates and consumer awareness via Internet inquiries."
I wonder what would happen if they applied such techniques to television - such as through TiVo? Everyone seems to complain about the effectiveness of internet advertising, but how effective, really, is television advertising?
DocBug has a nice short commentary on "Trusted" computing (Trusted Computing). He uses an analogy I haven't heard before, that trusted computing is similar to the political officer in Soviet military units. Apparently, communist political officers "were great as long as you believed in what the Communist Party stood for." Trusted computing is the same, as long as you agree with the rules, having them be enforced is great. Bonus distinction, however, "you won't get shot for refusing to use TC on your computer."
