About this Author

Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
Copyfight
LawMeme
Listen to the weekly audio edition on IT Conversations: The Importance Of ... Law and IT.
Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T gmail.com
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Category Archives
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File Sharing |
Freedom of Expression
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Games
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July 13, 2005
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Geist Savages the Harry Potter Injunction Some More
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.
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July 02, 2005
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Apple Plugging Trade Secret Leaks?
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 Apples lawsuits; to say so implies the rumor sites had information, but were intimidated from publishing it. Thats 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.
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June 29, 2005
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If Violent Videogames Cause Violence, Where's the Crime Wave?
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?).
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June 25, 2005
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Hacking the Anti-Flag Burning Amendment
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 dont 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. Its 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)?
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June 24, 2005
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Seventh Cir. Decides Against Student Newspaper's Freedom of Speech
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.
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EFF on 18 USC 2257
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Enforcement of 18 USC 2257 Held in Abeyance
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.
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Posted by Ernest Miller
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 dont 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.
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+ TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | Open Access | Telecomm
June 23, 2005
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Why 18 USC 2257 is a Bad Thing - Handily Illustrated with Stick Figures
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18 USC 2257 Anti-Porn Regs Go Into Effect
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June 22, 2005
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UK Parents Ignore Videogame Ratings
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
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How to Ensure More American Flags Are Burned
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.
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June 21, 2005
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CoCo on 18 USC 2257
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...).
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Report: Extensive Internet Censorship in Iran
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].
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June 20, 2005
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Sen. Schumer Wants to Block Sales of Violent Videogame '25 to Life'
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".
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What Should the Purpose of Public Broadcasting Be?
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.
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June 17, 2005
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WIRED on Anti-Pornography Regulation
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Posted by Ernest Miller
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.
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+ TrackBacks (0) | Category: Freedom of Expression | Rating and Filtering
June 15, 2005
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Technology Companies' Commitment to Freedom
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Reporters Without Borders: PressThink One of Best Blogs Defending Freedom of Expression
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Posted by Ernest Miller
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
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+ TrackBacks (0) | Category: Freedom of Expression
June 14, 2005
Posted by Ernest Miller
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 ...
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+ TrackBacks (0) | Category: Broadcatching/Podcasting | Freedom of Expression | Rating and Filtering
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Sex Mini-Game in Grand Theft Auto
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.
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Flag Day
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MacKinnon on Corporate Support for Chinese Censorship
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
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Posted by Ernest Miller
I'm a bit late in blogging this, like by 24 hours or so, but I wanted to have a chance to read the thing. EFF has issued a For Freedom's Sake: Legal Guide for Bloggers. The difference between you and the reporter at your local newspaper is that in many cases, you may not have the benefit of training or resources to help you determine whether what you're doing is legal. And on top of that, sometimes knowing the law doesn't help - in many cases it was written for traditional journalists, and the courts haven't yet decided how it applies to bloggers.
But here's the important part: None of this should stop you from blogging. Freedom of speech is the foundation of a functioning democracy, and Internet bullies shouldn't use the law to stifle legitimate free expression. That's why EFF created this guide, compiling a number of FAQs designed to help you understand your rights and, if necessary, defend your freedom.
To be clear, this guide isn't a substitute for, nor does it constitute, legal advice. Only an attorney who knows the details of your particular situation can provide the kind of advice you need if you're being threatened with a lawsuit. The goal here is to give you a basic roadmap to the legal issues you may confront as a blogger, to let you know you have rights, and to encourage you to blog freely with the knowledge that your legitimate speech is protected. It is good (and I really dig the cover).
They need to make some buttons so that every blog can link to it in their navigation bar. [Correction: They have links here: Link to the Legal Guide for Bloggers. However, I still think they need some smaller buttons.]
UPDATE 1010PT They also have a very cool alternative poster: 
More from Copyfight: Do You Know Your Rights?
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+ TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression
Posted by Ernest Miller
Jeff Jarvis is attending the Annenberg Foundation Trust at Sunnylands' Institutions of Democracy and discussing the First Amendment and government support for media with mass communications professor Timothy Cook (Gov Giveth and Gov Taketh Away). Various ideas were raised by respondents that made my spine shake: taxing ads to support publications with fewer ads, giving postal subsidies only to publications below a circulation threshold, government search engines. As Jeff responds, "Arrrgh."
