About this Author
Ernest Miller 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 @

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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

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Category Archives

« File Sharing | Freedom of Expression | Games »

July 13, 2005

July 02, 2005

June 29, 2005

June 25, 2005

June 24, 2005

Grokster + Brand X = Issues of Openness? It's All About the Distribution, Baby!

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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 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.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | Open Access | Telecomm

June 23, 2005

June 22, 2005

June 21, 2005

June 20, 2005

June 17, 2005

Microsoft on Chinese Censorship: We Censor in the US Too!

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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.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression | Rating and Filtering

June 15, 2005

Yesterday Was Flag Day, Today is Anti-Flag Burning Amendment Day

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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

Comments (1) + TrackBacks (0) | Category: Freedom of Expression

June 14, 2005

Podcasting and Profanity

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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 ...

Comments (2) + TrackBacks (0) | Category: Broadcatching/Podcasting | Freedom of Expression | Rating and Filtering

EFF's Legal Guide for Bloggers

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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: liberty_waits_ad.png

More from Copyfight: Do You Know Your Rights?

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression

Gov't Support for Media Discussed

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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.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Telecomm

June 13, 2005

Even Copyright Infringing Spammers Deserve Free Speech Protections

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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 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).

Please see the comments for a continued debate.

Comments (13) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Freedom of Expression

June 10, 2005

Raff Videoblogs an FCC Indecency Decision

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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!

Comments (0) + TrackBacks (0) | Category: Digital Millennium Copyright Act | Freedom of Expression

June 09, 2005

June 08, 2005

Janice Brown Appointed to DC Circuit Court of Appeals

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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.

Comments (1) + TrackBacks (0) | Category: Copyright | Freedom of Expression

June 07, 2005

CDT's 'Balanced Framework' for Copyright Completely Unbalanced

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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.

Comments (3) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | INDUCE Act

In Search Of: A Positive Agenda for the Copyfight

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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.

Comments (1) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Network Law | News

June 06, 2005

Newspaper Opinion = Protected: Blogger Opinion = Activism, Not Protected

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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. . . .

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.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression

June 05, 2005

Apple + Intel: Where's the Lawsuit Against C|Net?

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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?

Comments (41) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression

Journalism's Coming Age of Enlightenment

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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.


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.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression | Journalism | Network Law

June 03, 2005

ICANN Doesn't Censor, Governments Do

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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 by asking specific permission? Properly drafted, probably not, following US v. ALA, the CIPA case.

Well, that wouldn't be too bad, would it?

Requiring websites to adopt the .xxx domain might be illegal in the US, but other nations *cough*China*cough* are not so legally restrained. If China, or another nation, decides to require certain websites to use the .xxx domain there is little that Corn-Revere will be able to do. Not a big deal? Well, if you're in a US library, suddenly you might not be able to access such a website. You could ask for specific permission, but you might not even know the site exists due to the filtering. And try sending email from a .xxx domain. Furthermore, the content of the site would be tarnished by its association with .xxx.

China's censors are experts at their work. If they can use .xxx to make their censorship more effective both internally and externally, they will.

Remember, poorly thought out changes to the registry system don't censor, governments do. It won't be their fault, let them assure you.

via Infothought

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Internet | Rating and Filtering

June 01, 2005

May 30, 2005

FCC's Violence Report Likely Months Away

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Posted by Ernest Miller

The LA Times (reg. req.) provides a bit of an update and reminder of the violence study that the FCC launched almost a year ago (Broadcast Violence Gets New Scrutiny). See also, (FCC Launches Inquiry Into Violence on Television). From the LA Times:

FCC Commissioner Michael J. Copps, a Democrat who has championed indecency crackdowns, said he believed that some kind of government or industry intervention was needed to control violent programming.

"Like indecency, I think there is a role for all of us to play," Copps said. "We've got 60 years of studies, most of which conclude there is a connection between violent behavior and violence in the media."

Gee, I wonder what is decision regarding the report will be?
But experts say the government faces an uphill battle because violence is difficult to define and because of free speech protections.
Indecency is just as difficult to define, but that hasn't stopped the FCC from doing so. From the FCC: Parent's Place: Obscene and Indecent Broadcasts:
The FCC has defined broadcast indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities."
Would it really be so difficult to define excessively violent programming at least that vaguely? Here, I'll give it a try: Excessively violent programming is material that, in context, depicts, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, violent force or injury. If the indecency regs aren't vague, I'm not sure why a similar violence reg would be. If that won't work, why not a nuisance rationale, as in the regulations on profane speech:
Profane material is defined as including language that denotes certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.
Some of that violence on the TeeVee is so grossly offensive that I consider it a nuisance. Is that good enough? And the FCC has it on good authority that an appeals court upheld the profane language regulations in the early 1970s (FCC Revives Notion of the Profane).

Back to the LA Times:

The FCC staff has begun drafting a response and is expected to weigh whether to urge the industry to police itself more vigorously, recommend a greater reliance on electronic program blocking technology or seek new authority from Congress to regulate violent content.
Gee, urge the industry to police itself more vigorously? Under this FCC Chairman? Yeah, right. Recommending a greater reliance on electronic program blocking technology would be an interesting approach, too bad it would undermine the FCC's attack on indecent programming. Will they really argue that the technology is sufficient to block out violence in this report and then turn around in court and argue that the technology isn't sufficient to protect against sexual imagery? I, for one, would like to see them try.

As for seeking new authority, doesn't this FCC think they've got all the authority in the world? It would be as easy as defining indecency to include violence. After all, some depictions of violence are indecent and recall that the statute providing the FCC authority regulate indecency was passed in 1934. An originalist understanding would no doubt conclude that some of today's violent programming would have been considered indecent back then.

Of course, one thing they would have to seek new authority for is the ability to regulate cable and satellite. Note that the FCC's study is to look into the violence on other distribution channels as well.

A final report is likely to be delayed several months until new FCC Chairman Kevin J. Martin appoints a permanent head of the agency's media bureau.
Someone who, likely, won't shy away from the censor's mantle.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression

May 29, 2005

May 28, 2005

The Internet Routes Around Censorship, Even in France

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Posted by Ernest Miller

Yes, yes, I know, that saying has many flaws. Still, sometimes these is a bit of truth to it.

Brother Dana Blankenhorn notes a report from the BBC News on the role the internet is playing on the EU vote in France (One for the Web?). Read the BBC article: French Media in Referendum 'Bias' Row).

The main point of the article is that conventional media heavily favors a "yes" vote on the EU referendum, yet the public currently favors "no".

A group of journalists from French state TV and radio are so angered by what they see as one-sided propaganda campaign being broadcast on the airwaves on behalf of the government and the "Yes" campaign that they have set up an online petition, signed by more than 15,000 people since 1 May.
Not only is the traditional media heavily in favor, but the two major parties are also in favor, effectively silencing traditional campaigns on behalf of "no".
Because both the centre-right ruling UMP and the opposition Socialist party are campaigning for a "yes" vote, their dissident MPs have no official party platform for their campaigns against the constitution from which to explain why they believe the Treaty is flawed.
So, the "no" supporters have turned to the internet.
In cyberspace, a whole range of opinions - individual or on behalf of trade unions and anti-globalists group such as ATTAC - can be freely accessed, while "No" campaigners appear much more at ease with the Internet than the traditional party campaigners....

In response, the "Yes" campaign has started its own internet sites, but they are a lot more official and rather less imaginitive, though some MPs have now started their own blogs.

Gee, I wonder if the fact that the traditional bureaucracy is so sclerotic and unable to handle new media that is part of the reason people favor "no"?

Comments (1) + TrackBacks (0) | Category: Freedom of Expression

May 27, 2005

Exec. Dir. of Biblical Literacy Project Responds

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Posted by Ernest Miller

Earlier today, I wrote about David Gelernter's op-ed arguing for teaching the Bible in public schools (Gelernter Advocates Teaching the Bible as Literature: Good Idea, Too Bad That's Not What He Really Intends). I suggested that although there are good secular arguments in favor of teaching the Bible, I fear that there are ulterior religious motives for doing so. In any case, I've received an email from Sarah Jenislawski, executive director for the Bible Literacy Project, which "is a non-partisan, non-profit endeavor to encourage and facilitate the academic study of the Bible in public schools. Founded in 2001 by Chuck Stetson, we believe that failure to teach about the Bible leaves students in ignorance and cultural illiteracy."

Read on for Jenislawski's letter and my reply ...

...continue reading.

Comments (4) + TrackBacks (0) | Category: Freedom of Expression

The Opening of the Frontier

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Posted by Ernest Miller

Ben Compaine, author of Who Owns the Media?, analogizes citizens media to the frontier, as in Frederick Jackson Turner's The Frontier In American History (Peercasting as the New Western Frontier).

[I]n 1893 [Turner] presented his view that the key component to the unique American character of democracy was the settlement of the American West. That is, the availability of vast stretches of free land away from the initial settlements of the East Coast provided a safety value for those who were dissatisfied with their circumstances. The seemingly endless western frontier offered anyone an opportunity to acquire a farm and become an independent member of society. Free land thus tended to relieve poverty in the Eastern cities while on the frontier it fostered greater economic equality.

What does this have to do with the media? Here’s what: Though it may be a tad premature, in the equally unlimited expanses of information available through the Internet and its related ecosystem I see the makings of a similar safety value for expression and communication. Today it is Blogs, Live365 streaming radio and Podcasts. Tomorrow it is likely to be the video version of streaming radio and Vodcasting [PDF]. Better than a soapbox at Hyde Park Corner, reaching further than leaflets handed out in Times Square, more user-controlled than letters to the editor, “peercasting” may be for the Information Age what free land was for the late Agricultural/early Industrial Age....

Most Americans did not head West, though all knew that they could. The free land of the American West enabled those who were most motivated and most dissatisfied with the opportunities where they were to have hope. They did not see themselves as being stuck. Not every city slicker who headed West prospered. But it was the opportunity that helped shape them and the spirit of this country for over two centuries. And today’s dissatified or motivated knew that, for the first time, they too will be heard.

Blogging and podding and vodding or whatever else these formats might be called should not be viewed as a veneer or a Potemkin Village of phantom access to the world stage. The move to the Western frontier was real. Similarly this digital outlet that gives voice to the leafleteer, corner orator or anyone with a point of view or a story to be told is real and meaningful. We saw in Howard Dean’s meteoric rise the power of the Internet is getting the word out and in raising money. It happened for the most part under the radar of the mainstream media.

In the next decades peercasting will be become the norm to one degree or another. It will not replace mass media but will add a significant dimension to what and how the media is viewed. And, I believe, peercasting will have an overall positive effect on the American -- and no reason why not the rest of the world’s – experience with the expanded boundaries of this new frontier. I think that’s how Frederick Jackson Turner would describe it.


I've copied a significant chunk of Compaine's posting (go read the rest!) because I think he has really hit on something important. There is really a lot going on here, just as there was in Turner's original frontier thesis.

We've often heard the internet analogized to the Wild West, but I've never really liked the metaphor of place. In many ways, I think it is misleading. Here, I believe, is the better metaphor: frontier. A frontier isn't a place, it is a process. Ever-changing, ever-growing, never tamed, the frontier is always just at the edge of "civilization". You can't pin down the frontier because as soon as you do, it has moved on.

The American frontier shaped people and institutions; it formulated a unique American character. I think citizens media may do something similar, though this time it won't be as restricted geographically. What changes, if any, might this new frontier have on the American character? How might the concept of "frontier" impact other nations?

If the internet is a frontier, it is an incredibly fast moving one. Where parts of the American frontier took years to settle, internet frontiers are settled much quicker. What effect does this have on the frontier thesis?

By the time Turner wrote his famous thesis, the frontier had officially closed. Will an electronic frontier close? How might we seek to prevent it?

Does the open source movement also play a role in this frontier? I would think so, yes.

Lots of questions, I know, but I now have a lot to think about and chew over. I leave this post with a passage Turner quoted from Peck's New Guide to the West:

Generally, in all the western settlements, three classes, like the waves of the ocean, have rolled one after the other. First comes the pioneer, who depends for the subsistence of his family chiefly upon the natural growth of vegetation, called the "range," and the proceeds of hunting. His implements of agriculture are rude, chiefly of his own make, and his efforts directed mainly to a crop of corn and a "truck patch." The last is a rude garden for growing cabbage, beans, corn for roasting ears, cucumbers, and potatoes. A log cabin, and, occasionally, a stable and corn-crib, and a field of a dozen acres, the timber girdled or "deadened," and fenced, are enough for his occupancy. It is quite immaterial whether he ever becomes the owner of the soil. He is the occupant for the time being, pays no rent, and feels as independent as the " lord of the manor." With a horse, cow, and one or two breeders of swine, he strikes into the woods with his family, and becomes the founder of a new county, or perhaps state. He builds his cabin, gathers around him a few other families of similar tastes and habits, and occupies till the range is somewhat subdued, and hunting a little precarious, or, which is more frequently the case, till the neighbors crowd around, roads, bridges, and fields annoy him, and he lacks elbow room. The preëmption law enables him to dispose of his cabin and cornfield to the next class of emigrants; and, to employ his own figures, he "breaks for the high timber," "clears out for the New Purchase," or migrates to Arkansas or Texas, to work the same process over.

The next class of emigrants purchase the lands, add field to field, clear out the roads, throw rough bridges over the streams, put up hewn log houses with glass windows and brick or stone chimneys, occasionally plant orchards, build mills, school-houses, court-houses, etc., and exhibit the picture and forms of plain, frugal, civilized life.

Another wave rolls on. The men of capital and enterprise come. The settler is ready to sell out and take the advantage of the rise in property, push farther into the interior and become, himself, a man of capital and enterprise in turn. The small village rises to a spacious town or city; substantial edifices of brick, extensive fields, orchards, gardens, colleges, and churches are seen. Broad-cloths, silks, leghorns, crepes, and all the refinements, luxuries, elegancies, frivolities, and fashions are in vogue. Thus wave after wave is rolling westward; the real Eldorado is still farther on.

A portion of the two first classes remain stationary amidst the general movement, improve their habits and condition, and rise in the scale of society.


Comments (10) + TrackBacks (0) | Category: Blogging and Journalism | Broadcatching/Podcasting | Culture | Freedom of Expression | Internet | Journalism | Network Law

Gelernter Advocates Teaching the Bible as Literature: Good Idea, Too Bad That's Not What He Really Intends

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Posted by Ernest Miller

In the LA Times (reg. req.), computer science professor and conservative commentator David Gelernter argues that the Bible should be taught in public schools (Why the Bible Belongs in America's Public Schools). He makes the standard arguments that it is important to know the Bible in order to understand American history and literature. He's absolutely right. He's also right that it would be perfectly constitutional to teach the Bible in public schools as literature. In fact, I agree that we should teach the Bible as literature in the public schools. Indeed, I've recently been studying the Bible as literature myself.

The problem is, however, that I think it unlikely that the "Bible as literature" would long remain that way. It is a struggle already to keep certain states from bringing in supernatural/mystical explanations for ecological diversity; how hard would it be to police the inevitable corruption of "Bible as literature" courses?

Teaching the Bible as literature is secular. However, Gelernter himself betrays that what he really wants is religious teaching in schools, not secular teaching.

And let's not be coy about the underlying cultural context. Bible-reading used to be routine in public schools. [Michael] Novak again: "Beginning about 1948, one Supreme Court case after another turned the judiciary (and the law schools) into aggressive enemies of religion in public life." The Bible began to seem tainted no matter how you planned to teach it.
Well, Bible-reading used to be routine, but it certainly wasn't secular. It was done in a religious context. The Supreme Court wasn't banning "Bible as literature" courses, but Bible as faintly camouflaged religious indoctrination. To characterize the courts as "enemies of religion" makes sense only if you intend to teach the Bible as religious document, not as secular literature.

Gelernter finishes his op-ed with this:

The great thundering secularist tide that swept the Bible out of public school education is about to turn. Tides always do. Odessa is a portent.
Once again, if you're teaching the Bible as literature, what you are doing is secular. If the Bible is being taught in a secular manner, how is it that the secularist tide will be turning? Wouldn't the secularist tide be rising higher? If not, it would be because religious teaching was being brought into the school.

As for citing Odessa, Texas as a sign of the shifting tide, what a surprise that such a conservative and religious community would make such a choice. The effort in Odessa was spearheaded by the National Council On Bible Curriculum In Public Schools, which states on the front page of their website that:

The world is watching to see if we will be motivated to impact our culture, to deal with the moral crises in our society, and reclaim our families and children.
And how, exactly, is a simple literature course supposed to do all that?

Comments (4) + TrackBacks (0) | Category: Evolution | Freedom of Expression

May 26, 2005

Schools Required to Teach About the Constitution on Sept. 17

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Posted by Ernest Miller

As someone who thinks children should recite the Preamble to the Constitution of the United States of America instead of the Pledge of Allegiance every morning in school (True Patriots Recite the Preamble), the news that federal law now requires all schools receiving federal funds to teach the US Constitution on the anniversary of its signing, Sept. 17, doesn't really bother me (Schools Required to Teach Constitution on Sept. 17).

Read the Notice of Implementation of Constitution Day and Citizenship Day on September 17 of Each Year.

Frankly, I think kids need a lot more familiarity with the Constitution. While the requirement that colleges have to teach it is absurd, I find myself actually in agreement that lower schools teach it. I find some of the opposition a bit ridiculous:

“You may have to leap from the Civil War or Vietnam to the Constitution,” Fuller said. “Local schools cover the Constitution, and they’ve been doing it for a long time. We don’t need the federal micromanagement. Congress has been acting more like a school board.”
If you can't find some relevant Constitutional teaching in the Civil War or Vietnam, you aren't even trying. Yes, it is a burden. And, yes, we don't want the federal government micromanaging education. But if there is one thing the government should insist be taught, it is the Constitution. I can think of no other thing that is more important in public school than the fundamentals of citizenship, and the fundamentals of citizenship are found in the Constitution.

Putting one day aside to teach the Constitution, thus emphasizing its importance seems worth it to me.

via LIS News

Comments (1) + TrackBacks (1) | Category: Freedom of Expression

May 25, 2005

The Annotated AB450 - California's Latest Anti-Violent Videogame Bill is the Most Poorly Written Legislation I've Seen in a Long Time

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Posted by Ernest Miller

Once more into the censorship breach my friends. Once again it is the California Assembly that is seeking to require the labeling of violent videogames and restrict their sale to minors, see, AB450. The bill is scheduled to be considered next week. The Int'l Game Developers Assoc. is asking for citizens to write their state representatives in opposition to the bill (AB450 Letter).

You know, one of the things that I don't like about this bill is not only is it anti-free speech, but it is incredibly poorly drafted. It is like adding insult to injury. Geez.

As I've done before, another obsessively annotated look at this farcical (and free speech attacking) bill...

...continue reading.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression | Games

May 24, 2005

Building the Bottom Up from the Top Down

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Posted by Ernest Miller

Prof. Michael Froomkin has published the introduction and final section of the conference draft of "Building the Bottom Up from the Top Down," a paper that he'll be giving at a seminar in Paris this weekend. As the title implies, Froomkin is looking at what top-down orgainzations, particularly governments, can do in order to stimulate bottom-up self-organization:

The government's role should be facilitative yet entirely content-neutral. Even ostensibly non-political rules such as one that limited subsidies to non-political activities should be avoided. Human time and energy is limited. thus, even if one could craft a program that had no class-based discrimination, any rule subsidizing gardening but not community organizing would inevitably cause a shift of time and energy away from politics towards the subsidized activities. If, as Habermas persuasively argues, public engagement is already too weak then it makes no sense to discriminate against it.

Thus, the state's ideal role is primarily in creating a climate in which groups can form, and resources that they can use to organize themselves, govern themselves, and achieve their aims. Given the speed at which communities such as Slashdot (with more than half a million members) and the so-called blogisphere are forming, much may be achievable without much in the way of direct state intervention. There are, nonetheless, some areas where government action would be helpful and appropriate.

