Michael Geist is really going after the injunction a Canadian court has issued regarding the accidental sale of Harry Potter books before they officially go on sale in a couple of days (Harry Potter Injunction). It baffles me that this injunction is considered to be part of copyright law, just as I don't really consider Harper & Row to be part of copyright law. Both cases seem much more similar to trade secret cases than copyright law.

Daring Fireball notes that two recent announcements from Apple have taken place with nary a word in the rumor mill (Plugged Leaks).

Note to crackpots: this is not a “chilling effect” of Apple’s lawsuits; to say so implies the rumor sites had information, but were intimidated from publishing it. That’s not the case — Apple Insider, for example, continues to publish whatever it can get its hands on,

It might not be a "chilling effect" on Apple Insider, but that doesn't mean that Apple v. Does has not had an effect on those who are actually doing the leaking. You'll be much less likely to leak if you think that those who publish the leaks have to turn your name over. It might also be, as Daring Fireball notes "the result of good old-fashioned leak-plugging." In other words, companies can control the leak of trade secrets if they try.

Reason's science correspondent, Ron Bailey, is unimpressed with studies that purport to show a connection between violent videogames and real-world violence (Video Violence = Real Violence?).

Law Prof. Michael Froomkin is hacking the anti-flag burning amendment before it has even passed (Flag Desecration In Every Day Life). He received a new credit card in the mail that had an image of the US Flag on it. Wouldn't want to desecrate that by putting it in your wallet and sitting on it all day long, would we? So Michael gave the credit card company a call:

Me: We received our new credit cards today. They have a picture of the American flag on them. I don’t think this is an appropriate use of the American flag. The card will get dirty, it will have stuff run over it, this will amount to flag desecration. It’s not right.

Female voice (after slight delay) : would you like to speak to a supervisor and see what he can do for you?

Read the whole humorous thing. This gives me a thought. Why not write a bunch of companies and complain about their use of the US Flag and your fear of being held guilty for the crime of desecrating the flag through use of their products (conveniently cc'd to your Senator)?

Media Law Prof Blog reports on an important college newspaper free speech case (Seventh Circuit Decides Hosty: Finds Against Student Journalists).

In a 7-4 decision, the majority opinion written by Judge Easterbrook, the 7th Circuit has found in favor of appellant Patricia Carter and Governors State University, and against the student journalists who objected when, in 2001, Dean Carter told the student newspaper's printer to hold any issues she had not okayed in advance. The students objected that her actions violated their right to free speech and sued both her and the university.

EFF's DeepLinks posts on the anti-porn regulations based on 18 USC 2257 and explains how they chill core political speech (Why the DOJ's 2257 Regulations Aren't "Just a Porn Problem"). This is a bad, bad law, not least because many people think it is only about porn.

WIRED reports that the government has agreed not to prosecute members of the Free Speech Coalition for violating the anti-porn regulatory provisions of 18 USC 2257 (Online Porn Dodges Major Bullet). Chances are the government won't prosecute anyone until the lawsuit is settled one way or the other, or at least one would hope. 18 USC 2257 is a bad, bad law for free speech.

Prof. Michael Madison points to the debate over Brand X that is starting on Picker MobBlog (MobBlawg LiftOff). [Btw, Picker calls his site MobBlog. I like Madison's MobBlawg better.] Michael agrees with one of the MobBlawggers that Brand X may ultimately be a more important decision than Grokster. Furthermore, Michael points to a Dec 2004 post of his that looks at the conceptual connections between the two: they both are means of regulating communication (On Grokster and Brand X). Abso-posi-lutely! It's all about the distribution man! It's freedom of the press, it's telecomm, it's copyright. It's Network Law. It's All About the Distribution, Stupid. It's Freedom of the Press, Stupid. We're going to need analytic tools that work similarly in all these areas of law and treat them as one whole system of regulating communication.

Anyway, for a very nice discussion of how to frame some of these issues, see Randy Picker's post, Framing Openness and the response from Phil Weiser here: Making Sense of Openness.

In response to, or perhaps, just going off on my own tangent I would like to bring in the traditional concept of common carriage as part of the openness conversation, as that is yet another way we've framed openness issues in the past.