There is insight here: the government shapes our communications environment far more than we realize. However, these ideas for direct subsidy seem to do both too much and too little. Too much in that they invite all sorts of governmental decisions about what sort of content and media should be subsidized and too little in that they don't address the structural and architectural elements of our communications infrastructure.
Telecomm (and I'm not talking about the distraction about "media ownership") and copyright law are the real powers that shape our communications environment. You want to talk about government helping media, that is where you have to look.
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+ TrackBacks (0) | Category: Copyright | Freedom of Expression | Telecomm
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Korea to Require All Video Be Rated Before Distribution Via Internet
South Korea is going to require video distributed via the internet to be rated before it can be distributed, according to a report in the Korea Times (Online Video Clips to Receive Ratings). The purpose of the law is to reduce violence, which includes organized criminal activity, privacy violations and libel (something a bit lost in the translation, I think). In any case it will likely have a bigger effect in squelching free speech and amateur video. A couple of other aspects that seem a little strange: To tackle online privacy infringement, the government is also considering making Internet users disclose their real names....The government will also urge people privately publishing gossip to register the reports as regular publications. via Michael Geist's Internet Law News
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French ISPs Ordered to Block Holocaust Denying Website
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June 13, 2005
Posted by Ernest Miller
Denise Howell endorses (Putting The DMCA To Good Use) Kevin Marks's idea to use the notice-and-takedown provisions of the Digital Millennium Copyright Act to attack "spamblogs" (Using the DMCA for Good). There are spammers who copy entire blog posts from others to act as fresh bait for their search spoofing tricks. This is commercial use, and a violation of most CC licenses (and indeed default copyright).Stephanie Booth recently did this [issued a DMCA notice and takedown] to a spammer at www.famous-people.info who plagiarized one of her posts on Jennifer Garner, on what was a Google Adsense supported spamblog. When she sent a DMCA notice, they took down the page and apparently lost their Adsense status. [links in original] Although I sympathize with the desire to inhibit spamming and enforce copyright, I must demur. I cannot endorse use of the DMCA's notice-and-takedown provisions, unless there are no other reasonable legal alternatives.
The problem with the provisions is that they lack important procedural safeguards for free speech. Copyright holders can easily, with virtually no justification and no judicial oversite, cause a website to remove speech that is perfectly legal for days, if not weeks. There is no requirement that the copyright holder actually file a lawsuit, if there is a counter notification. There is no recourse for damages for false takedown notices as long as they were issued in "good faith." This makes the DMCA ripe for abuse (EFF: Unsafe Harbors: Abusive DMCA Subpoenas and Takedown Demands) and, among other reasons, an unjust law.
We should not use unjust laws, giving them legitimacy, unless there are no reasonable alternatives. In this case, there are a number of alternatives, such as sending a polite request, sending a threatening legal letter, contacting the ISP directly, or even suing for copyright infringement (statutory damages are your friend).
We should not be so quick to use law to terminate speech merely on our say so. You say spam, I say free speech (until a court rules otherwise).
UPDATE 0835PT
Please see the comments for a continued debate.
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+ TrackBacks (0) | Category: Digital Millennium Copyright Act | Freedom of Expression
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Institutional Press Afraid to Stand Up Against Trade Secret Law
Matt Welch writes about Apple v. Does for Reason (Who Gets to Play Journalist?). He passes briefly over the tired blogger vs. journalist debate and into the more interesting arguments regarding why trade secrets get so darn much protection anyway and castigates the institutional press for acquiesing in this. But you can also argue that in the balance of free expression, the legalities just dont matter that much. Free speech seems to become more legally constrained each year, yet free expression continues to boom. If bloggers are left unshielded, that will only serve to enlarge an already conspicuous paradox: that the people with the most press freedom seem the least willing to use it.
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What are the Democrats Thinking?
Over on C|Net News, Declan McCullogh blasts Democrats for supporting bills that would regulate videogame violence (What's Behind the Video Game Witch Hunt?). He's got a point: "In most cases these bills have been introduced by Democrats," Doug Lowenstein, president of the Entertainment Software Association, told me on Friday. "They've come from people who have aspirations for national office. They come from people who are interpreting the 2004 election as a values election and the Democrats lost on values. One way to recapture values is to attack violent entertainment, especially video games. It's a cold, calculating political effort." Indeed. Seriously. What is wrong with the Democrats? They heavily favor Hollywood over Silicon Valley in the copyfight, and they go after videogames in a way that they don't go after Hollywood (though they talk about it a bit). Why are they doing their best to turn off the next networked generation? There have got to be better ways to demonstrate their social conservatism.