Froomkin seeks comments here: Building the Bottom Up from the Top Down.

Read the whole thing.

Comments (0) + TrackBacks (0) | Category: Culture | Freedom of Expression | Internet | Network Law | Open Access

May 23, 2005

May 17, 2005

Freedom of Expression: Thank Skywalker!

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Posted by Ernest Miller

Star Wars Last Supper
With all the violence in the world due to religious fervor, sometimes it is nice to remember that, here in the US, one can blaspheme all they want and we don't have riots in the street. We take it for granted, but we shouldn't.

Large version of the image: Star Wars Last Supper

via Dowbrigade News

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Freedom of Expression

Hypocritical Tabloid Publisher Fails to Silence Former Employee

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Posted by Ernest Miller

Ah, irony. American Media, Inc., publisher of such infamous tabloids as the National Engquirer and the Weekly World News, sued Stephanie Green, a former fact-checker for Star Magazine, because she intends to publish a fictional account of life at a tabloid magazine, Dishalicious. The lawsuit was foiled recently when the judge wouldn't permit discovery of the manuscript, which it was claimed violated the confidentiality agreement signed by Green as an employee.

Media Law Prof Blog has the order and a nice summary (American Media Loses in Attempt to Obtain Manuscript From Former Employee). Read the 10-page pre-trial discovery order: American Media, Inc. v. Stephanie Green [PDF].

Apparently, confidentiality agreements, at least in New York,

will be enforced only "if reasonably limited temporally and geographically, and to the extent necessary to protect the employer's use of trade secrets and confidential information.".... In this case, the Confidentiality Agreement cannot be enforced to prevent Green from using her observations regarding employees and supervisors at the Star, to write a fictional account since such information does not qualify as a trade secret, and is not otherwise entitled to confidentiality.[citations omitted]
Good policy, but I just find it extremely humorous that American Media would seek to uphold such a confidentiality agreement since they undoubtedly get so much of the information they publish from people who violate similar confidentiality agreements. One sample of the confidentiality agreement:
[Green would] not write, speak or give interview, either directly or indirectly, on or off the record about your work at [AMI] including without limitation facts and information you have learned during your employment at [AMI] and about [your] assignements, for purposes of publication in any media in any way, directly or indirectly, without prior approval of [AMI].

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UCONN Survey on Freedom of the Press

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Posted by Ernest Miller

Yesterday, the Department of Public Policy at the Univ. of Connecticut released a national study on press freedom in the US, surveying both journalists and the general public. See, Washinton Times, Journalists, Public Know Little About Press Freedom.

Read the press release: Press Freedom in the U.S.: A National Survey of Journalists and the American Public [PDF].
Read the general population survey: Freedom of the Press Survey, General Population (2005) [PDF]
Read the journalist survey: Freedom of the Press Survey, Journalists (2005) [PDF]

I'm interested in the First Amendment, so I thought I would take a look. There are a number of interesting findings.

...continue reading.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Journalism

May 15, 2005

Gov't Censorship Spurs Copyright Infringement in China

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Posted by Ernest Miller

The LA Times (reg. req.) has a good look at some of the difficulties the MPAA faces in combatting copyright infringement in China (The Piracy Price Wars). The article discusses Time Warner's strategy of making legitimate DVDs available for as low as $2.65, which has difficulty competing with lower quality knockoffs that compress 5 movies onto a single disk for $0.60. However,

Price is not the only factor working against the big media companies. Timing is crucial too, and cultural sensitivities and bureaucracy can block or delay the official release of DVDs in China, giving pirates an opening.

Many popular American films and television shows, such as "Sex and the City," are censored in China, so they are available only from bootleggers. Government review procedures and red tape, meanwhile, can delay release times of approved movies.

On March 3, Warner filed an application for "Ocean's Twelve" and received an oral approval from a government official on April 4. But as of early May, Warner's office in Beijing still had not received the necessary signature from the Ministry of Culture just two blocks away.

The ministry, which has a staff of 50 who review foreign movies and music, would not comment on specific titles. But Chen Tong, director of the ministry's audio-visual movie section, said it was "complete nonsense" that government censorship played a decisive role in hurting sellers of legitimate DVDs. The Internet gives bootleggers an advantage, Chen said, and studios sometimes are the ones responsible for delays.

Warner, for its part, says it has no problem working with the government on censorship. [emphasis added]

Heh. And here I thought that Hollywood was committed to freedom of expression. I wonder if Hollywood will ever complain about censorship, which contributes to infringement, as much as they complain about P2P? Actually, I don't really wonder. It'll never happen. For Hollywood, freedom of expression is only valuable when there is profit to be made from it. Censorship becomes cool if it becomes more profitable.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression

May 13, 2005

Michigan Court of Appeals Returns to 1950s in Free Speech Ruling

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Posted by Ernest Miller

The Michigan Court of Appeals has declared that nudity on television, even during the safe harbor period, is a violation of Michigan law prohibiting indecent exposure and such laws do not violate the First Amendment. Detroit Free Press article: Joke-telling Genitals Don't Get Free-Speech Protection. Read the 10-page opinion here: People v. Timothy Bruce Huffman [PDF]. Perhaps one of the major cable casters could consider supporting a further appeal, else they may also end up facing prosecution in Michigan.

One segment of the defendant's public access cable show (cable, not broadcast), "included a three minute segment in which a flaccid penis and testicles marked with facial features was the only object within camera range. During this segment, a voice-over was heard identifying the penis character as “Dick Smart” and providing purportedly humorous commentary as if on behalf of the character. Only Dick Smart was shown on the videotape; the rest of the body that would otherwise be visible was shrouded with a cloth." The jokes were weak, the humor non-existent, sort of like Saturday Night Live, only with a visible penis.

Unfortunately, the court decision isn't particularly funny, either. This is a serious attack on the First Amendment.

...continue reading.

Comments (2) + TrackBacks (0) | Category: Freedom of Expression

May 12, 2005

No Sirius Please, We're Hyundai

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Posted by Ernest Miller

Inside Line reports that Hyundai has chosen XM Satellite Radio over competitor Sirius Satellite Radio at least in part because Sirius will host Howard Stern starting next year (Howard Stern "Sirius"-ly Turns Off Hyundai Customers):

John Krafcik, Hyundai vice president of product development and strategic planning, told Inside Line that executives were stunned by the number of "unprompted write-ins" on the survey that said customers were "not comfortable with programming from Stern."
Didn't anyone mention to the customers that, with the vast number of channels available via satellite radio, they didn't have to listen to Stern? Or that they could block his station? Has XM Radio sworn off any offensive content?

Now Hyundai can do whatever it wants. However, it is this sort of ridiculousness behind continued censorship by the FCC.

Comments (23) + TrackBacks (0) | Category: Freedom of Expression

May 11, 2005

May 10, 2005

May 03, 2005

Yahoo! Group Disappears Into the Ether ...

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Posted by Ernest Miller

SciFiNoir was a web community/discussion list formed on Yahoo! in December, 1999, and had nearly 500 members. It was a discussion list for speculative fiction topics ranging from Anime to Zardoz.

Last Friday, April 29th, this long running discussion list and its archives simply disappeared in the ether when Yahoo! cancelled the group's existence. No warning or reason was given, though the group speculates it was related to series of posts regarding the Star Trek/Pedophilia issue (LA Times Claim About Pedophiles Wrong).

Five years of posts, artwork, stories, etc., simply gone, apparently at the whim of Yahoo! What the heck is Yahoo! thinking? I can see reasons that posts and even entire groups would be eliminated, but shouldn't there be a little more care taken when such a decision to eliminate a long running group is made? Should the entire history of the discussion group just disappear? Shouldn't an offer be made to allow the group history to be archived somewhere else?

Sad, sad, sad.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression

May 02, 2005

Opening Networks to Censorship in Order to Keep Them Closed

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Posted by Ernest Miller

On Freedom to Tinker, Ed Felten discerns the real reason that mobile phone companies are looking into self-regulation with regard to indecent ringtones and what not (Mobile Network Providers Flirt with (Self-)Regulation). Felten is writing in response to this Reuters wirestory (Ratings System in Works for Wireless Content). As Felten rightly notes, this isn't about self-censorship due to fear of the FCC as much as it is about inviting regulation by the FCC in order to maintain the mobile phone networks as closed networks.

Comments (2) + TrackBacks (0) | Category: Freedom of Expression | Telecomm

April 05, 2005

Criminal Penalties for Indecency on Cable?

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Posted by Ernest Miller

Geez, this political posturing on broadcast and cable indecency is really getting tiresome. You want censorship? Pass some laws already. And, if you're serious, it is possible to draft constitutional censorship laws, assuming the Supreme Court doesn't reverse Pacifica.

Now we have Reuters reporting that a senior member of Congress wants criminal penalties for broadcasting indecency (Lawmaker Wants Criminal Penalties for Indecency). This isn't just any old lawmaker, but the chairman of the US House Judiciary Committee, James Sensenbrenner (R - WI).

"People who are in flagrant disregard should face a criminal process rather than a regulatory process," the Wisconsin Republican said at the National Cable & Telecommunications Association annual convention.

"That way you aim the cannon specifically at the people who are committing the offenses," and not at everyone, he said. "The people who are trying to do the right thing end up being penalized the same way the people who are doing the wrong thing."

Although he wants to toss people in the slammer for broadcasting indecency, he doesn't believe in regulating indecency on cable, yet. In this way he is unlike some of his congressional colleagues, who are ticking off cable companies (oohhh, scary) LA Times (Indecency Proposal Getting Static From Cable). In fact, cable is so ticked off, they're pre-emptively censoring themselves:
Sources said that Roberts was considering not renewing "The Howard Stern Show" — the videotaped version of the shock jock's rant-filled radio program — when the contract expires this spring. The show, which helped put the E channel on the map, is still a ratings winner. But Roberts is worried that Stern, who has racked up more than $2 million in indecency fines for the nation's radio stations, could provoke unwanted scrutiny from Washington, especially if he gets even raunchier once he moves to satellite radio in January.
And more love from Disney:
Several cable executives privately accuse Disney of urging [Sen.] Stevens to crack down on cable. They point to the close relationship Stevens has with Mitch Rose, his former chief of staff who is now a top Disney lobbyist.

Disney would not comment. But one Disney source, while acknowledging that Rose and Stevens talk frequently, said it was only fair to level the playing field now that most homes have cable.

"If a kid is sitting with a remote control that has 70 channels on the up and down buttons, how stupid is it that the indecency rules only apply to six or seven of them?" this executive said.

That executive is right. It is stupid to regulate only six or seven channels on the remote when there are dozens or more. Of course, no one seems to be saying the obvious, that the answer is to get rid of censorship entirely.

Read the whole, sordid mess.

Comments (2) + TrackBacks (0) | Category: Freedom of Expression

March 28, 2005

March 21, 2005

Bloggers are Journalists: The Down Side

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Posted by Ernest Miller

I've been doing a lot of thinking about the Apple v. Does case and have already written a few posts and will be writing more in the future. I'm not a big fan of the "are bloggers journalists?" debate, particularly when it comes to the government deciding who is a journalist and who isn't a journalist. The only test for "press shield" laws as far as I'm concerned is whether information is gathered and then publicly distributed, or there is an intent to distribute (A Proper Press Shield Test: Publication or Intent to Publish, Period). However, despite my obvious and definitive solution to the problem, the debate about bloggers and journalists rages on.

Many commentators, both bloggers and those in "main stream media," have made the argument that, of course, bloggers are or can be journalists. Well and good. I agree with this position. However, this may have unanticipated consequences.

Today on NevOn (via BoingBoing) I read of the harassment of a foreign blogger by US Immigration (Don't Say Blogger to US Immigration):

This sounds like an unbelievable story, but it happened to Canadian blogger Jeremy Wright last week.

As already reported on quite a few blogs, Jeremy was detained and interrogated by US Immigration when he arrived in New York last week for a meeting with McGraw-Hill [Note: Wright claims the meeting was not with McGraw-Hill] to discuss a great business opportunity for Jeremy in the area of blogging.

It appears that the immigration people simply did not believe that Jeremy could make a living as a blogger. And they gave him the third degree - including an humiliating strip search - as a result for some hours. And banned him from entering the US. [links in original]

Wright's original posts appear unavailable, but he has posted "The End of the Story":
I’m still not 100% sure what happened at Customs at the airport. Really, totally unsure. However at the very least I was denied entry and flagged for followup any other time I try to enter. As far as I can tell, I am not “banned” from entering. I’m not sure why the border guard said I was, threatened to throw me and jail and sieze my assets, etc.....

Anyways, I’m not going to New York. The company basically needed someone there this week, and the only way to get a Visa is through a fairly standard 2 week process. Which I understand, and I’m not mad about, it just means I’m not going.

What happened here? Well, I don't have any more information, but Wright's story reminded me of a journalist's story from May 2004, as recounted in Slate (I, Visa):
Last week a British reporter was detained by immigration officials and then expelled from the United States for traveling here without knowing that the visa rules had changed. More precisely, she didn't know that a decades-old unenforced rule was suddenly being enforced against friendly tourists long accustomed to entering the country without a visa at all. Elena Lappin, a freelance journalist from the United Kingdom (who has written for Slate), was stopped at Los Angeles International Airport, subjected to a body search, handcuffed, frog-marched through the airport, and then held in a cell at a detention center overnight—all because she dared travel to the United States without a special journalist visa. There has been a rule on the books since 1952 requiring foreign journalists to obtain special "I visas," but foreign journalists say it was invariably ignored by Immigration and Naturalization Service officials who required only that citizens of friendly countries apply for a visa waiver, an exemption allowing most residents of 27 enumerated countries to visit the United States for business or pleasure for up to 90 days without jumping through any INS hoops.

No more. When the INS was folded into the Department of Homeland Security in March 2003, the I-visa rule began to be enforced in earnest, sometimes, resulting in at least 15 journalists from friendly countries being forcibly detained, interrogated, fingerprinted, and held in cells overnight—with most denied access to phones, pens, lawyers, or their consular officials. Their friendly welcome at the detention center included lights that shone all night long and video surveillance of the entire cell, often including toilets. [links in original]

Read the whole thing for more on this travesty of freedom of speech.

Could this be what happened to Wright? Even if it isn't, wouldn't this be a nice tool to deny entry to foreign visitors who happen to be bloggers? "You're a blogger? That means you're a journalist, which means you need an 'I' Visa. Don't have one? Too bad."

When everyone is a journalist will everyone need an "I" Visa? Will U.S. bloggers face reciprocity? Perhaps we should change this "I" Visa nonsense instead.

Comments (6) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression

March 14, 2005

A Proper Press Shield Test: Publication or Intent to Publish, Period

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Posted by Ernest Miller

There is has been a great deal of discussion regarding the Apple v. Does trade secrets case and whether or not bloggers or online journalists should be protected by press shield laws. IPTA Blog has helpfully put together a group of links with various commmentary (Blogging, journalism and the law: linkdump). Much of this debate has revolved around whether bloggers are journalists or to whom press shield laws should apply, should it be to people who work for established main stream media, should we measure whether the process of journalism was followed, yadda, yadda, yadda. I find that much of this debate misses the point.

Why do we want a press shield in the first place? The reason derives from the First Amendment. We want to encourage people to gather information and publicly disseminate it without unduly impacting legitimate law enforcement interests. So, how do we limit the press shield appropriately? Linda Berger suggests four possible means to do so in her article on press shield laws (Shielding the Unmedia: Using the Process of Journalism to Protect the Journalist's Privilege in an Infinite Universe of Publication [PDF]). The four possible means are: favoring one kind of speaker, one kind of content, one medium of communication, or one type of process. Seems pretty reasonble to me.

Berger takes quite a bit of time persuasively arguing about the faults of the first three types of distinctions. If you favor one kind of speaker, you end up essentially creating some sort of licensing system for those who are "journalists" and everyone else who publishes to the world. If you favor one kind of content, you inevitably get into the business of deciding what is "news" and what is something other than "news," leading into a thicket of content-based decision-making that is anathema to free speech. If you favor one medium of communication, that just seems weird. Publish in a newspaper, okay, broadcast on television, not okay. I agree that all these means of limiting press shield laws are seriously flawed.

That leaves us with the type of process. Berger constructs quite the litmus test for journalistic processes:

  • Does the Process Show a Commitment to Regular and Public Dissemination of “Journalistic Truth” as Evidenced by a Track Record of Gathering and Publicly Disseminating Usually Truthful Information?
  • Does the Process Show a Commitment to Regular and Public Dissemination of “Journalistic Truth” as Evidenced by the Presence of Internal Mechanisms Designed to Verify and Evaluate Information Before It Is Disseminated?
  • Does the Process Show a Commitment to Regular and Public Dissemination of “Journalistic Truth” as Evidenced by Publication of Information from Which Readers Can Judge the Degree of Independence from Both Inside and Outside Forces?
Sheesh. Do you really want judges and juries deciding such things? Do you really want The Nation having to explain its version of "journalistic truth" and "degree of independence" during a McCarthy era?

Why does all this truth, verification, evaluation yadda, yadda, yadda, even matter?

The "press" and journalism boils down to two things: gather information and publish it publicly. Isn't the only process we need to know about is that information was gathered and then it was publicly published (or there was intent to publicly publish)? Does it really matter if you've never published before in your life, if this is the time you get the scoop. for whatever reason? If you happen to be in the right place at the right time, if you happen to have the specific expertise that will let you see something others miss, why in the world do we care that you've never published something before? Do we want to discourage people who might be a valuable addition to the marketplace of ideas simply because they aren't regular visitors to the marketplace? If people come across information valuable to the public sphere, don't we want them to bring it forward?

Do we really need mechanisms to evaluate truth before publication, if you happen to be the subject matter expert? This isn't libel, where the truth or falsity of a charge is specifically at issue. Even if you aren't a subject matter expert, why shouldn't it be okay to publish something with a caveat saying, "This may or may not be true, but I thought people should know." What harm has occured because of this that wouldn't occur with a fact-checking department (remember this ain't libel)?

Do we really need full disclosure of possible conflicts of interest? If someone publishes anonymously (more-or-less) people will likely take such publicatiobns with a greater grain of salt. Still, that doesn't mean that they aren't worthy of protection as gatherers and disseminators of information.

In the end, it seems to me, the only process worth protecting is gathering information and public distribution or the intent to publicly distribute said information. That is what the First Amendment wants to protect. Sure, we would prefer that information be verified and people have track records, but the First Amendment doesn't and shouldn't care. It is a relatively simple and brightline test. It would certainly protect mainstream journalists, as well as bloggers.

Would it be too broad? I doubt it. You can learn a lot simply by knowing who published the information in the first place. If that doesn't tell you much, chances are the person has probably been acting as a journalist for quite some time. Sources will also be less likely to provide information to people who might not adhere to journalistic ethics. If they adhere to journalistic ethics of protecting sources, even at some cost to themselves, they're probably journalists acting journalistically.

You've gathered information and you published it publicly. Congratulations. You've acted the way the First Amendment hopes you will. Press Shield laws should recognize this.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression

March 08, 2005

Press Shield Laws Defend Democratic Culture in Trade Secret Cases

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Posted by Ernest Miller

Yesterday, Prof. Susan Crawford wrote about the ongoing controversy over the subpoenas Apple issued to various online publications and whether or not these publications would be covered by California's press shield law (Apple and Bloggers). I agree with Crawford that there is no principled distinction between "bloggers" and "journalists" (a position I've held for quite some time). However, I must respectfully disagree with her second point that we really shouldn't care about those who publish trade secrets:

But as long as we're being principled, breaches of trade secret confidentiality are not the stuff of democratic transparency. It's important to protect sources who are leaking government information -- that's democracy at work. It's not as important to protect sources who are allegedly breaking promises to keep information confidential.

In my view, the reporter's shield (like anti-SLAPP motions in California) should be reserved for information/sources that actually have something to do with the democratic process. Let's allow judges to carry out this weighing of the importance of the reporter's privilege. An absolute rule ("never force reporters to divulge sources") will weaken that privilege when we need it the most -- when reporters are reporting on government corruption.