For example, Picker makes an interesting comment:

I am comfortably in the camp of those who believe that an author should have some rights associated with her work and indeed don’t believe that even most of the copyright left favor eliminating all of the attributes associated with copyright.

Well, airlines are common carriers. But advocating common carriage for airlines doesn't necessarily mean that one wants to completely socialize airlines. I see the copyfight similarly.

Weiser notes:

Notably, in some cases, there will be alternative platforms (such as cell phones or video games), creating powerful incentives for some providers to voluntarily provide "open access" to their platform.

Heck, yes. But I'll note in reply that in the case of common carriage, we apply it despite the fact that there are many alternatives. There may be many airlines servicing a particular airport, some even duplicating routes, but we still regulate them as common carriers. Furthermore, airlines have competition from trains and buses. One might say "there are alternative platforms" for airlines, so why regulate them as common carriers? Yet, we do. Interesting, that.

Just some random thoughts on a beautiful Friday afternoon.

Free Internet Press has an excellent explication of the problems that 18 USC 2257 causes, handily illustrated with stick figures (2257 Aims Crush Adult Entertainment). A must read if you are unfamiliar with the issue. via Fleshbot, which is busy struggling to comply.

BoingBoing brings some much needed attention to the free speech abomination that is 18 USC 2257 and its enforcing regulations (Rotten.com: Our Gapingmaw.com and Other Sites Shut in Anticipation of 2257). These new regulations went into effect a few hours ago. I wish the lawsuit very well.

The BBC News reports on a study in the UK that found parents ignored videogame ratings when purchasing games for their children (Parents 'Ignore Game Age Ratings').

A study commissioned by the UK games industry found that parents let children play games for adults, even though they knew they were 18-rated.

Although the study was in the UK, I imagine similar results would be found in the US. Of course, this will just encourage our public nannies to cry out for legislation so that parents don't have to, you know, actually parent. Parents in the UK seem more concerned with the amount of game play, rather than the type of game. I'm not sure that is a wrong attitude. via Techdirt

Ronald Coleman points out the obvious and expected result of passing an anti-flag burning amendment: Flag Burnings Increase Dramatically. How many reported flag burnings were there last year in the US according to an anti-flag burning group that tracks such things? One. The idiocy of those fostering this unpatriotic amendment is staggering.

I'm not the only one. Constitutional Code is also concerned about the threat to free speech from 18 USC 2257, the pornography paperwork regulation statute (Online Anti-(Child) Pornography Rules to Take Effect).

Both the scope of the proposed rules and the likeliness of an anti-pornography agenda using such an important and delicate subject as anti-child pornography regulation, is troubling. By pushing pornography in the realm of child-pornography the needed subtlety for an effective, constitutional enforcement gets lost in the crudeness of generalization.

This is a really bad law. More from MetaFilter (This Whole Post is Probably NSFW...).

John Palfrey announces that the multinational Open Net Initiative has released its report on internet filtering in Iran (Iran Internet Filtering Report).

We at the OpenNet Initiative released our study on Iran today. Of the states that we have studied, Iran has one of the world's most sophisticated Internet censorship regimes. Iran has demonstrated its commitment to extensive Internet filtering through the targeting of weblogs, particularly those written in Farsi, the local language. The state blocks political, religious, and cultural statements on a range of topics from being written and seen online.

Read the 29-page report: Internet Filtering in Iran 2004-2005 [PDF].

Rather than expend effort on something productive, Senator Chuck Schumer (D-NY) prefers to posture against violent videogames (NY Daily News | Violent Game Furor).

"[25 to Life is] the worst in a series of violent and gruesome games that lower the common denominator of decency," said Sen. Chuck Schumer (D-N.Y.), who is trying to block the game from hitting stores in September.

One wonders why a Senator wouldn't leave the protests to some other organization or, in the alternative, try to pass some legislation. You know, because he's a Senator. More here: GameDailyBiz | NY Senator Seeks Ban of "25 to Life".

Jeff Jarvis discusses the ongoing controversy over severe cuts in the federal budget for public broadcasting and offers his own solutions (Saving Public Broadcasting). I'm not so sure many of them would work, but I do agree that we need to rethink public broadcasting:

: Reexamine the mission of public broadcasting in an era when the public can broadcast.