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June 10, 2005
Posted by Ernest Miller
Andrew Raff Rox0rz! Yesterday, on IPTAblog, he posted what is likely the first vblog on a particular FCC indecency decision (And Now, Something Different).
I want one of these for every FCC decision.
Download the video: Arrested Development, Indecency and the FCC [Quicktime, 17.6MB, 5min].
(I had a little trouble with the playback, your mileage may vary.)
Read the 4-page decision it is based on: In the Matter of FOX TELEVISION STATIONS, INC., Memorandum and Order [PDF].
BONUS: Andrew Raff says he got the video of Arrested Development off a DVD. That likely means he violated the DMCA. Way to go, Andrew!
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+ TrackBacks (0) | Category: Digital Millennium Copyright Act | Freedom of Expression
June 09, 2005
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Crawford on Utah Anti-Censorship Lawsuit
After a brief hiatus, Prof. Susan Crawford is back blogging with praise for the complaint in the lawsuit that the Utah ACLU and CDT are bringing against a state censorship law (Step Away From the Censorship Button). Though she thinks the law is clearly unconstitutional, Crawford is concerned with the ongoing drumbeat for censorship: We live in an age of litmus tests and anger. Facts don't mean as much as they should these days, particularly when it comes to facts about the internet. Huge industries and incumbents of all kinds seem easily able to ignore fine arguments and good lawyering, and sometimes courts are willing to go along when the issues are particularly salacious. Here, Utah law enforcement authorities and politicians looking for re-election can say something like, "What do you mean, we can't protect our children? What do you mean, we can't make a local law about a communications medium that our citizens access? Of course we've got community values. We have community values that regulate the width of our sidewalks and the quietness of our neighborhoods. Are you telling us that we can't say anything about those values when it comes to the internet? What's so magical about the internet?" Read the 55-page complaint: King's English v. Mark Shurtleff [PDF].
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The Real Reason Apple is Suing Rumor Sites?
Ed Foster's Gripe Log makes a reasonable case that Apple went after the online journalists in Apple v. Does in order to frighten them away from the Apple+Intel story (Did Apple Sue the Rumor Blogs to Keep Intel Deal Quiet?). Others have made this case, but Foster puts it together well: Apple's legal crusade against the press over the last six months has struck many observers as being a little too Big Brotherish even for a control freak like Steve Jobs. Why would any company want to adopt such strong-arm tactics against loyal fans whose only crime was to care enough about Apple's products to want to report the rumors they heard about them? It made even less sense when, in one of the cases, Apple tried to get the courts to enforce a subpoena allowing them access data from a reporter's ISP in the hopes of determining who his sources were. That was guaranteed to raise hackles not just in the press but also with a broader contingent of privacy and freedom of speech advocates. And Apple was bringing all this opprobrium down on its head supposedly for the sake of smoking out the sources who'd tipped off the weblogs on a couple of less-than-earthshaking stories. Not only did it strain credulity that Apple would care that much about the reports of a sub-$500 Mac and a FireWire audio device, court filings subsequently made it obvious that Apple had not bothered to conduct a serious investigation of the employees who were the most likely suspects. So while willing to argue the First Amendment should be trashed to allow them to apprehend the dastardly fiends who might have violated their non-disclosure agreements, Apple didn't really seem that interested in actually unmasking them. If true, this means we are even more unlikely to see a lawsuit against C|Net News ( Apple + Intel: Where's the Lawsuit Against C|Net?).
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Utah ACLU Takes On Yet Another Anti-Porn Law
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Three Anti-Cable Censorship Op-Eds
Jeff Jarvis has been following the ongoing indecency debate closely and has provided a wealth of links on the subject in recent days. Here are a few:
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June 08, 2005
Posted by Ernest Miller
Prof. Michael Madison notes the appointment of Janice Brown to the DC Circuit Court of Appeals bench (CNN: Senate Confirms Brown to Federal Judicial Post), and one of her opinions that copyfighters would be interested in (Janice Brown Confirmed). The case he cites is Intel v. Hamidi, in which Brown dissented from a majority ruling holding that Intel could not prevent a former employee from sending mass emails to current Intel employees. Her dissent shows quite the fondness for property metaphors: Those who have contempt for grubby commerce and reverence for the rarified heights of intellectual discourse may applaud today's decision, but even the flow of ideas will be curtailed if the right to exclude is denied. As the Napster controversy revealed, creative individuals will be less inclined to develop intellectual property if they cannot limit the terms of its transmission. Similarly, if online newspapers cannot charge for access, they will be unable to pay the journalists and editorialists who generate ideas for public consumption.