Although Crawford does point out a danger, that the privilege would be weakened by extending it to non-corruption cases, I think there is a greater danger in not holding to a broad definition of the purpose of the First Amendment.

Crawford's distinction between information that is important to the democratic process and information that is not reminds me too much of the Meiklejohnian or republican conception of First Amendment jurisprudence. Meiklejohn emphasized that the purpose of the First Amendment was to protect the democratic process and, thus, political speech and high culture were to receive more First Amendment protection than non-political speech and low culture. I disagree with this view of the First Amendment and adhere more towards Jack Balkin's view that the purpose of the First Amendment is to protect a democratic culture, which incorporates a wider view of what is protected, such as popular culture and non-political speech.

From this view, I believe that publishing information about trade secrets can be very important to defending democratic culture. Imagine someone who publishes information about DRM, for example. The connection is very clear there. But even in the current Apple case the issue is very clear. Apple has a tremendous impact on our common culture; commenting upon and participating in the construction of that culture is an important democratic value. Perhaps we should reconsider our trade secret laws.

Comments (2) + TrackBacks (0) | Category: Freedom of Expression

March 07, 2005

Regulation of Indecency on Cable/Satellite May Be Constitutional

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Posted by Ernest Miller

Last week, many were shocked that Senate Commerce Committee Chairman Ted Stevens (R - Alaska) pronounced that he intended to apply broadcast indecency standards to cable and satellite television/radio. See, Reuters (Lawmakers Press for Decency Limits on Pay TV,Radio). Jeff Jarvis called the scheme "abhorrently unconstitutional." Others may also be under the impression that broadcast television and radio is unique in being subject to much less First Amendment protection than other media and that cable/satellite would be protected. I disagree. I think it is quite possible to draft constitutional satellite/cable indecency regulation. From Reuters:

Stevens disputed assertions by the cable industry that Congress cannot impose limits on its content. "If that's the issue they want to take on, we'll take it on and let the Supreme Court decide."
Stevens may well be right.

Read on to find out why...

...continue reading.

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March 02, 2005

The Future of Broadcast Censorship?

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Posted by Ernest Miller

Apparently, some editions of the movie Sideways that are edited for play on airlines (similar to the editing done in order to meet FCC censorship requirements for broadcast) have replaced the vulgar slang "asshole" with "Ashcroft" according to the Washington Post last week (Name-Calling in Its Purest Form):

You're an Ashcroft! No, you're the Ashcroft!

Imagine hearing that exchange in a movie -- you'd think that Hollywood had come up with a crazy new insult. Well, it turns out that some airline passengers watching the Oscar-nominated film "Sideways" on foreign flights are, in fact, hearing "Ashcroft" as a substitute for a certain seven-letter epithet commonly used to denote a human orifice.

Perhaps this is a compromise solution to the FCC's censorship worries. FCC regulations could require that profane and indecent language be replaced with variations of the commissioners' names. For example:

Okay, so this is cheap and juvenile humor, but the law and the commissioners are also cheap and juvenile.

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March 01, 2005

Free Speech Perfidy at the FCC, Once Again

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Posted by Ernest Miller

Yesterday, the FCC released its ruling that a prime time broadcast of Saving Private Ryan on Veterans Day last year was not obscene, indecent or profane. Read the press release: Commission Denies Indecency Complaints Against Veterans Day Broadcast of “Saving Private Ryan” [PDF]. Read the decision: In the Matter of Complaints Against Various Television Licensees Regarding Their Broadcast on November 11, 2004, of the ABC Television Network’s Presentation of the Film “Saving Private Ryan” [PDF].

Once again, censorious perfidy continues at the FCC, as the commissioners refuse to enforce their free expression prohibitions consistently. The problem with censorship is not simply that some speech is censored, but that the government also censors unequally, favoring the speech of some over the speech of others. Others have written about this decision already, see, Jeff Jarvis (FCC follies, continued... and continued... and continued...) and Frank Field (Pvt. Ryan Gets A Pass).

Herewith, some of my comments on the decision ...

...continue reading.

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February 28, 2005

An Engine of Censorship

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Posted by Ernest Miller

In the copyright and First Amendment case Harper & Row, the Supreme Court famously called copyright law "the engine of free expression." Indeed, properly limited, copyright can be an engine of free expression. However, when not properly limited, copyright can, instead of promoting free expression, become an engine of censorship.

Many have argued this point, but seldom do you see such blatant and concrete examples of this phenomenon as when the Walt Disney Company aligns itself with would be censors of "dirty bits" in order to promote expanded copyright law. The Agitator had the story 10 days ago (Mousetrap):

So I was a little curious why Walt Disney Company sponsored a booth at CPAC [Conservative Political Action Conference]. It's the only notable corporate booth at the conference. My first thought was that maybe Disney's trying to win back family values crusaders still pissed off about the whole (ridiculous) "gay day" thing.

Turns out, Disney's presence at CPAC is a Grover Norquist project, and represents a soul-selling symbiotic effort between cultural conservatives and the Mouse to ban peer-to-peer technology. The Disney booth is lined with op-eds, Heritage backgrounders, and dire warnings to conservative parents about how their children are utilizing peer-to-peer to download pornography.

Is it a coincidence that the copyright industry (which usually celebrates the First Amendment) seeks to get in bed with censors? I think not.


Frank Field's Furdlog notes this hypocritical alliance (Alliances in the Grokster Battle) He quotes from an AP article on the New York Times website (File - Sharing Case Unites Unlikely Allies):

"Hollywood is definitely a strange bedfellow to most of us," said Jim Backlin, vice president of legislative affairs for the Christian Coalition of America. "Our goal was to cut down child pornography and other kinds of pornography, and if for some reason we were allied with the Hollywood types this time, so be it." ....

In building a wider coalition of support, Bainwol [head of the RIAA] said he sought to find a way to ensure that the "mainstream of America would embrace our position."

Bainwol's predecessor, Hilary Rosen, doubts a cozier relationship between conservatives and the entertainment industry will ensue.

"There is a bizarre but cool irony to the conservatives who hate the media we produce but defend to the death our right to make money when we produce it," added Rosen, whose tenure at the RIAA coincided with the 1999 congressional hearings over violent lyrics that followed the Columbine High School slayings.

I really have to admire the brazen way Rosen turns around the classic rallying cry of free speech "I disagree with what you say, but will defend to the death your right to say it."

Comments (2) + TrackBacks (0) | Category: Copyright | Freedom of Expression

February 06, 2005

It's Not the Offensiveness, Stupid

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Posted by Ernest Miller

The usually perceptive Mickey Kaus completely misunderstands what he calls "Nipplegate," aka the brohaha over last year's Super Bowl half time show (Janet, Justin and Michael Powell). Kaus writes that the real problem is not prudishness but offensiveness (It's Not the Nipple, Stupid!):

It's Not the Nipple: A Super Sunday reminder to Frank Rich and other righteous anti-FCCers: The big problem with last year's Janet Jackson/Justin Timberlake halftime show was not that people saw Jackson's breast. It wasn't what Jackson did that was offensive. It was what Timberlake did. Here was a massively popular, relatively hip singer whose message was that it was a hip, transgressive thing for men to rip clothes off women when they feel like it (which is quite often). I watched the game with a group of non-evangelical, non-moralistic dads who were uniformly horrified. The problem for them wasn't sex--their kids see flesh all the time in videos--but a form of sexism, not prudery but piggishness. Surely there are some types of behavior--homophobia, perhaps, or racism, or Republicanism--that even Frank Rich wouldn't want implicitly endorsed during a telecast watched by most of the country's teens and pre-teens. Yet the press has effectively recast this complicated issue as an uncomplicated case of "Nipple-gate," of blue-noses overreacting to the sight of a breast. No wonder red staters respond negatively when New Yorkers call them simplistic. [emphasis, link in original]
The whole damn half time show last year was in extremely poor taste, capped off with Justin and Janet's offensive behavior (I didn't notice Miss Jackson reprimanding Mr. Timberlake). However, that is not what gets this righteous anti-FCCer upset. Of course, the show was offensive. Let the nation ring with outcries against its offensiveness. Let people boycott the network that broadcast, let them stop buying the products of the shows advertisers, whatever rocks their boat.

However, don't let the government get to decide what is offensive and what is not offensive and fine the heck out of speech they don't like.

It's not the offensiveness, it's the censorship, stupid.

Comments (7) + TrackBacks (0) | Category: Freedom of Expression

October 12, 2004

Regulate Speech or Free It? Responding to Sinclair Broadcast Group's Decision to Air Anti-Kerry Film

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Posted by Ernest Miller

Last Saturday, the LA Times (reg. req.) broke a story regarding the plans of the Sinclair Broadcast Group (owners of 62 television stations in 39 markets) to preempt regularly scheduled programming about a week or so before the presidential election in order to air a film attacking Sen. John Kerry's activism against the Vietnam War (Conservative TV Group to Air Anti-Kerry Film). Such a move is unusual:

"I can't think of a precedent of holding up programming to show a political documentary at a point where it would have the maximum effect on the vote," said Jay Rosen, chairman of New York University's journalism department.
Of course it is unusual. It would be unusual if a major newspaper, magazine, or website made a similar announcement of preemption in order to publish partisan content on behalf of a particular candidate. However, though there might be complaints about the decision to do so, there would likely be little question that the newspaper, magazine, or website had a right to do it.

That is not the case for broadcast:

Still, although broadcast stations are required to provide equal time to major candidates in an election campaign, the Sinclair move may not run afoul of those provisions if Kerry or a representative is offered time to respond. Moreover, several sources said Sinclair had told them it planned to classify the program as news, where the rules don't apply.

Calling it news, however, poses its own problems, said Keith Woods, dean of the faculty at the Poynter Institute, a journalism school in St. Petersburg, Fla., that teaches professional ethics. "To air a documentary intended to provide a one-sided view of Kerry's record and call it news — it's like calling Michael Moore's movie news," he said, adding that the closer to an election that a controversial news report is aired, the "higher the bar has to go" in terms of fairness.

If you don't like what Sinclair is doing, then there are three basic responses to it:
  • Everybody Should Do It.
    If the rightwing is going to broadcast propaganda, then the leftwing should organize the purchase of a network of broadcast stations and broadcast its own propaganda.

    Not a terribly satisfying solution, however.

  • Government Regulation of Speech.
    This can be done either as regulation of broadcast through the FCC or regulation of campaign speech through the FEC.

    Either option should concern free speech advocates. Do we really want government commissions to decide what counts as "news" and what doesn't? What is fair and what is not? Does extending the mess of campaign finance reform to include ever more publishers make a lot of sense?

  • Change Broadcast Regulation to Eliminate Gatekeepers
    Might it possibly be that Sinclair's decisions are merely a symptom of the regulatory structure of broadcast, and that the best way to cure it is to change our regulatory structure? I argue yes.
Our Broadcast Regulatory Structure Made Sinclair Possible

And I'm not talking about the recent controversy over cross-media ownership that has been the focus of so much attention this past year. I'm talking about the fundamental structure of our broadcast regulatory structure.

I find Reed Hundt's comments to Josh Marshall telling (From Reed Hundt):

If Sinclair wants to disseminate propaganda, it should buy a printing press, or create a web site. These other media have no conditions on their publication of points of view. This is the law, and it should be honored.
Call me crazy, but if most other media is free to publish whatever it wants (something we call freedom of the press), shouldn't our first question be why broadcast gets treated so differently? Why isn't there freedom of the press for broadcast?

Basically, because broadcast is a government-licensed gatekeeper. Imagine if we had a Federal Newspaper Commission that decided who was allowed to publish newspapers in a particular city. Suddenly, we would have calls for a "fairness doctrine" for newspapers and other government regulation of newspaper content.

One might argue that the broadcast airwaves belong to the people and they must be licensed by the government and regulated because of scarcity. Even if there was scarcity, so what? Cellphone companies lease the scarce airwaves as well. Local telephone companies exist in part because of scarce government granted rights of way. Yet, we don't worry about them distributing propaganda, because our regulations have structured their businesses differently, so that these companies don't really care what they distribute. They are common carriers. There is no particular reason why broadcast couldn't be regulated in a similar way.

Hundt spoke of buying a website to distribute propaganda. Well, perhaps we should try to transition broadcast regulations so that broadcast acts more like the internet. Why should the government maintain a medium that requires government content regulation? Shouldn't the government attempt to structure things so that such content regulation is unnecessary?

The real scandal of what Sinclair is doing is not the propaganda, but that so many people seem to readily accept government regulations that create a perceived need for regulation of free speech.

Comments (12) + TrackBacks (0) | Category: Freedom of Expression | Telecomm

October 05, 2004

NC-17 for Marionette Movie?

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Posted by Ernest Miller

I'm not sure if this is simply a publicity stunt, but the Guardian is reporting that the MPAA is threatening the new marionette movie Team America: World Police with an NC-17 rating for scenes depicting simulated oral sex between the puppets (Puppet oral sex goes against grain for US censors).

The movie will ultimately be released with an R-rating (it is part of the contract), but this will work out just fine for the uncensored DVD I'm sure.

via Hit and Run

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September 23, 2004

FCC's Janet Jackson Ruling Wildly Inconsistent

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Posted by Ernest Miller

Yesterday, the FCC finally decided to fine CBS for the inadvertant baring of Janet Jackson's breast during the Super Bowl XXXVIII. Read the press release: FCC Proposes Statutory Maximum Fine of $550,000 Against Viacom-Owned CBS Affiliates for Apparent Violation of Indecency Rules During Broadcast of Super Bowl Halftime Show [PDF]. This ruling has been expected for some time, so you would think that the FCC would have put a little more effort into the Notice of Apparently Liability.

Read the NAL: Complaints Against Various Licensees Concerning Their February 1, 2004, Broadcast of the Super Bowl XXXVIII Halftime Show [PDF]. It's a total of 33-pages, but about half of it is more-or-less useless appendices.

I'm too tired to fisk the whole darn thing, so I'm simply going to make a few points. Read on...

...continue reading.

Comments (6) + TrackBacks (0) | Category: Freedom of Expression

August 26, 2004

Little-Known Anti-Pornography Statute Threatens Free Speech

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Posted by Ernest Miller

This may not seem like a big deal, but it is a serious threat to online speech.

On WIRED, Xeni Jardin has an article concerning changes to a little-known anti-child porn rule codified at 18 USC 2257 (Porn Law Draws Adult Sites' Ire):

Under Title 18, Section 2257 of the U.S. Code created under the Child Protection and Obscenity Enforcement Act of 1988, producers of adult magazines and movies must make identification documents available to federal inspectors on demand.

But the suggested changes would bring an extensive array of new responsibilities to webmasters. While the current law applies to "primary producers" -- photographers, filmmakers and others who actually create adult material -- the new changes would affect "secondary producers," such as websites, that distribute content created by other companies. The result could have far-reaching consequences for the entire adult industry, but it would have a particularly harsh impact on online companies. [link in original]

Read the proposed modifications here: [Federal Register: June 25, 2004 (Volume 69, Number 122)].

The record-keeping regulations may not seem strict, but considering the quicksilver nature of the pornography business, can actually be quite onerous and do little to protect the children they are ostensibly aimed at. As one anonymous commentator notes, this law basically makes it easy to shut down online porn companies (or even porn bloggers) they don't like:

"Unlike enforcement of obscenity laws, which require vetting of community standards, this is 'yes or no, do you have the documents?' for webmasters," said one technology provider close to the matter who requested anonymity. "This is a much more efficient way to wipe out online porn, a goal Ashcroft has already stated."
I've actually sort of expected this sort of crackdown for some time. I wrote about this law back in 2002 on LawMeme: Little-Known Statutory Threat to Online Pornography:
18 USC 2257 is a real danger to publication on the Internet. This little known aspect of the federal anti-child pornography laws (which include 18 USC 2251-60), requires those who produce visual depictions of actual sexually explicit conduct to maintain records about the identities and ages of the performers. Those who don't are subject to 2 years in jail for a first offense. This law never made any sense, but its burdens on speech were relatively minor when pornography was generally produced for profit. Now that amateur pornography is readily distributed via the Internet, these record-keeping requirements substantially burden constitutionally-protected speech. This is a statute whose enforcement should be carefully watched. [link, italics in original]
I stand by my warning of two years ago. We need to watch enforcement of this statute.

Bonus: As I mentioned before, "I believe there is a reasonable argument as to why 18 USC 2257 violates the copyright clause. Any guesses as to why I might think that?"

Thoughtful comments on this issue from Christian Libertarian (DoJ Proposes Unethically Attacking Porn Through Ambiguous Regulations).

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August 18, 2004

Calif. Legislature Passes Requirement that Retailers Post Video Game Ratings

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Posted by Ernest Miller

GameSpy reports that the California legislature has passed a bill requiring videogame retailers to post ratings labels and provide information about ratings on videogames (Video game bill passes Senate). The bill now awaits the signature or veto of Gov. Schwarzenegger. Read the legislative analysis of the AB 1793 here: AB 1793 - Bill Analysis.

While this is better than original versions of the bill, it still shows the prejudice legislators have against this particular media. Why not similar requirements for bookstores, movie theaters, music stores and magazine stands?

via Joystiq


Here is an AP article on the cybercafe regulations in Los Angeles that quotes your humble correspondent (Violence Tackled at Online Gaming Parlors).

Comments (3) + TrackBacks (1) | Category: CyberCafes | Freedom of Expression | Games

August 06, 2004

News Should be Objective and Impartial According to Our Standards - US Lawmakers Threaten First Amendment Rights

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Posted by Ernest Miller

Jeff Jarvis points out where government censorship, such as the indecency enforcement of the FCC, inevitably leads: calls to regulate the news to be "unbiased, impartial and objective" (Unfair and unbalanced). Read Jarvis' acid words and the UPI report on the Congressional threats against the First Amendment (Dem lawmakers say Fox News is unbalanced):

Several members of Congress sent a letter Tuesday to Rupert Murdoch, owner of Fox News, to express their opposition to what they say is the network's "unfair and unbalanced" bias towards the Republican Party.

The group, composed of 38 Democrats and Independents from the U.S. House of Representatives, has requested that Murdoch meet with them to discuss their concerns....

"It seems clear that Fox News network has a deliberate bias in favor of, and often serves as an extension of, the Republican Party's policies and ideology."....

A spokesman for Rep. Bernie Sanders, I-Vt., said there were legislative avenues that the group could pursue as a secondary measure but declined to speculate on what those might be.

Have these legislators no shame?

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July 30, 2004

Better Tape Delay the Political Conventions

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Posted by Ernest Miller

Drudge is reporting that DNC Convention Director Don Mischer used what the FCC calls "indecent and profane" language and his unfortunate words were (inadvertantly?) broadcast by CNN ('What the F**k Are You Guys Doing Up There?'):

'We need all of them coming down. Go balloons- balloons? What's happening balloons? There's not enough coming down! All balloons, what the hell! There's nothing falling! What the fuck are you guys doing up there? We want more balloons coming down, more balloons. More balloons. More balloons'...
Luckily, CNN is a cable news network and not subject to the FCC's indecency regulations (yet). However, if the language had accidentally been broadcast over the air, wouldn't the FCC have to fine the stations unfortunate enough to have broadcast the profanity? After all, they could have taped delayed the political convention. They should have realized, given numerous precedents, that politicians and associated types are prone to using profane language, just as rock stars are. If you can get into trouble because Bono spontaneously says "fucking brilliant" on an awards show, why is this different? It is more or less an awards show anyway, right? That is what they hire Don Mischer for, isn't it?