: Reexamine the mission of public broadcasting and when cable provides so much more value, like historical and educational programming (and I'm sorry that 11 percent of the country don't get TV via cable but, hey,

We really should reexamine the mission of public broadcasting, not only in the context of cable, but in the context of the internet and the coming of broadcatching. Perhaps we may want to figure out how to democratize distribution, rather than subsidize flawed distribution schemes.

I've been meaning to write about this indepth for some time, but haven't gotten around to it yet. The government is promulgating new regulations for record-keeping for pornographers under (18 USC 2257), a law I've said is a Little-Known Anti-Pornography Statute [that] Threatens Free Speech. WIRED has a decent introduction to the issue (Blue Law Makes Webmasters See Red). This may seem unimportant, but it is basically a flanking attack on free speech. The government can't go after the speech directly, so they create bogus regulatory requirements to shut it down.

The LA Times has a very good article on Microsoft's censorship of blogs in China, the background and the controversy (As China Censors the Internet, Money Talks). For more about this issue, I highly recommend Rebecca MacKinnon's My Response to Scoble.

But there was something that struck me about Microsoft's response to issues of censorship in China, according to the LA Times:

Microsoft adds that filtering objectionable words is nothing new. In the United States, the company blocks use of several words in titles, including "whore" and "pornography."

That's just great. What a fantastic way to show your support for freedom of expression, Microsoft. When people accuse you of censorship in China, justify your actions by proclaiming your support for censorship in the United States. I'm sure the Chinese government is very appreciative that you're implying a moral equivalence between China and the United States on questions of free speech.

Now this isn't recent news, BoingBoing pointed this out in December 2004 (MSN Spaces: Seven Dirty Blogs). But really, when you're defending your censorship policy in China, do you really want to brag about how you censor in the US, home of the First Amendment? Is this helpful? On any level?

And, you know, the policy is still asinine, as Xeni demonstrated so ably. Another, more recent example: if you wanted to discuss ICANN's new top level domain, .XXX, you wouldn't be able to put the .XXX in the title - which might result in some weird contortions of lanugage. And I guess some of the titles of my past posts would be too risque for Microsoft: PIRATE Act Reveals Sen. Hatch as Strange Ally of Pornography Industry; Little-Known Anti-Pornography Statute Threatens Free Speech; and The INDUCE Act (IICA) - Putting the Pornography Industry in Charge. Thank goodness I don't use MSN Spaces.

Microsoft probably doesn't have much of a choice with regard to censorship in China, but that doesn't mean they can't demonstrate a commitment to free speech. They could start by getting rid of their censorship policy here in the US. At the very least, they could stop bragging about it.

This political cartoon from David Horsey in the Seattle Post-Intelligencer is a must see: Horsey on MSN China. via Scripting.com

Jay Rosen's PressThink, a blog that I frequently comment on and respond to in postings here, has been named one of the best blogs defending freedom of expression by Reporters without Borders (Results of the Competition for Best Blogs Defending Freedom of Expression). Congratulations, Jay! UPDATE 1950PT Jay Rosen blogs his acceptance: One Tribe in Press Nation: PressThink Wins an Award.

Yesterday, I noted that it was Flag Day here in the good ol' USA (Flag Day). I also noted why it was still worth commemorating: Texas v. Johnson and US v. Eichman

These were the two most recent cases in which the Supreme Court found anti-flag burning statutes unconstitutional.

Today, USA Today reports that Congress is once again attempting to pass an anti-flag burning amendment and, once again, it is very close to passing in the Senate, only 2 votes shy (passing the House is a given) (Vote on Flag Desecration May be 'Cliffhanger').

But this time may be different. Amendment supporters say last year's election expanding the Senate Republican majority to 55 has buoyed their hopes for passage. Five freshmen senators — Richard Burr of North Carolina, Tom Coburn of Oklahoma, Jim DeMint of South Carolina, John Thune of South Dakota and David Vitter of Louisiana — voted for the amendment as House members and plan to do so again.

They will be joined by at least five Democrats who have co-sponsored the resolution, including Dianne Feinstein of California and Ben Nelson of Nebraska. Both are up for re-election next year.