This connection between the property right to objects and the property right to ideas and speech is not novel. James Madison observed, "a man's land, or merchandize, or money is called his property." (Madison, Property, Nat. Gazette (Mar. 27, 1792), reprinted in The Papers of James Madison (Rutland et al. edits., 1983) p. 266, quoted in McGinnis, The Once and Future Property- Based Vision of the First Amendment (1996) 63 U. Chi. L.Rev. 49, 65.) Likewise, "a man has a property in his opinions and the free communication of them." (Ibid.) Accordingly, "freedom of speech and property rights were seen simply as different aspects of an indivisible concept of liberty." (Id. at p. 63.)
The principles of both personal liberty and social utility should counsel us to usher the common law of property into the digital age. Yeah, free speech is exactly like a property right. Sure.
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+ TrackBacks (0) | Category: Copyright | Freedom of Expression
June 07, 2005
Posted by Ernest Miller
The Center for Democracy and Technology has released a report today arguing on behalf of a balanced approach to copyright enforcement, a carrot and stick (CDT Proposes Balanced Framework for Online Copyright Protection). via Constitutional Code, which has many worthwhile comments
Read the 14-page report: Protecting Copyright and Internet Values: A Balanced Path Forward: Version 1.0 Spring 2005 [PDF].
Note: I've long favored the carrot and stick approach. See this interview with GrepLaw in September, 2003 (Ernest Miller on DRM, Privacy and Hemingway). (You know, I think my answers stand up to the test of time pretty well.)
However, I think the CDT report favors the stick a bit much, treats citizen/creators as mere consumers, doesn't consider structural reform of copyright law, and doesn't provide much in the way of a carrot, among other flaws.
Read on for a more detailed take on the report...
...continue reading.
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+ TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | INDUCE Act
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Who Leaked the Apple+Intel News?
posted by Ernest Miller |
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Violence in Videogames: A Debate
posted by Ernest Miller |
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Posted by Ernest Miller
My friend, Prof. Beth Noveck, has written (not for the first time) about the need for a progressive political agenda with regard to cyberlaw on her Cairns Blog (Positive Cyber-Progressivism). I say "as usual" not because I am playing social critic again but because cyberlaw so predictably tends to focus on negative liberty rather than positive rights. In other words, how can I be free from abuse? Free from constraint? Free from censorship? This reactive stance has characterized cyberlaw for the last decade of its existence. Our agenda is full with staving off excesses of intellectual property "protection" and privacy-violating snoops. Far too little attention is paid to positive prescriptions. How can we use law and technology to enable greater innovation, creativity, productvity and freedom? Being free from the law and free from intrusive code is not the only way to deepen human happiness. Rather, the legal code as well as software code -- designed right -- can promote the same shared values. Part of this is, of course, because even negative liberty has been under constant attack for the past decade. We copyfighters have barely fought off things like the INDUCE Act and Broadcast Flag, which doesn't leave much time for focusing on positive goals.
Which isn't to say that there haven't been a number of positive goals put forward. In the copyright realm there have been several alternative compensation schemes for filesharing put forth, from prominent law professors (Neil Netanel and William Fisher among others) and organizations such as EFF. I keep deluding myself that it's all about the distribution, and copyright reform should follow along those lines, most recently: A Reply to Dennis Kennedy, Michael Madison and Marty Schwimmer on iPods, Distribution and Copyright. Larry Lessig has called for shorter terms and a return to some copyright formality. There are other examples. Unfortunately, however, none has really caught on for a variety of reasons, not least that there is much disagreement.
And, actually, I'm not even sure what "negative liberty" means in the context of copyright law. Most copyfighters, myself included, are intent on finding the right level of copyright, not freeing us from it entirely. That seems to me a very progressive goal itself.
The main problem, I think, is that most people really don't care about copyright; they don't realize how important to a democratic culture it is. We don't lack for potential progressive prescriptions. We lack agreement on them and we lack the marketing.