Listen to the audio clip: DNC Convention Profanity [MP3].

via Lost Remote

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July 29, 2004

Alcohol Ads in Univ. Newspapers Legal Says Third Circuit

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Posted by Ernest Miller

An interesting commercial speech case was published today. The Pitt News had challenged the constitutionality of a Pennsylvania law that prohibited advertisements for alcoholic beverages in media affilitated with a university, college or "educational institution." The newspaper is an independent student organization, but is affiliated with the Univ. of Pittsburgh. The Third Circuit overturned the statute on First Amendment grounds, after an earlier appellate ruling had denied a preliminary injunction because the paper was unlikely to prevail on the merits. Read the 17-page decision: The Pitt News v. Pappert [PDF].

After determining that free speech was implicated (the earlier appellate decision didn't think denying revenue to newspapers from certain advertisers implicated free speech), the decision to overturn the law was based on two arguments. First, the law violated commercial speech doctrine and, second, it placed too great a financial burden on too small a group of speakers. Under commercial speech doctrine, "the government must demonstrate that the challenged law 'alleviate[s]' the cited harms 'to a material degree.'" The problem with the law, according to the court, is that it only affects a very small number of alcohol advertisements:

Section 4-498 applies only to advertising in a very narrow sector of the media (i.e., media associated with educational institutions), and the Commonwealth has not pointed to any evidence that eliminating ads in this narrow sector will do any good. Even if Pitt students do not see alcoholic beverage ads in The Pitt News, they will still be exposed to a torrent of beer ads on television and the radio, and they will still see alcoholic beverage ads in other publications, including the other free weekly Pittsburgh papers that are displayed on campus together with The Pitt News. The suggestion that the elimination of alcoholic beverage ads from The Pitt News and other publications connected with the University will slacken the demand for alcohol by Pitt students is counterintuitive and unsupported by any evidence that the Commonwealth has called to our attention.
Additionally, the statute must be "narrowly tailored" to meet the government's ends. Here, the court concluded that the law was both overbroad and under-inclusive.
As noted, more than 67% of Pitt students and more than 75% of the total University population is over the legal drinking age, and, in Lorillard, the Supreme Court held that a restriction on tobacco advertising was not narrowly tailored in part because it prevented the communication to adults of truthful information about products that adults could lawfully purchase and use. Not only does Section 4-498 suffer from this same defect, but the Commonwealth can seek to combat underage and abusive drinking by other means that are far more direct and that do not affect the First Amendment. The most direct way to combat underage and abusive drinking by college students is the enforcement of the alcoholic beverage control laws on college campuses.
And, thus, the statute fails commercial speech analysis.

The second and independent reason for the law's unconstitutionality is that it was too narrow. Normally, general burdens on speakers are perfectly acceptable. Newspapers have to pay for a business license, just like any other business. However, when media is singled-out for special financial burdens (such as denying them the ability to obtain alcohol advertising revenue), the law may be unconstitutional. The court decided that, because the law basically only applied to university affiliated media, it was too narrow.

via How Appealing

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July 28, 2004

FCC Launches Inquiry Into Violence on Television

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Posted by Ernest Miller

The FCC has issued a Notice of Inquiry (NOI) today to look into the effect of violent television programming and its impact on children (Notice of Inquiry: In the Matter of Violent Television Programming And Its Impact on Children [PDF]). The reason for the NOI is that the House Commerce Committee basically ordered it (Attacking Violence on Television). Of course, this study comes despite the government-mandated V-Chip, which was supposed to solve the problem, if there was one.

Given the ridiculous crackdown on indecent and profane speech, what do you think the chances are that the FCC will take a pass on regulating violent speech?

Read on...

...continue reading.

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July 27, 2004

Barbie on the INDUCE Act (IICA): From My Cold, Plastic Hands, Senator Hatch

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Posted by Ernest Miller

Nicholas_Bergson-Shilcock_I.jpgBarbie in a Blender is a wonderful celebration of free speech and fair use:

So when Utah artist Tom Forsythe took this photograph of Barbie in a blender as part of a series of critical fine-art Barbie photos, Mattel got pissed. So what did they do to try stop Tom's message? They decided to sue his ass....Luckily for Tom, he convinced some lawyers from the ACLU to step up to and fight his case, and after a long legal battle he was victorious. The judge in the case ruled that the lawsuit clearly ran counter to the first amendment, calling Mattel's suit "groundless and unreasonable." Not only that, but the Judge's order forces Mattel to pay Tom's $1.8 million in legal fees. National Barbie-in-a-Blender Day, July 27, is a celebration of this important defense of free speech.
Visit the exhibit, but Barbie's commentary on the Inducing Infringement of Copyrights Act (IICA, née INDUCE Act) is my favorite. Photo by Nicholas Bergson Shilcock, Barbies Endorses

via Copyfight

Want to know more about the INDUCE Act?
Please see LawMeme's well-organized index to everything I've written on the topic: The LawMeme Reader's Guide to Ernie Miller's Guide to the INDUCE Act.

Comments (0) + TrackBacks (0) | Category: Copyright | Culture | Freedom of Expression | INDUCE Act | Oddities

RIAA Subpoenas for John Does Valid

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Posted by Ernest Miller

C|Net News reports that the RIAA has won a significant battle in its lawsuits against thousands of John and Jane Does (Judge: RIAA can unmask file swappers). The ruling basically allows the RIAA to subpoena (on an expedited basis) a broadband provider for the identities of the John Does the RIAA has sued for copyright infringement. The RIAA must make a prima facie case of infringement, but the various arguments raised to quash subpoenas were rejected.

Although this is a decision by a single district court, it is likely to be persuasive in other courts though it isn't binding. Read the 26-page decision: Sony v. Does 1-40 [PDF].

The most important argument involved the First Amendment right to anonymity of the file sharers. While the judge recognized the First Amendment interest, he concluded that it was not sufficient to protect anonymity for filesharing of copyrighted files without any additional speech. This was the right decision. I agree with Paul Levy:

Paul Levy, an attorney at the nonprofit group Public Citizen, said that "the nice thing about the ruling is that (the judge) recognizes the First Amendment interests at stake here and he applies a balancing test." Levy, who filed a friend-of-the-court brief opposing the RIAA, said that Chin's analysis ensures that companies filing a copyright infringement lawsuit must prove they have a real case and aren't merely on a fishing expedition for someone's name.
The court reserved the right to address the other arguments, such as personal jurisdiction and improper joinder, later. This decision merely addressed the question of quashing the subpoenas. Now that the RIAA knows who it should sue, severance and and personal jurisdiction arguments will probably be made on behalf of the defendants.

There was one interesting aspect of the personal jurisdiction question. Defendants/amici were arguing that the IP/geographic location databases were accurate and showed most of the defendants outside of New York, while the plaintiffs were arguing that they weren't accurate enough to deny the subpoenas:

A supporting declaration by Seth Schoen, staff technologist with amicus curiae Electronic Frontier Foundation, explains the process by which defedants' IP addresses can be matched up with specific geographic designations, using a publicly available database operated by the American Registry for Internet Numbers. These geographic designations indicate the "likely" locations of the residence or other venue where defendants used their Internet-connected computers. Amici maintain that as many as thirty-six of the forty Doe defendants are "likely" to be found outside of New York.

Plaintiffs, however, dispute the accuracy of the methods described in the Schoen Declaration. According to plaintiffs, the geographical designations fall "far short" of 100 percent accuracy and are "often extremely inaccurate." [citations omitted]

Shades of Nitke v. Ashcroft, in which the government advocates the use of geolocation services to promote community standards on the internet with regard to obscenity. Censorware expert Seth Finkelstein has provided testimony that such services are flawed: (Expert Report of Seth Finkelstein in Nitke v. Ashcroft).

Tech Law Advisor has some additional comments ( Up/Downloaders Identities Not Protected by First Amendment).

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing | Freedom of Expression | Privacy

July 25, 2004

Claim of Libel Threat is Made - No One Bothers to Check if it is True

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Posted by Ernest Miller

From my provincial American point of view, British libel law sucks. The First Amendment provides strong protection against libel charges by public figures, while British law seemingly favors such plaintiffs. So, you'll often hear about public figures suing for libel (or, more often, threatening to sue) in British courts instead of futilely going to American courts.

So it was with great interest that I read yesterday's New York Times' article about former President Clinton making changes to his autobiography, My Life, for publication in the UK (Changing His 'Life' to Suit British Law). Apparently, the British publisher feared a libel suit from Kenneth Starr, the special prosecutor and nemesis of then-President Clinton.

Strangely, though the article claimed that the publishers feared a lawsuit from Starr (now Dean of Pepperdine Univ. School of Law), there was no mention that either the British publishers or the New York Times reporter had spoken to Starr and asked his opinion of the matter. How hard would it have been for the NY Times reporter to get at least a "no comment" from Starr's office?

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July 21, 2004

The Flip Side of Censorship - Mandatory "Good" Speech

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Posted by Ernest Miller

Indecent and profane language regulation aren't the only way the FCC mucks around with content regulation of broadcast. The same statutes and justifications for regulating "bad" speech provide the foundation for mandating certain types of "good" speech. This "good" speech is usually referred to by the rubric "public interest obligations." Censorship has two faces, what you can't say and what you must say.

FCC Chairman Michael Powell seems awfully fond of defending indecency regulations (My Trip to California:

Congress is elected and represents the full body of the American people and the laws it passes are presumed to be reflective of the public will. Congress, having passed the law, can and has directed the FCC to enforce the law. This is where our authority (indeed our obligation) comes from.
Of course, that justification still leaves much discretion in the hands of the FCC regarding how to enforce the law. What Powell doesn't explain is why the FCC has taken such an aggressive position regarding indecency enforcement but not in requiring stricter public interest obligations.

Don't get me wrong, I'm against both indecency regulation and public interest obligations. I just want to point out Powell's hypocrisy. Of course, a better demonstration of this hypocrisy comes from Commissioner Michael Copps who consistently favors strong regulation of both indecency and public interest obligations. His recent speech to the Public Interest, Public Airwaves Coalition proves this (Remarks of Commissioner Michael J. Copps, Public Interest, Public Airwaves Coalition, Washington, DC, July 19, 2004 [PDF])

We need America’s broadcasters to step up to the plate and correct this deplorable mess. Commissioner Adelstein has made some really good suggestions on these issues. The Public Interest, Public Airwaves coalition has put forth more good ideas. I was proud to be present at their unveiling. Some broadcasters are committing to air more candidate-centered speech and public service announcements this year—but not enough of them. Wouldn’t it be nice to see every broadcaster in this country step up to the plate and designate the rest of this election year as the “Campaign for America” and devote some truly meaningful time to it. And I don’t mean just a few minutes here and there, but time commensurate with the tough challenges that confront every citizen in 2004. The issues are war and jobs and health care and deficits and consumer well-being… yet those charged with using the public airwaves for the public good can’t get serious about covering what’s at stake?
And what are the "good ideas" that the Public Interest, Public Airwaves Coalition supports (Proposed Processing Guidelines)? Basically, they would set out a series of obligations that broadcasters must meet in order to get their licences renewed:
To receive staff level approval, a licensee shall air a minimum of three (3) hours per week of qualifying local civic or electoral affairs programming on the most-watched (primary) channel they control/operate....
  • It must be aired between 7:00 a.m. and 11:35 p.m. with at least 50 percent of that programming being aired between 5:00 p.m. and 11:35 p.m.
  • At least 75 percent of the required minimum must be "first-run programming" by the licensee.
  • A licensee holding multiple licenses within the same area (as defined by the Commission's rules permitting multiple ownership) may not fulfill its requirements by duplicating original "first run" programming on its stations. Each station licensed within a market must fulfill the public interest guidelines by providing the public with a unique perspective.
  • To the extent that a licensee utilizes such distribution and promotion mechanisms as personal video recorders (PVRs), video-on-demand (VOD), and electronic program guides (EPGs), local civic and electoral affairs programming must be made available and promoted using these and other utilized interactive technologies.
  • It must be identified and documented as local civic or electoral affairs programming, and this information must be made available in the licensee's public file and website.
Is this what free speech looks like? And this is just a small sample of the extensive list of requirements that the coalition suggests. All for your own good, of course.

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July 20, 2004

2Michael P. - Answer the Tough Questions

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Posted by Ernest Miller

Marc Canter says that FCC Chairmam Michael Powell's blogging "is not a fluke folks. This guy is for real." [empahsis in original] (Michael Powell keeps on blogging). I hate to disagree with Marc, but all Powell's latest post demonstrates is that a bureaucrat can dodge the tough questions in an informal, "folksy" manner (My Trip to California). For example, take the start and finish of Powell's latest post: "2Fellow Bloggers ... Thanks, Michael P." Geez, are we like buds now or what?

Powell actually spends a bit more than half his post doing the bureaucrat shuffle about indecency. To save you the trouble of reading it, Powell simply gives his generic defense of the issue. In other words, "Congressional law ... blah blah blah ... Supreme Court upheld ... blah blah blah ... importance of First Amendment ... blah blah blah ... complaint driven .... blah blah blah ... context ... blah blah blah ... tough decisions ... blah blah blah ... bipartisan ... blah blah blah." He said absolutely nothing here that was new or even interesting. I don't expect him to discuss Howard Stern and Oprah, which is a pending matter. However, there are a number of tough questions he can't or won't answer (FCC Chairman Powell on Indecency at Always On).

"Michael P." talks about indecency, but why doesn't he explain why the FCC revived the profane language doctrine and has not ruled out punishing people for blasphemy? That would be a real answer.

via Bag and Baggage

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July 16, 2004

Washington's Violent Videogame Law Held Unconstitutional

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Posted by Ernest Miller

Federal District Judge Robert Lasnik of the Western District of Washington held, on summary judgement, that Washington's video game law was unconstitutional on free speech grounds. The law, which had been blocked by a preliminary injunction, "would have imposed a $500 fine on anyone, such as a store clerk, who sold a video game depicting violence against 'law enforcement officers'" to minors under age 17," according to Reuters (Judge Strikes Down Washington Video Game Sales Law). The Seattle Post-Intelligencer also has a report (Ban on violent videos struck down). Read the 15-page decision and order: Video Software Dealers Assoc. v. Maleng [PDF].

The case overall is a big win for free speech. However, the court also makes clear that this controversy will not be leaving us soon (See, for example: Opposition to Violent Videogames Continues).

Read on for some quotations and a summary of the case ....

...continue reading.

Comments (3) + TrackBacks (0) | Category: Freedom of Expression | Games

July 15, 2004

Movie Studios Cooperate with Broadcast Censors

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Posted by Ernest Miller

The Parents Television Council (motto: "Because our children are watching") is the main organization leading the way in sending indecency complaints to the FCC. They are one of the most significant reasons that television indecency complaints have increased from 111 in 2000 to 545,000 in the first quarter of 2004. Just last week, they launched a new website (Cleanup.TV) to facilitate even more FCC indecency complaints (PTC Launches New Website to Facilitate Filing and Tracking FCC Indecency Complaints).

Thus, you would think that Hollywood movie studios (many of which are heavily involved in broadcast as well) would be more than reluctant to increase the visibility and power of the PTC. You'd be wrong.

According to a report in the Hollywood Reporter on Monday, movie studios are accepting the PTC Seal of Approval for their movies and using it in their advertising (PTC tries softer approach in film foray):

"When marketing a family film, it is always helpful to have the support of an organization such as the Parents Television Council," said a spokeswoman for New Line Cinema, which used the PTC seal in advertisements for 2003's "Secondhand Lions." "The seal of approval helps audiences identify family-friendly product and also lends credibility to a film targeted to that audience."

A Miramax spokeswoman said the PTC seal of approval helped the studio position its recent feature "Ella Enchanted" as a "film that offers quality entertainment for the entire family." Warner Bros. Pictures used the seal in print ads for its Mary-Kate and Ashley Olsen movie "New York Minute," and Universal Pictures is employing it for "Two Brothers."

Why is this a bad idea?
Indeed, the push to apply the PTC seal of approval to films could be seen as a marketing initiative for the PTC itself. Having the logo prominently featured in newspaper ads may in time raise the group's profile beyond the narrow world of media watchdog organizations. Screening events could also provide an incentive for new members to join the PTC, but Mahaney denied that the PTC's outreach to filmdom had anything to do with burnishing the PTC's own image.
Look, I don't have a problem with independent rating organizations. I think it is fine that groups will make the effort to rate content for their audiences. It doesn't bother me that they might promote some content and denigrate other content. That is their call. This is a free country. However, the PTC goes well beyond that. They use their organizational skills to encourage the government to censor content. They send tens of thousands of complaints to the FCC (which the FCC foolishly take as representative of the country). They are driving a truck through the First Amendment loophole the Supreme Court created in Pacifica.

That's bad enough. Now, in order to sell a few more tickets, movie studios are more than willing to sell out their broadcast brethren. Smart, Hollywood, real smart.

Bonus: Check out this PTC editorial cartoon that depicts the "public" and "government" pulling a rope wrapped around the throat of "Hollywood" (Weekly Editorial Media Cartoon: Feb. 10, 2004). Why does the image of Hollywood selling the rope to the PTC come to mind? Why does the phrase "useful idiots" seem appropriate?

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FCC Chairman Powell on Indecency at Always On

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Posted by Ernest Miller

Denise Howell, of Bag and Baggage fame, is at the Always On Conference in Stanford and blogging reports, including a panel chat with FCC Chairman Michael Powell (Chat With Michael Powell). C|Net News also has a report (Powell calls for legislative rethink). The chat covered a wide variety of topics, but I'm going to concentrate on the one I've been following most closely recently: the FCC's indecency crackdown.

Once again, in defending the FCC's indecency regulation, Powell retreated into his coverup position that he is only enforcing a law Congress passed and the Supreme Court has said was constitutional. This is a non-response to what the FCC has been up to recently in the indecency arena.

Item number one is why did the FCC revive the profane language doctrine (FCC Revives Notion of the Profane)? The FCC had never enforced the profane langugage doctrine before this year. Why, suddenly, did the FCC decide to revive a "profane language" test from a single federal circuit decision written in 1972? That's not regrettable enforcement. That's an aggressive attack on freedom of expression. Since then, the FCC has inconsistently cited the profane language doctrine, meaning it will remain as vague and dangerous to free speech as ever (Where's the Profanity? and FCC to Require Broadcasters to Retain Copies of Broadcasts for 60-90 Days).

Item number two is Powell's continued mantra that "The notion that the first amendment changes when you change channels is odd. And I'm troubled that it's more than odd, it's dangerous." Well, yes, it is an odd and dangerous notion. But note what Powell does not do. Powell does not say which side he comes down on. Should broadcast be free of indecency regulation as cable is, or should cable be subject to the same indecency regulation that broadcast is? In the context of defending indecency regulation of broadcast, Powell is implicitly calling for indecency regulation of cable. That is what the true danger is.

Item number three is Powell's claim that indecency regulation is subjective and the views are different between Manhattan, NY and Butte, Montana. Unfortunately, the FCC has decided upon a national standard for indecency. They could have adopted a local standard for indecency, but they chose to go with a national standard. Perhaps, someone could have asked Powell if he preferred a lowest common denominator or highest common denominator standard for free speech? Should we have the indecency regulations preferred by New York or Utah?

Item number four is Powell's arguments that indecency regulation is determined by the number of complaints the FCC receives. Isn't Powell just a little concerned about this process? Should prosecutors decide what crimes to prosecute based on public complaints, or should the DA's office use their own discretion to decide? Yes, there have been an increasing number of complaints, but is that because the content of television has changed overnight (complaints skyrocketing in a single year) or because of an organized campaign by groups like the Parents Television Council? Doesn't Powell think we should be just a little skeptical when complaints have jumped from 111 in all of 2000 to 545,000 in the first quarter of 2004?

When will Powell have to answer any of the tough questions?

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July 13, 2004

New Technology Can Thwart Child Pornographers Without Inhibiting Free Expression

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Posted by Ernest Miller

A couple of weeks ago I discussed some news regarding an ex-prosecutor who was now testifying as an expert witness on behalf of those accussed of possessing child pornography (Prosecutors Threaten Child Porn Legal Defender). Federal prosecutors were very upset that this lawyer was disrupting their prosecutions. Under existing law, however, the defense the lawyer was providing (that the photos might be photoshopped and not actually of children at all) is perfectly legal and makes a lot of sense.