Some experts don't think an anti-flag burning amendment will pass. I'm not so sanguine about the issue. It wouldn't take much demagoguery to push it over the top. Furthermore, it is more than sad that such a law comes so close to passing.

There is some good news, however:

A poll released last week by the Freedom Forum First Amendment Center in Nashville found 63% oppose a flag amendment, up from 53% last year.

"Clearly, more Americans are having second thoughts about using a constitutional amendment to" instill respect for the flag, said Gene Policinski, the center's executive director. "Many Americans consider it the ultimate test of a free society to permit the insult or even desecration of one of the great symbols of the nation."

It would be nice if our representatives could learn that little lesson in civics. Allowing others to insult our flag only proves how much faith we have in our nation. Voting for such a law doesn't show you to be a patriot but, rather, a coward who lacks faith in our nation's principles.

via Hit and Run

Last Sunday, on Corante's Podcasting Jeff De Cagna asked, what the role of profanity in podcasting was (Profanity in Podcasting: What is its Role?).

But there is an even more fundamental inquiry I'd like to pose here: what is the role of profanity in podcasting? Do we need to curse to demonstrate our fidelity to free speech? What is the point at which our defiant acts against the FCC will cease to be purposeful, and we will just become garbage mouths in the eyes (and ears) of our listeners? I know I'm probably messing with the bull here, so I'll be prepared! [emphasis in original]

The answer is simple, really. It plays whatever role the speaker desires. If that role doesn't mesh with the role the audience cares for, the audience will stop listening.

Use profanity, don't use profanity. It's a judgement call.

The real question is whether some censorship regime is necessary.

Last week on the Yahoo podcasters group, there was an extremely passionate discussion (complete with name calling) of profanity in podcasting and how it can be screened by listeners who prefer to avoid it themselves or want to keep it away from their kids. At the moment, of course, there isn't a way to screen for profanity short of listening to the podcasts. Some group members advocated a voluntary ratings system, while others recoiled at the suggestion. A key question is who gets to decide what is or isn't profane and by what cultural standard, an extremely relevant matter given podcasting's global reach. [link in original]

But really, is this necessary? The internet has a number of rating schemes, they're mostly useless. I've never noticed any blogs that are rated, why should podcasts? Depending on the audience, most blogs simply exercise a judgement call. Some refuse to publish vulgarities, others do. Sometimes the sites warn their readers, sometimes they don't. Seems to work just fine.

Of course, I'm sure the topic will come up again and again and again ...

A rumor that had been floating around this weekend about a hidden, sexually explicit mini-game in Grand Theft Auto: San Andreas had been debunked by Gamespot Rumor Control, but now they aren't so sure (Rumor Control: GTA PSP Screens and (More) Real-Time PS3 Demos).

Initially, UK Resistance pointed out that many of the graphics look "awful and amateur," so RC [Rumor Control] gave it a "probably bogus" determination. But over the weekend, RC was sent "evidence" from Gtasanandreas.net that the hack was "real." In fact, the evidence was even more mature in nature. So while its origins are unclear, there is a San Andreas sex minigame out there.

NSFW screenshots here: GTA San Andreas Hack -- Confirmed as Real. I can't confirm this hack, but if true, it shows that Rockstar Games really enjoys taunting would be censors.

Today is Flag Day, when we commemorate the adoption of the Flag of the United States.
 
 

 
 
Why it is worth commemorating the flag's adoption:
Texas v. Johnson
US v. Eichman

I haven't written about the recent controversy over Microsoft filtering certain words on their Chinese internet portal because I figured it would only be news if Microsoft hadn't caved in to censors (Microsoft Bans 'Democracy' for China Web Users). They're far from the first corporation to help the Chinese censor, they won't be the last. Rebecca MacKinnon has the best response I've seen (My Response to Scoble). Definitely read the whole, link-rich post.

I can tell you one more thing about the Chinese. They hear what you say, then they watch how you do business. From there, it's pretty easy to figure out what your real values are.

Perhaps, to soothe their corporate conscience should they have one, the companies that help China censor might also support organizations that create the tools to fight censorship. And I mean some real assistance. Don't just donate money. Microsoft could give some of its programmers the duty of working on some of the open source projects. via Instapundit