The issue of free speech, which Beth also raises, is also an interesting one. Free speech is a funny sort of negative liberty. It is a negative liberty that is, in part, justified by its positive purposes. According to Mill, the best way to approach truth is by allowing, almost encouraging, error. Accepted truths will be strengthened through battle with error. Error will be overthrown by truth. And, as is most likely the case, both sides have a little bit of truth to them and we move to a better synthesis. Free speech may be a negative liberty we cherish, but even were it not, it would be a progressive policy goal.
Be that as it may, there are also a number of progressive free speech policies out there - particularly for what I call "freedom of the press", the role of government in regulating distribution of information. For example, there are those who want stricter control over media ownership and claim a progressive mantle. I disagree with them (as I disagree with Netanel and Fisher), but it is a positive platform. There are many in the copyfight who argue for open access and open standards in order to free distribution. This seems to me a positive, progressive goal. Unfortunately, these two groups seems somewhat opposed and, among other reasons, very little is accomplished along these lines.
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+ TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | News
June 06, 2005
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Fair Use and the DVD Fan Audio Commentary
JD Lasica continues his Darknet mini-book, with an excerpt about a home-authored DVD featuring copyrighted work and original audio commentary (Story: Fair Use in a Digital Age). This is actually very close to one of my favorite concepts for annotation. Buy the Casablanca DVD and then download Roger Ebert's (or similar expert) audio commentary. Of course, the DMCA makes this extraordinarily difficult. And, did I mention this excerpt quotes yours truly?
posted by Ernest Miller |
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Posted by Ernest Miller
I meant to blog about this last week, but Eugene Volokh noted a rather ominous comment to the FEC from the director of the Institute for Politics, Democracy and the Internet at George Washington University (Political Activist (Bad) or Journalist (Good)?). From the director's comment: Until recently, the distinction between the news media and rest of us was clear and uncontroversial. Bloggers blur that distinction. If anyone can publish a blog, and if bloggers are treated as journalists, then we can all become journalists. If millions of citizen journalists, as bloggers like to call themselves, are given the rights and privileges of the news media, two consequences will follow. Well, yeah. Of course, the director wants to distinguish between blogger/journalists and blogger/activists. Volokh links to the best response ( Common Sense): Dear FEC,
I write to you today to request your kind advisory as to whether this pamphlet defines me as an ACTIVIST or a JOURNALIST. . . .
Sincerely,
Thomas Paine In a later post, Volokh also makes a point about the exemption that the media receives ( Media Rights, Not Journalists' Rights): But while "journalist" is sometimes used to refer to people who are (ostensibly) nonpartisan and impartial, neither the federal election law media exception nor the anonymous source privilege is so limited. Federal election law exempts from various regulations and prohibitions "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication." Both nonpartisan news stories and opinionated editorials (including ones that endorse candidates) are protected. Both newspapers that strive to maintain maximum objectivity and magazines that overtly and consistently advocate a particular ideology are protected. Likewise, privileges to conceal the names of anonymous sources don't turn on whether the claimant writes opinionated pieces or objective ones. Gee, one wonders why the opinion pages of commercial newspapers should be priviledged when they endorse candidates, but not bloggers. What a strange vision of the First Amendment that must be.
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California's Anti-Violent Videogame Bill Stalls
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June 05, 2005
Posted by Ernest Miller
Late Friday afternoon, C|Net News published an extremely valuable trade secret about Apple and Intel, days before Apple was scheduled to announce it (Apple to Ditch IBM, Switch to Intel Chips). So, where's the friggin' lawsuit against C|Net to find out who leaked? Where is the judge who is going to claim that what C|Net published was "stolen property"?
Will someone please explain to me the difference between what C|Net has done and what happened in Apple v. Does?
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Posted by Ernest Miller
Jay Rosen has written another of his insightful pieces on the state of modern journalism, today finding the connections between J-School reform and the press mythology of Watergate (Deep Throat, J-School and Newsroom Religion). Read the whole thing, but the following passage was particularly striking to me: In his excellent book, Watergate and American Memory (1992, Basic) Michael Schudson distinguishes between the scandal, which didn't change the world very much, and the myth of Watergate in journalism. It did change journalism by giving the warrant of history (and the mandate of heaven) to the adversarial press and the Fourth Estate model, where the press is an essential check on government, a modern addition to the balance of powers. In many ways, this gets to the heart of the problems with the ways that the mass institutional press views itself. The picture the mass institutional press has of itself is that of the Fourth Estate, another branch of the governing structure, albeit unelected. They are adversarial because they seek to check and balance the other powers, which, presumably, do not represent the interests of the people. The mass institutional press has arrogated unto itself the voice of the absent people.