Later, Prof. Eugene Volokh wondered if the difficulties in prosecuting such cases would cause the Supreme Court to overturn the ruling that protects speech that may appear to be of children, but isn't (Child porn cases thrown out).

My argument has always been that the prosecutors just have to do a better job. As I noted before, they can create databases of authenticated child porn. You only need a handful of images for a successful prosecution, and if the target of the prosecution has a handful of images out of the authenticated database ... game over.

Additionally, the feds have to be a little more sophisticated about authenticating images. After all, digital manipulation of photos isn't limited to pornography alone. Luckily, it appears that other government departments have been taking some proactive steps.

Prof. Hany Farid, a researcher at Dartmouth College is developing algorithms that will help distinguish images that have been manipulated from images that have not (Investigating digital images):

Farid and his students have built a statistical model that captures the mathematical regularities inherent in natural images. Because these statistics fundamentally change when images are altered, the model can be used to detect digital tampering.
For child pornography prosecutors, this technique could easily be used to show that child porn photos haven't been digitally manipulated. Prosecutors have to work smarter, not simply protest that the Constitution keeps them from doing their job.

via Boing Boing

Bonus: Farid also works on "the digital reconstruction of Ancient Egyptian tombs."

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The Living Room Candidate - Not a Creative Commons

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Posted by Ernest Miller

The American Museum of the Moving Image in Astoria, New York is an incredible museum and resource. It "is the only institution in the United States dedicated exclusively to the study of film, television, and digital media, and to examining their impact on American culture and society." In addition to the permanent collection of over 100,000 moving image artifacts, it has some fantastic temporary exhibits currently, such as a collection of Tim Burton's drawings from 12 of his movies. There is also an ongoing exhibit on videogames. In fact, admission to the museum provides you three tokens to play classic games including: Asteroids (1979), Frogger (1981), Ms. Pac-Man (1982), Space Invaders (1979), and Tron (1982). Additionally, the online exhibit Computer Space lets you download an emulator and the actual ROM for many of the games so that you can play them on your PC at home. You can download the original games! How cool is that?

Answer: very. Unfortunately, downloading the content from AMMI's latest exhibit is prohibited. Which is really a shame, because while the exhibit is excellent (really, really excellent), making the content freely downloadable could be very useful for our democracy. It's that important. Read on...

...continue reading.

Comments (6) + TrackBacks (0) | Category: Broadcatching/Podcasting | Copyright | Freedom of Expression

July 12, 2004

Comic Book Free Expression

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Posted by Ernest Miller

One might not think it, but comic books have not only become a major cultural force through movies, but have led to some extremely interesting intellectual property and free expression cases. Anymore cases and comics will soon have to have their own chapter in the lawschool textbooks right next to the chapter on Scientology.

In the last few years, there have been a number of obscenity charges against comic books (see, Comic Book Legal Defense Fund: Casefiles). There have also been some extremely interesting intellectual property cases. For example, there was the Winter Brothers case, in which the famous blues musicians sued a comic book publisher and its artists for their portrayal in a comic book as half-worm/half-man creatures (citing right of publicity issues among others) (California Supreme Court Rules Jonah Hex Comic Entitled to First Amendment Protection).

Comic book artist turned cultural entrepreneur Todd McFarlane is most famous for his creation of the multimedia character Spawn. He is also famous for his additions to the comic book lawsuit canon. Earlier this year an important decision regarding the ownership of comic book characters was decided against him. Interesting issues include the statute of limitations for copyright and copyright for a joint creation. Scrivener's Error has a good summary (Character Defects).

The second case of interest is hockey player Tony Twist's lawsuit against McFarlane for using Twist's name for a comic book mafia boss. The case was thrown out twice, by a Missouri district court and the state appeals court, but was reinstated by Missouri's Supreme Court. An appeal to the US Supreme Court was denied.

The case raises important First Amendment issues regarding the use of the names of public figures in works of art, so it is unfortunate that the St. Louis Post-Dispatch reports the second jury trial goes against McFarlane (Tony Twist wins $15 million verdict). The AP also has wirestory regarding the decision (Tony Twist wins battle over name). Of course, the case isn't over yet, as McFarlane intends to continue to appeal.

via How Appealing

UPDATE Prof. Eugene Volokh, who wrote an amicus in the case, has some informative comments (Naming a character after a famous person costs writer $15 million).

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July 08, 2004

FCC: F-Word May Still Be Used, But We Won't Explain When

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Posted by Ernest Miller

The excellent Broadcasting and Cable reports on a recent talk by David Solomon, Chief of the FCC's Enforcement Bureau, regarding the FCC's indecency enforcement, natch (F-Word Not Banned, Says FCC). Last March, the FCC notoriously reversed position and declared that Bono's use of the word "fucking" as in, "fucking brilliant" was not only indecent but also profane (FCC Revives Notion of the Profane). So what does the chief enforcer have to say about this?

He insisted to a Media Institute crowd Wednesday that the Bono decision did not mean the f-word was, per se, off limits, and said the bureau and commission still are taking context into account, pointing to the precedent of the news exemption for f-words in mafioso John Gotti tapes on NPR.
Of course it isn't per se off limits. If it were the Supreme Court would laugh the already silly FCC out of the courthouse, since the Supreme Court clearly requires "context" to be part of the indecent decision making process. So, when would it be permissible? The Gotti decision was over a decade ago, and the Bono decision basically said that all broadcasters could no longer rely on prior decisions.
He did not concede the point, but did recognize the criticism that the punishment of the fleeting, live, non-sexual adjectival f-word by Bono left little room for a non-actionable use of the word, at least in the entertainment realm.

But news is not a shield, either, he pointed out, citing the KRON-TV puppetry of the penis case, in which a morning news show was fined for an errant puppet. Solomon said that fine was because the on-air newspeople appeared to be encouraging the "flash."

So, if you play that Gotti tape a little too often, or maybe joke about it a little, you'll get fined. News should be serious and unentertaining, apparently. In any case, Gotti used the word "fuck" or its variations ten times in seven sentences. You know any broadcasters who would play the tape today? 'Cuz I sure don't.
Solomon, whose earlier decision that the Bono f-word was not indecent was reversed by the full commission, told a Media Institute crowd in Washington that broadcasters must start doing more to self-regulate, and not hide behind "the mantra of the First Amendment."
Translation: Self-censorship is so much easier for us. How dare you exercise your full free speech rights.

Solomon also seemed to look forward to the court challenges, which would provide welcome guidance. Wait a minute, the FCC has said that the broadcasters have all the guidance they need. If the FCC would welcome more guidance, how can it be that the broadcasters have enough guidance? Either you need more guidance or you don't. If you don't need more guidance than additional guidance is unnecessary and a waste. Seems to be a significant inconsistency here.

Finally, because of the fine boost, Solomon doesn't expect to fine the maximum routinely anymore. Yeah, right. The Congress provided new maximums so that they wouldn't be used, sure.

No mention of profane language in this article. I would really love to sit down with some people from the FCC and have them explain their reasoning about "profane" language to me.

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July 07, 2004

FCC to Require Broadcasters to Retain Copies of Broadcasts for 60-90 Days

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Posted by Ernest Miller

Today, the Federal Censorship Communications Commission (FCC) announced (through a notice of proposed rulemaking) that it will likely be requiring all broadcasters to retain copies of their broadcasts for 60 - 90 days in order to better combat indecent broadcasts (In the Matter of: Retention by Broadcasters of Program Recordings [PDF]):

In this Notice of Proposed Rulemaking (“NPRM”), we propose to require that broadcasters retain recordings of their programming for some limited period of time (e.g., 60 or 90 days) in order to increase the effectiveness of the Commission’s process for enforcing restrictions on obscene, indecent, and profane broadcast programming. [italics in original]
Decency Nazgul and Commissioner Michael Copps was enthusiastic about the new requirements (Statement of Commissioner Michael J. Copps, Re: Retention by Broadcasters of Program Recordings, Notice of Proposed Rulemaking [PDF]):
The process by which the FCC has enforced the indecency laws has for too long placed inordinate responsibility upon the complaining citizen. When someone sends in a complaint, he or she is usually told to supply a recording of the program or a transcript of the offending statement, or the complaint will be dismissed. This policy ignores that it is the Commission’s responsibility to investigate complaints that the law has been violated, not the citizen’s responsibility to prove the violations. [emphasis in original]
This rulemaking is very troubling for a number of reasons. Many have claimed that the FCC's indecency crackdown is nothing more than election year posturing. This NPRM indicates that it is not. Once this rule is put in place, it is unlikely to go away. Read on...

...continue reading.

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Filtering Out Blogs

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Posted by Ernest Miller

Prof. Michael Froomkin ran into some troublesome web filters while traveling overseas (Annoying Filter Update). Popular blogs such as Atrios and the Volokh Conspiracy were blocked because of naughty words. Censorware expert Seth Finkelstein points out how commentators could take advantage of this to get blogs they don't like blocked by filters (Censorware usable for blog Denial-Of-Service Attack?). Given that libraries and schools must use filters or be denied federal funding, this may not be that minor of a point.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Rating and Filtering

July 06, 2004

The Debate Over Free Information 100 Years Ago

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Posted by Ernest Miller

One hundred years ago today, the Oil City Public Library opened thanks to a $50,000 donation from Andrew Carnegie (Building of library was controversial issue back in 1904). Yet, as the title of the article indicates, building the library was not universally applauded. Reading the article, which includes many quotes from the debates of the era, shows many parallels with the arguments surrounding many of the copyright, library filtering and open access debates of today:

“The placing of a large collection of books within the reach of school children, without money and without price, will place all children on an equality. The child who has access to many books at home will not have so great an advantage as now over the child who cannot afford to own costly books of reference.”

“…If Oil City should have an institution of that kind, it would prove the ruination of hundreds of young persons, who would waste their time and corrupt their minds by reading cheap sensational novels.”

“People who claim that the reading of (dime) books…will injure the young should investigate carefully what these young ones are reading now.”

“The argument that reading works of fiction is injurious to the minds of working men is often advanced by men who themselves enjoy perusing such books.”

“The final (election) tally: 466 against the library, 982 for the library.”

via LISNews

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Oddities | Open Access

July 05, 2004

Opposition to Violent Videogames Continues

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Posted by Ernest Miller

WIRED publishes an AP wirestory on the opposition to violence in videogames (Violent Video Games Under Attack). Why violence? Perhaps it is because not too many games feature sex. I expect this to change over the next couple of years. In any case, this article is yet more evidence that the fight for free expression for this media form is not even close to over.

Of course, the good AP editors must still be on holiday:

There is also the inescapable fact that the military uses video games to train its soldiers. A 2003 University of Rochester study found that young adults who played a lot of fast-paced video games showed better visual skills than those who did not.
It is also an inescapable fact that the military uses movies, pictures and print media to train its soldiers. Why is this relevant? Is the military using the games to teach aggression? Perhaps they are using them to train for better visual skills, at least that is what the second sentence of the paragraph seems to imply, or maybe it isn't related to the first sentence at all. Who knows?
Author Evan Wright ponders the effects of video games on U.S. soldiers in the current Iraq war in his new book Generation Kill. In an endorsement that Grand Theft Auto creator Rockstar Games would probably rather not get, he quotes one U.S. soldier as saying an ambush felt just like playing the game.

"It felt like I was living it when I seen the flames coming out of windows, the blown-up car in the street, guys crawling around shooting at us," the soldier says.

A truly touching anecdote. Go back to the first Gulf War and you will undoubtedly find references to the resemblance or non-resemblance of war to the movies' depiction of war. A reader-submitted review of the book on Amazon claims that the book includes a similar anecdote about another media form as well, "someone recites gangsta rap lyrics as he ecstatically sprays machine gun fire on the enemy (A very admirable piece of wartime journalism). Read the book and I'm sure you'll find other shocking examples of our culture being invoked by our soldiers in Iraq. Imagine that, our soldiers evoking our culture to describe war.
Still, the notion that games should be restricted is accepted elsewhere. New Zealand, Brazil, Germany and several other nations have outlawed some games.
They are also restricted in countries like China, too. However, the article doesn't note some other censorship characteristics. Germany outlaws all media (including games) that depict Nazism in particular ways, something our First Amendment wouldn't allow. New Zealand's Office of Film and Literature Classification has outlawed some movies as well.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Games

July 01, 2004

Everybody* Should See This Film (*Age 17 and Below Must Be Accompanied by a Parent or Guardian)

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Posted by Ernest Miller

I'm not a fan of Michael Moore. I have no plans to pay money to see his new film, Fahrenheit 9/11. I have even written that he is a "free expression hypocrite." However, I think it sad that the MPAA has banned the film from being advertised with a quote from film critic Richard Roeper (Theaters hike security for Moore's documentary):

The R-rating for "Fahrenheit" continues to draw attention to the controversial movie. Prior to its release, the film's distributors, Lions Gate Films and IFC Entertainment, unsuccessfully fought the MPAA's decision to give "Fahrenheit" an R-rating and Moore publicly blasted the decision saying that teenagers are among the people who should be allowed to see the film in order to see what war is really like.

Then this week, the MPAA banned a quote by film critic Richard Roeper from the movie's advertising materials in which he stated that: "Everyone in the country should see this film!" According to the MPAA, calling for "everyone" to see the film is in violation of the movie's R-rating.

This is asinine. Of course, the MPAA may feel pressured to enforce their "voluntary" rating system in order to keep Washington's decency Nazgul off their back. Herewith, some other potential blurbs for the film that will satisfy the idiots who fear the terrible consequences if teenagers go see this movie unaccompanied:
  • Everyone should see this film (with a parent or guardian).
  • If you're old enough to be drafted, you should see this film.
  • If you're old enough to vote, you should see this film.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression

FCC to Fine Only Viacom for Broadcasting Indecency - Why?

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Posted by Ernest Miller

Reuters is reporting that the FCC is going to fine Viacom $550,000 for Janet's nipple flash on the SuperBowl (Jackson Breast Flash May Get $550,000 Fine-Source). Jeff Jarvis notes that this would mean Janet completely topless would rate a million (The Daily Stern: The million-buck boobs). Ba-dump-bump. But, seriously folks, the decision isn't final and the Commissioners still have to vote on it. What intrigues me, however, is that the fine lawyers at the FCC apparently have argued that the 20 stations owned by Viacom should pay the maximum fine allowable, but the stations that aired the incident but were not owned by Viacom pay nothing. I have a feeling that at least one of the commissioners will complain about that, but let's think about possible reasons for that distinction:

  • People are less offended when indecency is broadcast by community smut peddler, instead of national smut peddler.
  • Statement by Commission that, "The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area," just a lie to trick unwary media conglomerates into slipping up.
  • FCC Chairman Michael Powell has changed his mind, there is not one First Amendment, but two. One for media conglomerates, another for local affiliates.
  • Local affiliates aren't responsible for what they broadcast. They're just there to collect the checks.
  • FCC clumsily making up for increased media concentration by fining only concentrated media.
  • "They can't fine us all." Local affiliates were right, FCC administratively unable to fine all 180 local affiliates, too much paperwork.
  • Ooops. FCC thought they had already allowed all media to concentrate in single company. Didn't realize there were still local affiliates.
  • It's arbitrary. "We're the FCC. ALL our indecency rulings are arbitrary. What are you going to do about it, huh?"
  • Permitting local affiliates to broadcast indecency without fines will make them more competitive. Supports FCC policy goal of increasing local media diversity.
  • No one was actually watching SuperBowl on the 180 local affiliates that broadcast it.
  • FCC upset that Viacom subsidiary Paramount Pictures has ruined Star Trek franchise.
These are just a few of the possible justifications. Feel free to make up your own. The FCC will.

Comments (6) + TrackBacks (0) | Category: Freedom of Expression | Oddities | Telecomm

June 29, 2004

First Thoughts on Ashcroft v. ACLU

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Posted by Ernest Miller

Today, the Supreme Court, with a 5-4 decision, upheld a preliminary injunction preventing enforcement of the Child Online Protection Act ("COPA"), codified at 47 USC 231. Basically the law requires websites that sell material that is "harmful to minors" to implement some sort of age verification, like a credit card check on pain of criminal and civil penalties. The history of the case is slightly convoluted with two apellate decisions and this second visit to the Supreme Court. Suffice to say that, simply, the case will now return to the district court to be decided on the merits. My First Amendment guru, Yale Professor Jack Balkin has a very nice short summary (COPA sent back for retrial). Or, you can read the 41-page decision for yourself, here: Ashcroft v. ACLU [PDF].

This is the third time that an internet censorship case has come before the Supreme Court (not counting the library filtering case) and there are still a number of very interesting aspects to be dealt with. SCOTUSBlog looks at one issue with a posting under the prurient title: Sex, the Internet and congressional frustration. The frustration of Congress, and of Breyer's dissent, is that Congress wrote COPA specifically in response to the Court's decision in the first internet censorship case, and the Court is saying it still isn't good enough Reno. SCOTUSBlog believes that the majority's decision is a "broad hint ... that the lawmakers may be doomed to frustration if they try again."

UCLA Law Professor Eugene Volokh considers one particular aspect of Breyer's views (in the dissent) on the definition of obscenity ("Prurient interest"). Volokh notes that Breyer's definition of "prurient interest" is much broader than previous definitions, "it simply seeks a sexual response."

See Professor Larry Solum for a good roundup of media and commentary (Legal Theory Blog: Ashcroft v. ACLU).

More on Breyer's understanding of obscenity below, including why Breyer makes the case for a novel "least restrictive means." Read on ...

...continue reading.

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June 27, 2004

Prosecutors Threaten Child Porn Legal Defender

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Posted by Ernest Miller

The Cleveland Plain Dealer (reg. req.) reports a disturbing story regarding a lawyer who serves as a defense expert in child porn cases (Ex-prosecutor now toppling porn cases). The defense expert, a former prosecutor,

has developed a computerized courtroom exhibit that he uses to demonstrate how, with a $650 PhotoShop software program, adults can be digitally morphed into appearing as if they are children, and vice versa.
The reason this is relevant is because the Ohio law requires that:
a prosecutor must prove that a digital portrait of suspected child pornography is, in fact, a picture of a child. To meet that requirement, the image must be authenticated as a child and not an adult digitally enhanced to look like a child.
This is becoming a bigger and bigger issue, as I've noted (Volokh on the Future of Virtual Pr0n). The leading case on the issue is Ashcroft v. Free Speech Coalition, which threw out a Federal law that criminalized pornography that only looks like child porn, but was made with adults or virtual actors.

What's upsetting about this story is that Federal and state prosecutors are threatening this defense expert:

"People from the prosecutor's office have called to warn me: 'Dean, watch your back. They don't like what you're doing with digital imaging,' " Boland said. "I'm telling the truth and they don't like it. They want me to shut up. I've been in hypersensitive siege mode ever since I got threatened with arrest in Oklahoma."
Threatened with arrest?!? Indeed,
A judge is expected to rule on Tuesday in Oklahoma, where federal prosecutors considered arresting Boland in April after an explicit courtroom demonstration. Some of the images involved what appeared to be children engaged in sexual acts, which angered prosecutors.
Well, that's the freakin' point isn't it? That is, people can make images that appear to be children engaged in sexual acts, but aren't children. How can you conclusively demonstrate the point in court without showing some of those images and how they may be made? These threats are, as Lewis Katz, a professor at Case Western Reserve University's School of Law, calls them, a "travesty."

This doesn't mean there has to be a huge child porn loophole and all future prosecutions are futile. There is a lot of actual child porn out there. Among other things, prosecutors ought to be developing a database of authenticated child porn and prosecuting those who possess such authenticated child porn.

via Peter D. Junger's Samsara's Blog

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June 23, 2004

Jarvis Decries Increased Indecency Fines; Other Media Silent

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Posted by Ernest Miller

While I've been writing about DRM, Jeff Jarvis has continued to keep track of the FCC/Indecency mess, especially the Senate's passage of a bill that would increase the maximum fines permissible by ten times (The Daily Stern: June 22, 2004). Jarvis is absolutely right, the media (among others) has been remarkably complacent and/or cowardly in fighting this free speech outrage (The Daily Stern: Taps for the First Amendment).

I'll be getting back to the FCC myself, soon.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression

June 22, 2004

Michael Moore - Free Expression Hypocrite

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Posted by Ernest Miller

Michael Moore, who is ever quick to decry "censorship" targeted at himself, is threatening those who criticize him by putting together a libel and defamation "war room," according to this nice piece in Slate (Libel Suit 9/11).

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June 19, 2004

Volokh on the Future of Virtual Pr0n

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Posted by Ernest Miller

UCLA law professor Eugene Volokh poses an interesting hypothetical this afternoon regarding the future of pornography (Guess who'll be in porn movies in a decade or two?):

Within about ten years, there will probably be software that can merge people's photographs and voices with movies that depict someone else. ... But, practically, the most common use of this would probably be for pornography. Consumers would buy the program; get ordinary, nonpornographic photographs of celebrities or of acquaintances; merge the photograph with a pornographic movie; and then be able to watch pornography that "stars" whomever it is they lust after. ... if I were the sort of person whom either acquaintances or strangers would like to merge into a porn movie -- even one they'd only watch by themselves -- I wouldn't be at all pleased by this technology. Even if they watch the movie in the privacy of their own homes, there'd still be something mighty icky about them watching pictures that show me having sex.

I've actually written something along the same lines back in 2002 on LawMeme (The Future of Virtual Kiddie Pr0n and Other Notes on Ashcroft v. Free Speech). I think my example of virtual child pornography is even more disturbing and icky than celebrity porn.

However, I have to disagree with Prof. Volokh. As someone who is (peripherally) involved in the Machinima community, I believe that although pornography will be quite prevalent so will many other legitimate uses. The tools available to the pornographer will be the tools available to the budding film student. I think we are going to see many more non-pornographic uses than not. Yes, people will make pornography, but they will also download comedic scripts and the images of their favorite comedians.

Heck, it may become a significant art form with those who make the script suggesting several actors (or synthespians) for a particular role, but leaving the final "casting" decisions up to the consumer. Why pay for actors if you can direct the script and have the consumers add in the actors that they want later?

In any case, there better be significant legitimate uses, otherwise you are going to have a lot of explaining to do when your spouse/significant other stumbles across the program on your converged media center.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression | Machinima

June 18, 2004

Microsoft - Marketplace of Ideas Only for the US, Not Brazil

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Posted by Ernest Miller

According to Ubercyberlawprof Larry Lessig, Microsoft is threatening Sergio Amadeu, President of the National Institute of Information Technology (ITI) of Brazil, with a defamation lawsuit for comments he has made about Microsoft's business practices (the local ordinance we call the first amendment). According to a translation of the complaint (Microsoft Complaint [PDF]) Amadeu is apparently guilty of:

With purposes still to be clarified, the Defendant, at the condition of President of ITI, gave an intervitew to the magazine Carta Capital, in which he makes reference and imputations of offensive nature to the Plaintiff, using phrases and expressions from which defamation is inferred, under the terms of the article 21 of Statute 5.250/67, as follows:

In defending free software, Mr. Amadeu does not abstain from criticizing Microsoft, accusing the company of a "drug-dealer practice" for offering the operational system Windows to some governments and city administration for digital inclusion programs. "This is a trojan horse, a form of securing critical mass to continue constraining the country".

To Amadeu, this will be a decisive year to win the "strategy of fear, uncertainty and doubt", as he classifies the business model of Microsoft."

Apparently, in Brazil:

The offensive expressions launched by the Defendant at the interview violate the rule of Article 12 of the Press Law, which leads to the application of the aforementioned especial statute whenever there is an excess in freedom of speech and freedom of thought, by means of the dissemination of information.

Read the offending article here: The Penguin Advances [PDF].

As Lessig notes, perhaps this is defamation in Brazil, but this would not be considered defamation in the United States, thanks to First Amendment jurisprudence. I guess Microsoft only believes in the First Amendment when it has to.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression

WSJ - Religious Insufficiently Patriotic Unless God Mentioned

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Posted by Ernest Miller

Well, I wasn't planning on writing anymore about the Preamble vs. the Pledge (True Patriots Recite the Preamble - I'll get back to the regularly scheduled technology, law and policy postings soon), but something in this morning's WSJ's Opinion Journal sort of stuck in my craw (Why the Pledge Matters: "Under God" is the firm link to U.S. security). Ostensibly, this article is in support of the keeping God in government and the Pledge, but it sure seems as if it is a subtle dig at the patriotism and loyalty of the religious. Read on...

...continue reading.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression

June 15, 2004

True Patriots Recite the Preamble

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Posted by Ernest Miller

Yesterday, the Supreme Court dodged a political bullet by refusing to rule on whether the phrase "under God" should remain in the Pledge of Allegiance as led and recited by public school teachers and instead declared that the challenger had no standing (Thank God It's Standing). Today, a Washington Post (reg. req.) editorial declares, Never Mind the Pledge.

But should we ignore the Pledge?

I think not. Though many see the pledge as an expression of patriotism (not to mention a national religiosity), I believe it instills a very poor idea of what this nation is all about in schoolchildren. Not only is the phrase "under God" either meaningless "ceremonial deism" or an affront to our freedom from the establishment of religion, but the whole pledge celebrates values anathema to a democratic people. It seems clear to me that the best solution, the solution true patriots ought to support, is that children recite the Preamble to the Constitution of the United States of America.

Let us compare the two texts:

...continue reading.

Comments (3) + TrackBacks (0) | Category: Freedom of Expression

June 10, 2004

FCC "Responds" on Lack of Profanity in Clear Channel Consent Decree

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Posted by Ernest Miller

As I noted earlier today, there is an odd absence in the compliance plan the FCC agreed to with Clear Channel (Where's the Profanity?). Strangely, while the compliance plan requires Clear Channel to do many things in the event they broadcast obscene or indecent language, there is no corresponding requirements for action in the event Clear Channel broadcasts profane language, which is one of the categories of language the FCC regulates.

I found this odd, so I called the FCC to ask why the apparent oversight. The response I got was thus:

If issues were to arise about the consent decree then the FCC would review them at that time.

Not a "no comment" but it didn't really answer my question as to why the term "profane" was not included in the first place. Nor does the statement really mean anything. Of course if issues arise you should review them. But review doesn't necessarily lead to action. I can review things all day long and not accomplish a thing, except for the "reviewing."

Even if the review determines that the FCC should have insisted that Clear Channel include "profane" language as triggering disciplinary action on Clear Channel's part, there is nothing the FCC can do about it now. The reason is that such a modification would most likely be seen as modifying the agreement to Clear Channel's prejudice, which would mean the admission of Clear Channel's guilt goes away.

Of course, Clear Channel is free to modify its compliance plan, presumably at will, as long as the FCC is notified 30 days in advance. There is no requirement for public notice either:

Clear Channel reserves the right to revise the plan from time to time, provided that the Commission shall be given not less than thirty (30) days advance written notice of any revisions to the plan.

Comments (2) + TrackBacks (0) | Category: Freedom of Expression

Michael Powell's FCC Star Chamber

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Posted by Ernest Miller

As is widely reported, the FCC has settled all existing and ongoing investigations related to the possible broadcasting of obscene, profane or indecent language by radio oligopolist Clear Channel. Read Reuters' report (Clear Channel to Settle Indecency Cases) or the Washington Post (reg. req.) (Deal Erases Pending Charges Against Clear Channel). I've written on one aspect of the settlement (the lack of any mention of profane language in the compliance plan) here: Where's the Profanity?.

Rather than go through the actual order in this post, I'm going to look at what FCC Chairman Michael K. Powell has to say about it in his statement. You can read the order and consent decree yourself here: In the Matter of Clear Channel Communications, Inc. NAL/Acct. No. 200432080140 [PDF]. Or you can skip right to Powell's statement here: Statement of Chairman Michael K. Powell, Re: Clear Channel Communications, Inc. [PDF].

Read on for a line-by-line dissection...

...continue reading.

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Where's the Profanity?

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Posted by Ernest Miller

The FCC just entered a major consent decree with Clear Channel resolving (by terminating) all existing and ongoing investigations into whether Clear Channel broadcast obscene, profane or indecent language. Basically, Clear Channel now has a clean slate for anything that happened before today. In return, Clear Channel is paying a $1.75 Million fine, admitting to broadcasting indecent (but not profane) language, and implementing a compliance plan. Interestingly, however, the compliance plan doesn't mention anything about profane language, although Clear Channel has been absolved of violating restrictions on broadcasting profane language. Why doesn't the compliance plan include anything about profane language? I believe the FCC has some pretty devious reasons.

I called the FCC to ask about this issue and got their answer.
Read about it here: FCC "Responds" on Lack of Profanity in Clear Channel Consent Decree.


On March 18, 2004, the FCC went out of its regulatory way to declare that broadcasting the use of the word "fucking" as an adjective, as in "fucking brilliant," was not only indecent but also profane - a designation unused for many decades (FCC Revives Notion of the Profane). The definition of profane speech provided by the FCC is not terribly clear (Enforcement Bureau - Obscene, Profane & Indecent Broadcasts):

The FCC has defined profanity as “including language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” See Complaints Against Various Broadcast Licensees Regarding Their Airing of the Golden Globe Awards Program, FCC 04-43 (released: March 18 2004) (“ Golden Globe Awards”). In announcing this definition, the FCC ruled that the single use of the “F-word” in the context of a live awards program was profane. The FCC further stated that it, “depending on the context, will also consider under the definition of profanity the “F-Word” and those words (or variants thereof) that are as highly offensive as the “F-Word,” to the extent such language is broadcast between 6 a.m. to 10 p.m. We will analyze other potentially profane words or phrases on a case-by-case basis.”[link and emphasis in original]

But what does this brand spanking new doctrine of profane speech mean, exactly? My first post speculated a bit, and I followed up with some other posts exploring the concept of the "profane" (Howard Stern Should Ask FCC: What is Profane? and Violence is the New Profanity?). Profane speech could possibly incorporate things like blasphemy, hate speech and violence, I believe.

After announcing this new profane speech doctrine, the FCC has had a single opportunity to clarify this doctrine when it issued a massive NAL against a Howard Stern broadcast, but no analysis of profane speech was part of the decision (Howard Stern: Indecent But Not Profane). This is exceedingly strange as the definition of profane speech overlaps a great deal, if not entirely, with the definition of indecent speech. Certainly anything that is indecent is also plausibly profane and one would expect the FCC to make the distinction, being that they were so proud of reviving the doctrine of profane speech just a short, few months ago. Read on...

...continue reading.

Comments (5) + TrackBacks (0) | Category: Freedom of Expression

June 09, 2004

Broadcatching as Political Reform

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Posted by Ernest Miller

Prof. Michael Froomkin had a neat little post last week about the use of highly-partisan movies to skirt campaign finance laws (Movies as a Campaign Finance Law End-Run). The basic idea is to make a partisan movie, such as Michael Moore's virulently anti-Bush film Farenheit 9/11, and then advertise the heck out of it prior to an election. The 30-sec trailers for the movie could be as effective as campaign commercials as anything the candidates and the campaigns "officially" run. As Froomkin notes, this will be a "loophole it will be next to impossible to close."

It is funny, you know. The advent of campaign finance laws have tracked closely with the advent of traditional broadcast mass media. The money is raised for massive television ad buys, not print ad buys or billboards or a whole bunch of other things. I don't think the Democrats lose sleep over the fact that the Republicans can out spend them with regard to Washington Times page buys. But what is the common solution to the television ad problem? All sorts of arcane, loophole-ridden, cynicism-increasing, lack of respect for law fomenting, First Amendment-threatening regulation of how money is to be raised and spent (basically for television advertisements).

I look at this and I'm baffled. If the problem is the need to raise lots of money to run an expensive television-ad based election campaign, maybe the problem isn't campaign finance but the durn fool way we've regulated our broadcast medium. Rather than see the problem as one of campaign finance, why don't we see the problem as one of television regulation? If the major networks weren't bottlenecks and gatekeepers for the most popular medium of all, I don't think we'd have 1/10 the problem with campaign ad buys (and the money raised) that we have now. Read on...

...continue reading.

Comments (0) + TrackBacks (0) | Category: Broadcatching/Podcasting | Freedom of Expression | Telecomm

June 08, 2004

Kerry "Clarifies" His Straddle on Free Speech - Seeking "Middle Ground"

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Posted by Ernest Miller

Last week, I wrote about John Kerry's position on cable indecency (Opponents of Cable Indecency Regulation). I thought his position was a less than ringing endorsement of free speech for cable, merely noting a distinction (however, minor) between broadcast and cable and not definitively opposing censorship of cable.

Well, others might have gotten a bit confused and thought Kerry was actually opposed to regulating cable indecency, so his campaign has issued a clarification as reported by Broadcasting & Cable (Kerry 'Clarifies' Indecency Position):

[Kerry spokesperson] Davis suggested that Kerry was not seeking either a crackdown or a free pass for cable and satellite, but a middle ground.

Well, glad we got that clarified. Although, one wonders how that "middle ground" squares with Kerry's claim that "there are some standards and pretty generally people should know what they are." Perhaps, Kerry could tell us what his standards are and how they differ for various varieties of broadcast technologies. Yeah, like that would happen.

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June 04, 2004

Opponents of Cable Indecency Regulation

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Posted by Ernest Miller

Broadcasting & Cable reports that presumptive Democrat presidential candidate John Kerry has come out, sort of, against indecency regulations for cable television (Kerry Opposes Cable Indecency Crackdown):

"I think there is a distinction between public broadcast and the notions we’ve had historically about family time, family hour -- and what you buy privately and personally," Kerry told C-SPAN in an interview to be broadcast Sunday.

"I am not in favor of government interference and censorship and restriction of what an individual privately can decide to do in their home, in their own space, so to speak," he said, but he did seem to be OK with indecency regulation "where you have children involved, where you have a broader crossection of the public, where there is sort of a sense of family time or hour."

Not quite a ringing endorsement of free speech. Yes, he sees a distinction between cable and broadcast, but if there are "children involved, where you have a broader crossection of the public," then regulation would be okay, apparently. Perhaps someone should let him know that it isn't only the rich who have cable today, that some 85% of Americans (a broad crossection of America and many of whom are children) get television via cable. Nor does Kerry believe there has been an overreaction to Nipplegate: "there are some standards and pretty generally people should know what they are." Yeah, it would really be nice to know what the standards are. Kerry also seems to be implying that the crackdown on Howard Stern is justified, that it is not part of an overreaction.

Unsurprisingly, the libertarian CATO Institute's Adam Thierer isn't afraid to come out strongly against cable censorship in the National Review (A PG Tony Soprano). UCLA Law Professor Stephen Bainbridge completely agrees (I Want my Sopranos Uncensored).

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Attacking Violence on Television

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Posted by Ernest Miller

The cover story for this week's Broadcasting & Cable is about the FCC's coming crackdown on violence in broadcast and possibly cable (Congress and FCC Take Aim):

Under orders from leaders of the House Commerce Committee, FCC Chairman Michael Powell by the end of the year will start investigating whether the commission should restrict onscreen violence. Cable can't count on immunity either. Growing ranks of lawmakers say cable must do more to make sure that children aren't exposed to potentially traumatizing content.

It should be noted that these lawmakers are quite bi-partisan, including leading members of both parties. Of course, the FCC has an important role to play as well.
At the FCC, the TV-violence inquiry will focus on whether the government can limit violent programs without violating free-speech rights. If those constitutional issues can be resolved, then the FCC must decide how tough the limits should be.

Unfortunately, there is no clear law in this area. One can plausibly argue that it is as permissible to regulate violent broadcasts to protect children as it is to regulate indecent broadcasts. From an institutional perspective, particularly under the current censorship-happy regime, I can't imagine a report that says, "Nope, we can't regulate violent programming." Heck, I rather expect that the FCC will discover that it already has the power to regulate violent programming under their new definition of what constitutes profane expression (FCC Revives Notion of the Profane).

It may be that the one of the only major problems with regulating violence is the unclear impact it has on children. Not to worry, though, Sen. Lieberman will fix that:

Because so much of the data is inconclusive and sometimes contradictory, Lieberman calls it a "patchwork" of data. "We can do better than that," he says.

Glad he already knows how the scientific studies will turn out.

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May 28, 2004

Who Says Videogames Aren't Political Speech?

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Posted by Ernest Miller

According to Xinhuanet, the Chinese government has banned a computer game for "distorting history and damaging China's sovereignty and territorial integrity" (Swedish computer game banned for harming China's sovereignty):

Moreover, "Manchuria", "West Xinjiang", and "Tibet" appeared as independent sovereign countries in the maps of the game. In addition, it even included China's Taiwan province as the territory of Japan at the beginning of the game.

Nor is this the first videogame banning. Other games banned include Project IGI2: Covert Strike ("The game was accused of intentionally blackening China and the Chinese army's image as a freelance mercenary fights in [China]") and Command and Conquer Generals: Zero Hour Expansion ("Also for smearing the image of China and the Chinese army").

via Techdirt

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Games

They Fuck You Up, The F-C-C; They May Not Mean To But They Do

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Posted by Ernest Miller

A new edition of the Collected Poems of Philip Larkin, one of Britain's most celebrated modern poets, is issued and Slate discusses the controversial new book; controversial, that is, for the editorial decisions made (The Poet of Dirty Words). Rather than start with the editorial controversy, however, we live in an America where the review must start with a note that one of the English language's most famous modern poems and much of the work of a great modern poet cannot be recited during the day on radio or television thanks to the FCC.

They fuck you up, your mum and dad,
They may not mean to but they do
They fill you with the faults they had
And add some extra just for you.

But they were fucked up in their turn
By fools in old style hats and coats
Who half the time were soppy-stern
And half at one another's throats.

Man hands on misery to man.
It deepens like a coastal shelf.
Get out as early as you can
And don't have any kids yourself.

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May 26, 2004

China Pushing Digital Set Top Boxes

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Posted by Ernest Miller

Asia Media reports that the Chinese government will be subsidizing digital cable set top boxes (CHINA: Subsidies to boost digital TV in mainland). There are a number of reasons to do this, which the article notes, but one that goes unremarked: the increased ability of the government to control the home media center. In the US it is the content/cable/software companies that seek to control, in China it will be the government in addition to those.


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FCC Indecency Crackdown Kills Live Shows at College Radio Station

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Posted by Ernest Miller

The Rochester Democrat & Chronicle reports that the University of Rochester's college radio station, WRUR, will be suspending all live broadcasts this summer due to the FCC's indecency crackdown (No more live-local content for WRUR):

”The primary focus is the summer, when we don’t have a lot of people here” to monitor and supervise the radio station, said Dean of the College William Scott Green. “It’s basically a response to the heightened sensitivities and the broadcast climates. This is a way to make sure … we’re careful.”

No more call-in local discussion shows, I guess. No more live coverage of political rallys. More pre-recorded DJs ... just what broadcast radio needs.

Thanks, Matt!

UPDATE The Lansing City Pulse has a similar article (Local broadcasters treading lightly during FCC crackdown:

At MSU student radio station WDBM (88.9 FM), it has always been appropriate to play music that might be controversial during “safe harbor hours” between midnight and 6.

That recently changed.

“Safe harbor hours are no longer considered safe,” student station manager Ed Glazer says when asked how The Impact, as the station is known, has been affected by a recent crackdown on broadcast indecency by the Federal Communications Commission.

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Violence is the New Profanity?