Much of this comes, I think, from a fundamental misunderstanding of "freedom of speech, or of the press".
Let me make this clear:
The interests and purposes of the First Amendment are not identical with the interests and purposes of the mass institutional press. For the purposes of the First Amendment, the mass institutional press is sometimes a means, not an end.
Freedom of speech and of the press is the principle; the mass institutional press is merely one expression of this principle and, as we are learning, is a historically contingent and flawed one at that. The error has come in thinking that the mass institutional press is the only possible means for expressing this principle, and that what the mass institutional press expresses is also an expression of this principle.
This wouldn't be so bad, if the mass institutional press hadn't gotten the underlying principle so darn wrong. Deans of Journalism, scribble a note: Investigative reporting, exposing public corruption, and carrying the mantle of the downtrodden were taught to McGrath not as political acts in themselves--which they are--and not as a continuation of the progressive movement of the 1920s, in which the cleansing light of publicity was a weapon of reform--which they are--but just as a way of being idealistic, a non-political truthteller in the job of journalist. (Which is bunk.) [emphasis in original] These two means are expressions of the interests and purposes of the First Amendment, though I would not emphasize that the cleansing light of publicity is not only part of the progressive movement of the 1920s. Political is not synonymous with partisan.
There are other purposes of free speech, but clearly, one of the most important is that of persuasion in service to what we can know of truth. This is inevitably, if not definitionally political. However, the mass institutional press eschews persuasion for a recitation of facts and "he said, she said," in order to avoid persusasion and, thus they think, politics. But gathering and organizing facts is still a persuasive and political act. It is fairly explicit when exposing public corruption. And it exists even in "he said, she said" reporting when it gives one implausible argument greater weight through equal stature with the superior argument. This is particularly insidious in its effects upon the journalists themselves, who seek only arguments on both sides of an issue, rather than the persuasive arguments, and may thus eventually become blind to the difference.
The biggest blindness was, of course, to the reality that fact-gathering and reporting are inevitably political. And, thus, This kind of instruction is guaranteed to leave future journalists baffled by the culture wars, and in fact the press has been baffled to find that it has political opponents. Well, jeez louise, so did the progressives of the 1920s! As far as the religion knows, none of this is happening. And J-schools--by passing the faith along but making little room for non-believers--are part of the problem. And so, at least partly, the mass institutional press comes to its present crisis. And what is the solution? But maybe it should be crashed. Maybe what we need is not funding for a new church, but a breakaway church, or two, or three of them. (And what is Fox News Channel, but that?) Well, actually, Fox News is a bunch of recreants. They still worship in the church of objectivity, but that is only lip service.
But why new churches? Tear down the church and let a diversity of schools of thought bloom.
UPDATE 2300 PT
Jay Rosen has updated the paragraph I cited above. Here is the new version: In his excellent book, Watergate and American Memory (1992, Basic) Michael Schudson distinguishes between the scandal, which didn't change the world very much, and the myth of Watergate in journalism. By giving the warrant of history, and the mandate of heaven, to the adversarial press, and the Fourth Estate model (where the press is an essential check on government, a modern addition to the balance of powers); by telling each new crop of journalists how to be heroes and how do good; by glamorizing the underworld of confidential sources, the mythos of Watergate had very definite effects in journalism.
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June 03, 2005
Posted by Ernest Miller
Everyone has commented on the initial reports concerning the new ".xxx" top level domain approved by ICANN. For example, see my initial post (ICANN Approves '.xxx' Top Level Domain). However, there is more to learn as the decision is analyzed.
Of course, those behind the domain are very concerned with the free speech issues involved. They've even brought well-known First Amendment attorney Robert Corn-Revere onboard as retained counsel. In a post to the ICANN ".xxx" thread, he defends the .xxx domain from charges that it will be made mandatory in the US (Legal Protections for the Voluntary Nature of the .xxx Domain). But if the U.S. government tried to require use of a .xxx address by designated entities, such a regulatory scheme would likely be found to be unconstitutional. Ok, so it would be unconstitutional to mandate use of ".xxx" in the US. But would it be unconstitutional to require libraries and schools to block access to ".xxx" on pain of not getting federal funds so long as a patron can view .xxx domains |