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Posted by Ernest Miller

This news item from Broadcasting & Cable is nearly a week old, but it shows that the FCC wants to extend its control over free speech beyond sex (FCC Will Look at Violence). Interestingly, the study will focus on "the impact of TV violence on children." Note, the study won't be about the impact of broadcast TV violence, but TV violence alone, which leaves a lot of leeway for taking a look at a bunch of things like cable and etc.

via Lost Remote

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Telecomm

May 24, 2004

Disney and the Pope in Agreement: Free Speech Too Dangerous

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Posted by Ernest Miller

Jeff Jarvis reports two fairly depressing news items today about major cultural forces supporting increased regulation of free speech (The Daily Stern: 24 May 2004).

Multichannel News has truly disturbing information about Disney - they are supporting the application of indecency regulation to cable (Disney’s In Indecency Mix). Along with Jeff (and FCC Chairman Michael Powell before the pod people got him), I agree that it is a constitutional travesty that broadcast has fewer First Amendment protections than other media. Still, the loophole that allows regulation of broadcast wouldn't seem to apply to cable and satellite, but who knows?

As a copyfighter I sometimes joke about how Disney is evil. This time it isn't a joke. The Disney corporation is acting evilly in supporting further government regulation of media indecency.

The other cultural force supporting media regulation is the Pope, according to this report in the Scotsman (Pope Calls for Regulation of Media):

“It’s a task that likewise involves public institutions, called upon to enact regulatory procedures aimed at ensuring that the means of social communication are always respectful of the truth and of the common good,” the pontiff said.

Why am I not surprised? And who will decide what the common good is? The Church, which has such an unblemished record?

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Is the FCC the Appropriate Agency to Regulate Speech?

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Posted by Ernest Miller

John Fund, in his weekly Opinion Journal column, has a fairly balanced piece on the broadcast indecency debate (Don't Touch That Dial?). I'm not sure if it is intentional, but many of the arguments in favor of indecency regulation are fairly absurd. For example, he quotes conservative film critic Michael Medved:

Michael Medved, a nationally syndicated host based in Seattle, responded that his fellow conference goers were "crying wolf" and pointed out that "there isn't a person in this room who doesn't favor some standard for broadcasting, whether it be against kiddy porn or animal snuff films."

So, apparently, you shouldn't be concerned by the FCC's censorship unless you are a defender of child pornography and voyeuristic animal torture. Is this the quality of Medved's argument? In any case, I am not one who believes in obscenity law, but I don't think we need obscenity law to outlaw child pornography or punish those who engage in animal torture.

Fund does call for some restraint by broadcasters:

The parishioners of New York's St. Patrick's Cathedral, whose church was used as a staging ground for a live sex act broadcast on radio, shouldn't have been subjected to that frontal assault on their values.

Would the parishoners have been any happier if the publicity stunt had been filmed for sale via the Internet? Would it have been fine with Catholics if it had been broadcast during the indecency safe harbor (10pm - 6am)? I doubt very much that there would have been any lesser outrage if a magazine had pulled such a stunt. This, of course, raises the question of who should be charged with punishing such infractions, if anyone. Should a federal agency primarily charged with regulating spectrum be the first choice do you think? Or can we possibly think of a more appropriate agency, if any, to deal with sex in churches?

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May 21, 2004

Practical Memetics - The Science of Pornography Addiction and the First Amendment

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Posted by Ernest Miller

Posted in accordance with US Food, Drug and Memetics Administration Labeling Requirements
Warning: This blog posting may be dangerously persuasive to pregnant women, those with weak backs and/or heart conditions.

Ok, so the science here isn't particularly compelling, but the Deseret News reports that an anti-pornography group is seeking scientific proof of pornography addiction through magnetic resonance imaging (Group trying to snuff out porn). The group, the Lighted Candle Society, has a poorly titled press release: Major Anti-Pornography Program Scheduled for 12 May in Salt Lake City.

It isn't entirely clear what the MRI brain scans will prove, exactly, but the purpose is clear. Should the researchers prove that pornography is addictive, the Lighted Candle Society will then take that proof into court to sue the pornography industry into submission much as smokers (or their beneficiaries) brought a litigation campaign against Big Tobacco.

Frankly, I don't think that MRI scans can prove what the LCS intends to prove. But what if similar scans could? Is it entirely outside the realm of possibility that science might someday allow us to gauge, at least to a limited extent, the physical response engendered by particular memes? What impact would this have on First Amendment law? Would it be permissible, despite the First Amendment, to censor particular memes that were shown to have scientifically proven adverse effects, much as we outlaw particular drugs? What levels of proof of harm would be needed? I suspect we may eventually have to answer these questions.

Of course, the LCS should be careful what it asks for ... religion itself seems to be a particularly pernicious meme.

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May 17, 2004

Yet Another FCC Decision Regarding the Pulling Capacity of the Penis

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Posted by Ernest Miller

Last Friday, the FCC affirmed a fine against a broadcaster for violating the FCC's indecency regulations. Read the press release: Commission Affirms Forgeitture Against Entercom for Violations of Indecency Rule [PDF]. Read the decision: In the Matter of Entercom Seattle License, LLC, Licensee of Station KNDD(FM), Seattle, Washington [PDF].

The interesting thing about this decision is that it stands for the proposition that mentioning "sexual organs" can get you in trouble, even if the discussion regards non-sexual matters - "the Bureau specifically ruled that the indecency definition encompasses references to sexual organs, separate and apart from sexual activities, where those references are patently offensive." In this case, the verboten language included "material concerning whether and how a penis could be used to lift or pull objects."

The decision also emphasizes the FCC's claimed ability to view a work not as a whole, but as isolated elements:

Although Entercom argues that the complained-of material includes “numerous traffic reports, celebrity new items, concert updates and other news related breaks[…that] ultimately diluted the segments’ overall focus on the pulling capacity of the penis,” the fact that the broadcasts repeatedly returned to the topic demonstrates a persistent focus on the male sexual organ and removes any doubt that this material was patently offensive. [footnote omitted]

Of course, this decision isn't enough for some of the Commissioners...

...continue reading.

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Public Profanity vs Broadcast Profanity

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Posted by Ernest Miller

Last Friday, the Duluth News Tribune ran an AP wirestory about a man cited for carrying an "F U G W" sign when President Bush's motorcade passed through his town (Man fights citation for carrying anti-Bush sign). Professor Eugene Volokh rightly dissects the illegality of the police citation and their excuse for it (Public profanity (or apparent profanity)). Volokh believes that the police have not been properly trained in the law, "If the department taught the officers that the law bans public profanity on signs, then it taught them wrong. Thirty years after Cohen, there's no excuse for police departments to have their officers arrest people for carrying allegedly profane signs in public."

Volokh is right, but one might be a little easier on the police. After all, the quite public crackdown on radio and television indecency might be just a little confusing. I can see your average police officer befuddled by the fact that it is legal to hold profane signs in public where children might see them, but heaven forbid you should use profanity on television. Perhaps the police were trying to keep the sign from being accidentally broadcast on television.

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May 06, 2004

Cuz, You Know, They Said They Would Take Their Ball and Go Home

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Posted by Ernest Miller

The main justification for the broadcast flag is that without some form of protection broadcasters won't provide high value content on HDTV. See, In the Matter of: Digital Broadcast Content Protection [PDF]:

Content owners and broadcasters uniformly assert that DTV broadcast content must be protected and that, in the absence of some protection mechanism, high value content will be withheld from broadcast television and migrate to pay services.

Okay, let's skip for the moment the fact that this assertion doesn't make a lot of business sense for the broadcasters, that the broadcast flag won't stop HDTV distribution on the internet anyway, that the content producers haven't withheld content from other distribution channels (DVDs) that allow for massive internet redistribution, there is no definition of what is "high value content" (Average Joe Millionaire's Apprentice Big Brother Marries an Extreme Makeover Survivor on Temptation Island?), that the broadcasters make no promises to provide such content even if there is a broadcast flag, and simply note that the FCC has rather gullibly accepted this assertion. If the broadcasters said it, it must be true.

Now, some CBS News stations are claiming that they will stop covering live news outside the so-called safe harbor for indecency Some CBS Affils Could Drop Live News:

CBS affiliates are telling the Federal Communications Commission that unless it changes its ruling about profanities on-air, many will have to stop doing news outside of the 10 p.m.-6 a.m. safe harbor for indecent speech.

The affiliates said, it must be true. The FCC must therefore relax it standards for indecency, unless they want to destroy local, live news.

Comments (1) + TrackBacks (0) | Category: Broadcast Flag | Freedom of Expression

How to Heckle Veto the News

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Posted by Ernest Miller

If you don't want it on TV, write the work "FUCK" on your head, see, and that won't get on TV, right?
- Abbie Hoffman, Yippie Workshop Speech, 1968

The LA Times (annoying reg. req.), among others, reports that CBS News stations are claiming that they may have to eliminate live local news coverage if the FCC doesn't relax its jihad against indecent and profane broadcasts (Profanity Rules Bother News Shows):

The CBS affiliates said in their filing with the FCC on Tuesday that if Congress passed a law to revoke the licenses of repeat offenders of indecency rules, as some lawmakers have proposed, stations might be unwilling to take the risk of airing any live news between 6 a.m. and 10 p.m., when the FCC says children are likely to be watching.

The original concept of the "heckler's veto" is that if a heckler threatened violence against a speaker or in general it would be legal for the government to prevent the speech in order to prevent the threatened violence. A heckler, therefore, would be able to control what can or cannot be said by selectively threatening violence. In other words, a heckler would have an effective veto over otherwise free speech. Luckily, legislative schemes that permit a "heckler's veto" are unconstitutional. Read on...

...continue reading.

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May 05, 2004

When is Indecency Regulation "Censorship"?

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Posted by Ernest Miller

Reuters is carrying a wirestory in which FCC Chairman Michael Powell claims that the FCC's indecency regulations are not censorship (Oxygen Cable TV Boss Decries FCC's 'Censorship'):

"I don't think we should use the word indecency; we should call it what it is: censorship," [Oxygen Media Inc. CEO and founder Geraldine] Laybourne said Tuesday during one of the show's panel discussions.
"I don't agree with that," Powell told reporters after his dialogue. "For 70 years, the country has had limits on broadcast television. To me censorship is prior restraint, and I don't think anybody has been involved in that limitation on content."

But Powell can't be making sense, can he? For example, Jeff Jarvis agrees with Laybourne as would most people when confronted with Powell's dissembling distinction (The Daily Stern: May 05, 2004). Read on for my answer ...

...continue reading.

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May 04, 2004

FCC Receives Numerous Complaints About Oprah Show

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Posted by Ernest Miller

Howard Stern has been the FCC's indecency whipping boy for some time. After the latest series of fines, however, he asked his listeners to complain to the FCC about an episode of Oprah's talk show that included rather graphic descriptions of sex acts. The Smoking Gun has received copies of more than 1600 complaints about that episode thanks to a FOIA request (FCC Swamped With Oprah Indecency Complaints). It is impossible to know which complaints are real, but many of them are downright hilarious:

I had just returned with my 3-year-old twins from Bible day camp when I turned on the show ... Tell me, Mr. Powell and Mr. Copps: How would you explain the concept of a "tossed salad" to your kids?
The Oprah show ... was so offensive that my child's head literally exploded. Please ban free speech so this never happens again.
I just wanted to say how much I appreciate all your hard work trying to take down such evils as Howard Stern.... next, please, oh please, go after that Mother of Harlots, Oprah....I will send a list of books next that I think you should look into.
I am writing to you as a very concerned elementary school teacher ... While watching this program, all I could think about were my 3rd grade students home from school, viewing these vulgar conversations about sex: at 4:30 p.m.! .... In teaching government to my students, I'm finding it very difficult to be honest. How do I teach the notion of "Freedom of Speech"???
Recently on the Oprah Winfrey Talk show ... acts of sexual nature were described in detail without the presence of a medical doctor ... Thank you for your time, ... Registered Republican

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April 30, 2004

F*cked by the F*CC

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Posted by Ernest Miller

Jeff Jarvis continues his unstopple FCC indecency coverage here: The Daily Stern: 04/30/2004. Of note today is his cover story on the FCC's apparent vendetta against Howard Stern in The Nation (F*cked by the F*CC). Yours truly is quoted.

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April 28, 2004

The Broadcast Flag vs. Indecency Enforcement

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Posted by Ernest Miller

So, I've been doing a lot of thinking about the FCC's indecency enforcement lately, and it just struck me how the broadcast flag will inhibit enforcement of the prohibition on obscene, indecent, or profane depictions on broadcast.

According to the FCC's page for indecency complaints (Obscene, Profane & Indecent Broadcasts), complainants are asked to provide the following:

Information regarding the details of what was actually said (or depicted) during the allegedly indecent, profane or obscene broadcast. There is flexibility on how a complainant may provide this information. The complainant may submit a significant excerpt of the program describing what was actually said (or depicted) or a full or partial recording (e.g., tape) or transcript of the material.
In whatever form the complainant decides to provide the information, it must be sufficiently detailed so the FCC can determine the words and language actually used during the broadcast and the context of those words or language. Subject matter alone is not a determining factor of whether material is obscene, profane, or indecent. For example, stating only that the broadcast station “discussed sex” or had a “disgusting discussion of sex” during a program is not sufficient. Moreover, the FCC must know the context when analyzing whether specific, isolated words are indecent or profane. The FCC does not require complainants to provide recordings or transcripts in support of their complaints. Consequently, failure to provide a recording or transcript of a broadcast, in and of itself, will not lead to automatic dismissal or denial of a complaint. [emphasis in original]

Although a recording is not strictly required, obviously it would be very useful to have one when making a complaint. "Did I just hear/see what I thought I heard/saw? Let's go to the tape (or more likely, the hard drive)." However, if copying the broadcast is prohibited (as enforced by the FCC itself), it will be very difficult for average citizens to make recordings to make transcripts and to bolster their complaints about indecency.

I can imagine broadcasters inhibiting copying of "racy" shows in order to reduce the possibility of being fined for indecency violations. Heck, I can imagine broadcasters having "do not record buttons" in place of "bleeping." That way, when someone displays something on broadcast the FCC might think they shouldn't, the broadcaster can ensure that no copy is made by the average citizen.

Of course, who expects the FCC to be consistent and have coherent policies?

Comments (5) + TrackBacks (0) | Category: Broadcast Flag | Freedom of Expression

April 23, 2004

A New Pentagon Papers Case - Newspapers, Blogs and the Diebold/Jones Day Memos

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Posted by Ernest Miller

On April 20th, the Oakland Tribune published a story regarding Diebold's alleged use of uncertified voting software in violation of California state law (Diebold knew of legal risks). The article cited and focused on internal legal memos from the Jones Day law firm showing that Diebold's own lawyers had warned of some of the possible illegalities. Online, the Oakland Tribune posted the documents in addition to the article. That afternoon, the Trib's parent company and the reporter were sued by Jones Day to have the documents returned. The judge ordered the documents returned, except for those already published on the internet (Judge: Tribune must turn over legal memos):

Jones Day's lawsuit claimed the documents were protected under California law as attorney-client communications and attorney work product, and that the defendants "improperly, and possibly illegally, secured, maintained possession of and refused to return" the documents despite the firm's demands.

Read on...

UPDATE More memos here: The inside story on California Diebold decertification -- Next: Ohio?

...continue reading.

Comments (2) + TrackBacks (0) | Category: E-Voting | Freedom of Expression

April 14, 2004

FCC's Latest Mancow Decision: Discrimination Due to Lack of Evidence

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Posted by Ernest Miller

Recent discussions concerning the FCC and indecency have focused on the record fines levied against Clear Channel for broadcasting the Howard Stern show. I've written a bit about this (Howard Stern: Indecent But Not Profane), but follow Jeff Jarvis for the full coverage. April 8th's The Daily Stern: Bulletin is a good place to start.

However, another indecency fine was affirmed the same day Stern was hit. The decision regards two shows by another popular target of the FCC's censorship, Mancow, who broadcasts a morning show. The decision is here: In the Matter of Emmis Radio License Corp., File No. EB-00-IH-0401 [PDF]. It has some interesting twists.

Read on...

...continue reading.

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April 13, 2004

Howard Stern: Indecent But Not Profane

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Posted by Ernest Miller

Didn't the lawyers in the FCC's Enforcement Bureau get the memo? Didn't they notice that three weeks ago the FCC announced a shiny new policy of enforcing prohibitions on broadcasting the profane? Apparently not, because their most recent decision on indecent broadcasts since that announcement doesn't consider whether the broadcasts were also profane. Come on FCC ... am I the only one who takes your newly announced policy on profane broadcasts seriously?

Well, you can't blame the FCC lawyers entirely since the Commissioners, who were so pumped by enforcing the prohibition on profane broadcasts against the Golden Globes, haven't done anything about it either. While the Commissioners applaud the size of recent fines and other new policies (such as fining every separate utterance), they seem to have forgotten about enforcing their prohibition on the profane. You would think that the FCC would want to promulgate and apply the new standards as soon as possible, but that doesn't seem to be the case.

As an advocate of free speech, I'm certainly interested in learning what the new standards for censorship are as soon as possible.

UPDATE When asked for the reason that the new policy on profane broadcasts was not addressed in the decision, an FCC representative replied, "I can only say that the NAL was based on the FCC's indecency standard." No further comment was forthcoming.

Read on....

...continue reading.

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April 07, 2004

The Broadcast Flag Treaty - Draft Available

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Posted by Ernest Miller

Well, technically, the treaty is called the WIPO Treaty for the Protection of Broadcasting Organizations, cuz heaven knows they're all faced with extinction. The draft treaty will be discussed June 7-9 by WIPO's Standing Committee on Copyright and Related Rights (SCCR), which will then "decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened." A diplomatic conference can adopt a treaty. The treaty will not go into effect, however, until a certain number of countries have acceded to it. The draft of the treaty is available here: Consolidated Text for a Treaty on the Protection of Broadcasting Organizations [PDF].

This treaty is really a nasty bit of work. It will give broadcasters, not copyright holders but broadcasters, a number of exclusive rights in their broadcasts, such as fixation, reproduction and distribution, whether or not the broadcast is of a public domain work. Moreover, the treaty would require signatories to prevent circumvention of those rights.

Oh yeah, the treaty would also apply to "cablecasters" and the United States (all alone on this one, apparently) wants the treaty extended to cover "webcasters." What exactly constitutes a webcaster isn't entirely clear, perhaps only streaming, perhaps HTTP. While the US is not a signatory to the previous treaty on broadcast, our efforts on negotiating this one indicate we are likely to sign on.

Read on for a look at this monstrosity...

...continue reading.

Comments (4) + TrackBacks (0) | Category: Broadcast Flag | Copyright | Digital Millennium Copyright Act | Digital Rights Management | File Sharing | Freedom of Expression | Internet | Telecomm

April 06, 2004

Diagramming Indecent Language

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Posted by Ernest Miller

Similar to the FCC's broadcast rules for the obscene, profance and indecent, soccer also penalizes those who use indecent language. Depending on the severity of the language used, players may be issued warnings, Yellow Cards or Red Cards. Of course, offensive language depends heavily on context, so how do you determine whether calling the ref a "pratt" is worthy of a warning or Yellow Card? Luckily there is a webpage that has handy Venn diagrams of various uses of language to help guide the budding referee (Bad Language Mapping and Tolerance Levels). Perhaps the FCC would be so kind as to provide similar guidance?

via BoingBoing

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April 05, 2004

A Fond Look Back at the Television Code of 1951

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Posted by Ernest Miller

Jeff Jarvis is doing an excellent job following the FCC's attack on free speech for broadcast. His latest "Daily Stern" report points out the inconsistencies between FCC Chairman Michael Powell's previous statements on broadcast speech regulation and his current stance (The Daily Stern: Sayings of Chairman Powell).

More interestingly, however, Jeff is ripping apart the old, voluntary US Code of Practices for Television Broadcasters (The Daily Stern: The Code). The "Code" was the set of ethical guidelines established in the early days of television for United States television broadcasters, but was abolished in the 1980s. The reason Jeff brings it up again is because the FCC is now pushing broadcasters (and if Commissioner Michael Copps has his way, cable and satellite channels) to adopt a brand new set of "voluntary" guidelines. Many aspects of the old code seem laughable now, but which will broadcasters readopt if pushed hard enough by political pressure? Fifty years from now, which aspects of a new code will look laughably quaint? Some examples of the old code with Jeff's comments:

Attacks on religion and religous faiths are not allowed. Reverence is to mark any mention of the name of God, His attributes and powers.... [Clergy] portrayed in their callings are vested with the dignity of their office and under no circumstances are to be held up to ridicule.
So The Code is explicitly trying to proselytize the nation. And it won't allow us to make fun of, oh, Jerry Falwell, Jimmy Swaggart, Jim Bakker, or hundreds of kiddie-diddling priests.

...continue reading.

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The Speech Powell Should Have Given on Indecency

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Posted by Ernest Miller

Last week, I wrote an annotated version of two recent speeches, one by FCC Chairman Michael Powell and the other by Commissioner Michael Copps, in which they addressed (behind closed doors) the National Association of Broadcasters regarding indecency regulation (FCC Commissioners - No Free Speech Please, We're Americans). Frequent commentator Cypherpunk thinks that I was overly harsh with regard to Michael Powell, who formerly was a strong defender of freedom of speech in broadcasting (Too Rough on Powell).

Rather than simply rebut Cypherpunk, I've adapted Powell's speech to give my version of what he should have said at the NAB meeting.

The original speech is here:
Remarks of FCC Chairman Michael Powell at the NAB Summit on Responsible Programming, The Renaissance Hotel, Washington D.C., March 31, 2004 [PDF].

Read on for my revised version.

...continue reading.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Rating and Filtering | Telecomm

April 01, 2004

FCC Commissioners - No Free Speech Please, We're Americans

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Posted by Ernest Miller

I wish this were an April Fools joke, like Howard Stern's. Yesterday, the Chairman of the FCC, Michael Powell, and Commissioner Michael Copps addressed (behind closed doors) the National Association of Broadcasters on the subject of broadcast indecency. The content of their speeches should be chilling to any advocate of the freedom of expression. For example, Copps is calling to regulate satellite and cable indecency in addition to broadcast as well as insinuating that the depiction of violence is profane (and thus subject to FCC regulation). The speeches are available at the FCC's website and I highly recommend reading both of them, all of them:

Remarks of FCC Chairman Michael Powell at the NAB Summit on Responsible Programming, The Renaissance Hotel, Washington D.C., March 31, 2004 [PDF]

Remarks of FCC Commissioner Michael J. Copps, NAB Indecency Summit, Washington, DC, March 31, 2004 [PDF]

My annotated version of these travesties is below. I found it extremely difficult to excerpt particularly egregious examples of attacks on freedom of speech since the entire content of both speeches (with one small exception) is incredibly hostile to the very idea that speech that offends should be defended. Please see Jeff Jarvis' take on Powell's speech as well (The Daily Stern: Life without Howard).

...continue reading.

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March 26, 2004

Divided 4th Circuit Invalidates Virginia's Internet Speech Regulation Statute

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Posted by Ernest Miller

Yesterday, the 4th Circuit Court of Appeals issued a decision that upheld a district court ruling invalidating a Virginia law aimed at curbing speech on the Internet. Read the decision: PSINet vs. Chapman [PDF]. Read a press release from People for the American Way: Free Speech Victory In Virginia Internet Case. Two district judges were sitting by designation and upheld the lower court decision. Appellate Judge Paul Niemeyer dissented. Unfortunately, this increases the possibility of en banc review in what many consider the most conservative Federal Circuit.

...continue reading.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Internet

March 23, 2004

Howard Stern Should Ask FCC: What is Profane?

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Posted by Ernest Miller

Last Friday I wrote about the FCC's decision last Thursday to begin enforcing their power to regulate "profane" language, something they have not done before (FCC Revives Notion of the Profane). See also this followup by Constitutional law guru Jack Balkin: Hate Speech Codes For Broadcasting?. Jeff "BuzzMachine" Jarvis has been, well, a machine when it comes to posting on this issue. Start with today's "Daily Stern" and just follow the links to previous posts for all the news fit to blog.

Despite all this discussion, however, I am still in the dark as to what "profane" means as the FCC interprets it.

Warning: Highly offensive language used as examples below.

...continue reading.

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March 19, 2004

FCC Revives Notion of the Profane

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Posted by Ernest Miller

In a decision released yesterday, the FCC announced a new doctrine of fining "profane" broadcasts. Although 18 USC 1464 has always given the FCC jurisdiction over "obscene, indecent or profane language," the FCC has never based any fine on "profane" language, preferring to rely on indecency rulings. Given the newness of this interpretation of the law and the vagaries of the definition of "profane," this might be the most far reaching of the FCC's recent assaults on freedom of expression. Could the FCC be getting into the business of regulating hate speech?

Caveat: This decision is in a really vague area of First Amendment law and I've written my thoughts within hours of the decision's release, so my analysis is preliminary.

...continue reading.

Comments (49) + TrackBacks (0) | Category: Freedom of Expression | Telecomm

March 18, 2004

"True Name and Address" Bill for All Filesharers Introduced in Calif

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Posted by Ernest Miller

The LA Times (reg. req.) reports that California state legislators are hauling water for Hollywood once again (Setting a Trap for Net Pirates). The basic idea of the bill is to extend a "true name and address" statute to cover virtually all exchanges of copyrighted audiovisual information. That is, if you send someone a copy of a recording or audiovisual work electronically without also providing your true name and address, you could be fined $2,500 and spend a year in the clink.

Read Assembly Bill 2735 (the Assembly Version): An act to amend Section 653v of, and to add Section 653aa to the Penal Code, relating to Internet piracy.

What is the point of this bill? According to a sponsor:

[State Sen.] Murray [D - Culver City] says the point isn't to take names; his idea is to give state prosecutors, who have no jurisdiction over copyright infringement, a charge they can bring against online pirates.

Hmmmm ... the concept of federal preemption of copyright law comes to mind. One might argue that many states have "true name and address" statutes, but they generally apply only to sales of physical goods. Like copyright law, this proposed law applies to any transfer (outside your home and family), not only sales. If this isn't preempted I'm not sure what would be.

And what is this? Hollywood can't afford to sue people? We citizens of California have to expend precious tax dollars and limited law enforcement resources on copyright enforcement because Hollywood is too darn cheap? With massive statutory copyright damages available as a remedy, there is no excuse for Hollywood not to prosecute copyright infringers directly. Heck, it could even be a profit center.

An Attack on Privacy and Anonymity

Read the EFF press release: California Bill Backed by Hollywood Attacks Internet Privacy. The EFF notes the pernicious effects on children's privacy: "These California anti-anonymity bills would force everyone - including children - to put their real names and addresses on all the files they trade, regardless of whether the files actually infringe copyrights."

There are many more problems with this bill as well. EFF notes that there are no exceptions for fair use. For example, if one emails a friend a copy of a political campaign commericial that includes copyrighted music, I'm a Dole Man comes to mind, you can be fined and sent to jail. Heck, posting and commenting on Janet Jackson's wardrobe malfunction could get you sent to jail.

This is certainly an attack on the anonymity protections of the First Amendment. Unlike commercial "true name and address" statutes, this bill reaches beyond a state's interest in preventing fraud to cover all types of anonymous speech, including speech that is clearly protected by the First Amendment. State Sen. Murray says, "There's one way to maintain your privacy in my bill. That is not to engage in illegal activity." But that is the problem. The bill strips anonymity even when people are engaging in constitutionally protected activities. On this basis alone, I believe it is clearly unconstitutional under the First Amendment.

An Attack on the Creative Commons

Even worse, there is no exception for permission of the copyright holder. So, if I record a song and post it under a Creative Commons license that permits redistribution but reserves commercial use rights, you can go to jail for redistributing it. I mean, really, what more can be said about such an overbroad bill?

We need to have a "true names" bill for politicians. By all rights, State Sen. Kevin Murray should start calling himself State Sen. Hollywood Sycophant.


You can find your California State representatives here: Find Your California State Legislative Representatives. Let them know what you think of these bills.

Comments (0) + TrackBacks (0) | Category: Copyright | File Sharing | Freedom of Expression | Privacy

Freedom of Speech as Distribution is a Good Thing

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Posted by Ernest Miller

Doc Searls has an interesting take on the ongoing FCC indecency brouhaha (Enjoy the obscenery). His points are echoed and emphasized by Jeff Jarvis (The Daily Stern: The real issue). Searls analysis begins:

Ever since we reconceived press and broadcast as "channels" and "media," and their goods as "content," we have understood them, literally, in terms of shipping.

He says this as if it were a bad thing.

When you subsume speech into "content delivery," you reduce it to cargo. It becomes just another deliverable. Packing material. You can abridge its freedoms all you want. (At least on the broadcast side. It's a little harder where printing presses are still involved.)

On the contrary, the more that we treat speech as undifferentiated cargo, the better off freedom of expression is. When everything is cargo you worry more about how it is distributed than the content of the cargo. FederalExpress is a distribution company. They don't really care what is in the boxes they ship (with certain obvious, practical exceptions), they just want to ship them as efficiently as possible. The more the boxes are undifferentiated cargo, the more efficiently they can be shipped.

The most obvious example of this in the free speech realm is the doctrine of common carrier. For example, the telephone network is a common carrier. Consequently, the telephone company doesn't care what the fuck you say on their telephone lines and neither does the government (with certain obvious, practical exceptions).

Searls notes that the government treats printing press speech different than broadcast speech. Why is that? Because they use different means of distribution. The government is regulating the content of speech, but it is doing so because the means of distribution is different. As far as the government is concerned books are undifferentiated cargo (with certain exceptions, such as obscenity and child pornography). As long as I follow the general rules for shipping cargo, I can ship whatever sorts of books I want. This is freedom of expression enhancing.

The internet is another example. Although the government is trying its best to regulate content on the internet, the courts have so far been quite sceptical. The courts have generally held the position that people can ship whatever darn content they want via the distribution channel known as TCP/IP. Bits are bits and we should treat them that way as much as possible.

From a public relations point-of-view, focusing on delivery rather than content also seems best. If we focus the discussion on means of distribution rather than particular, offensive content, we'll probably be better off. Many fewer people are upset by the idea that you can watch porn on cable then see a nipple on broadcast. Rather than argue about the relative merits of letting people see nipples or watch porn, we should be arguing that broadcast as a means of distribution should be treated similarly to cable as a means of distribution and leave the nipples out of it.

Speech as Place

Searls next speeks of freedom of speech with as a mixture of the personal and place:

Speech, as the founders conceived it, was something that happened among people, in society. It had a place: the street, the parlor, the town square, the village commons. Even when published, by a press, it was still personal. Take the example of Franklin's original blog, Poor Richard's Almanac. It was a form of printed speech that grew and spread like a weed on the lawn of the marketplace. But popular as it may have become, it was still "speech" because it was personal. People speak. "Content" doesn't. It's just cargo. And you can regulate the crap out of cargo.
....My point: a bar is a place. Free speech happens in a place. The very presence of a local bar on everybody's radio both offends and threatens the shipping mentality of the mediocracy — a group that includes not only giant mutant transport companies like Clear Channel and Viacom, but also its allied lawmakers and regulators: Congress and the FCC. That's why the latter feel just fine "controlling" what "goes out" through "the media" as if all of it were container cargo.

But what are these places? They are channels for distribution. The sidewalk is a place, sure, but it is a means of distribution too. It is a public place where I can speak to those citizen nearby and the government has very limited means to restrict what I may say through that means of distribution. Today, we don't have physical places, we have virtual channels. If you are reading this, you aren't reading in a particular place, you are receiving this communication through a particular channel, whether HTTP, RSS or something else. Rather than confusing ourselves with imperfect analogies to physical spaces, we should embrace the immateriality of "channels."

You know, container cargo is a great analogy for my point of view. The wonderful thing about the container ship revolution was that ships no longer really had to care about what sort of content they were carrying: electronics in one container, furniture in another, clothing in another, the ship doesn't have to worry about it or care. They just stack the undifferentiated containers. Before container ships you really had to worry about what went next to what and even more regulation was involved.

Nor does speech have to be personal to be worthy of protection. Even impersonal speech is worthy of protection. Indeed, sometimes it is the most impersonal speech that is the most powerful and important. Personal, impersonal ... it isn't the content of speech that we should be concerned with. We should treat all speech the same.

As I've argued previously (It's Freedom of the Press, Stupid), I believe that one of the critical elements of our free speech doctrines is the limitations the First Amendment puts on government's ability to regulate distribution of information. The real problem here is that the government has totally messed up how we should regulate broadcast. I would prefer something based on my formulation:

The government shall neither create nor sustain a monopoly carrier in the distribution of speech that discriminates in what it will or will not carry.


Jeff Jarvis responds (The Daily Stern: PM edition).

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March 17, 2004

Security Know-Nothingism

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Posted by Ernest Miller

I must admit it is very frustrating to read, frankly, ignorant security columns on the op-ed page of America's most prestigious newspaper, the New York Times (reg. req.). Columnist Nicholas Kristof is the culprit this time, with a couple of half-baked security measures (May I See Your ID?). In response I ask Kristof, may I see your security analyst credentials?

The first idea is, as the title gives it away, a renewed call for a national ID card. Argues Kristof:

If the right is willing to imprison people indefinitely and send young people off to die in Iraq in the name of security, then why is it unthinkable to standardize driver's licenses into a national ID?

This is an argument, why?

Hey, I'm not too happy with the imprisoning people indefinitely thing either (at least without, you know, some judicial process), but Guantanamo makes national ID cards a good idea how? And sending troops overseas to war justifies national ID cards at home because...? Let's try that argument again: "If the right is willing to send young people off to die in Afghanistan in the name of security, then why is it unthinkable to standardize driver's licenses into a national ID." Make any more sense?

More than 100 nations have some kind of national ID card. And the reality is that we're already moving toward a government ID system — using driver's licenses and Social Security numbers to prove who we are — but they neither protect our privacy nor stop terrorists. Instead, they simply promote identity theft.

You might think he would have made a stronger case in favor of a national ID card before he brings out the "everyone else is doing it" argument. You know, identity theft is a serious problem. National ID cards solve this how? Many security experts believe that they may, in fact, exacerbate the identity theft problem. A real security expert, Bruce Schneier, wrote, in Crypto-Gram Newsletter - December 15, 2001 - National ID Cards:

Identity theft is already a problem; if there is a single ID card that signifies identity, forging that will be all the more damaging. And there will be a great premium for stolen IDs (stolen U.S. passports are worth thousands of dollars in some Third World countries).

But, whatever, Kristof continues:

At least seven of the Sept. 11 hijackers, some living in Maryland hotels, managed to get Virginia ID cards or driver's licenses, which can be used as identification when boarding planes. Americans routinely travel to and from Canada, Mexico and the Caribbean with just a driver's license.

And I guess that foreigners won't be allowed to get these ID cards and will not be permitted to live in Maryland hotels? Of course, we will have to issue some sort of identification to foreigners ... and we all know how reliable the identity paperwork from foreign countries is. As Scheier notes, "Some of the 9/11 terrorists who had stolen identities stole those identities overseas." Yep, national ID cards will stop that.

Some U.S. officials privately fret that security may depend on a harried immigration officer in Maine who is handed a forged Guam or North Dakota driver's license. One undercover federal study underscored the vulnerability last year by using off-the-shelf materials to forge documents that were then used to get driver's licenses in seven states and the District of Columbia. The forgeries worked in each place attempted.

And having a national ID card will stop people from forging documents to get the licenses how? And I guess that Kristof is guaranteeing that relying on a single national ID card won't lull that harried Maine officer into complacency?

So why not plug this hole with a standardized, hard-to-forge national ID card/driver's license that would have a photo, a fingerprint and a bar code that could be swiped to check whether the person is, for example, a terror suspect who should not be allowed onto a plane?

Yeah, because we know who the terror suspects are and terror suspects are happy to properly register themselves with the government. They also, when asked politely, explain to the airline counter clerk that, yes, someone else packed their luggage and they are carrying gifts for strangers. And from Schneier again, "Biometric information, whether it be pictures, fingerprints, retinal scans, or something else, does not prevent counterfeiting; it only prevents one person from using another's card. And this assumes that whoever is looking at the card is able to verify the biometric."

Schneier summed up the national ID issue best I think:

I am not saying that national IDs are completely ineffective, or that they are useless. That's not the question. But given the effectiveness and the costs, are IDs worth it? Hell, no.

Kristof's other concern is with the availability of instructions for creating weapons of mass destruction:

The other area where I'd like to see a tougher approach has to do with "cookbooks" to make anthrax, sarin and other chemical, biological or nuclear weapons. Over the last few years, I've collected a horrifying set of booklets, typically sold at gun shows or on the Internet, detailing how to make mustard gas, VX, anthrax or "home-brew nerve gas."
....Sure, I cherish the First Amendment. But remember what Alexander Bickel, the eminent First Amendment scholar, told the Supreme Court when he argued on behalf of this newspaper in the Pentagon Papers case. Pressed by the justices on whether publication could be blocked if 100 Americans would certainly die as a result, he reluctantly agreed: "I am afraid that my inclinations to humanity overcome the somewhat more abstract devotion to the First Amendment."

Funny quote from Bickel, that. Why, if I knew for certain that Kristof's column would lead to certain death for even one person, let alone 100, I would have to agree with Kristof that "In these exceptional circumstances, we are — I hate to admit it — better off banning books."

Now, whether or not it should be legal to publish information about making WMDs is a serious question and one that shouldn't be addressed lightly. But lightly, in a few paragraphs, is how Kristof deals with it. He couldn't even write an entire column on the issue? There are many questions he doesn't even raise, such as, how and where do you draw the lines on such information? Is a recipe for ricin bannable? What about flight simulator software? What about dual-use items?

Maybe, for certain types of exceptional information, we should have more control. But to simply come out and say, "we are ... better off banning books" is not a terribly compelling argument by itself. I am surprised that the New York Times is the source for this perfunctory argument in favor of censorship.

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Freedom of Expression | Privacy

March 15, 2004


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Posted by Ernest Miller

The New York Times (reg. req.) reports on an amazing research finding - those who buy highly partisan books are likely to buy more highly partisan books! At least that is all I was able to get out of the article which hypes a rather pedestrian study (Study Finds a Nation of Polarized Readers). The article reports on a recent study by social networking guru Valdis Krebs. The study can be found here: Divided We Stand... Still. Would it kill the NY Times to include a link or URL? This study is a followup on an earlier report (Divided We Stand???) as well as a white paper on book networks (The Social Life of Books). From the study the NY Times is referring to:

From the New York Times Bestseller List, I selected political books as starting points for 'snowball sampling'. Two books are linked in the network if they were purchased by the same person -- "Customers who bought this book also bought: ". Many of the books have changed from last year but the overall pattern is the same. The pattern reveals two distinct clusters with dense internal ties. These political books are preaching to the converted. The extreme book titles on both sides reveal a focus on hate, instead of debate.

While interesting, just how surprising is this finding? First, the political books are selected from the New York Times Bestseller List. Not to knock bestseller lists, but what sort of books make it to the top? I doubt that audience-challenging, even-handed books of any complexity are likely to compete with simple-minded polemics that cater to existing prejudices.

Of course, if you are in market for buying partisan polemics, are you really interested in even-handed books? I would think it is sort of a self-selecting sample. That isn't the way Krebs looks at it though:

(Of course, it is always possible, he [Krebs] concedes, that undecided voters aren't reading political books at all, that they simply "can't stomach either side.")

My centrist political views may not be the norm, but I'm certainly not unique. I'm interested in real debate about issues, not simply confirmation of my own point of view. Consequently, I will no more spend money on Dude, Where's My Country? then on Deliver Us From Evil. Let's face it, most of these books are crap. All the rhetorical fallacies are there: straw man arguments, ad hominem attacks, and the ever-popular argumentum ad odium (argument directed to hatred), among others. Why would someone who is interested in honest debate be interested in these books? Maybe undecided voters are reading political books that, while less popular, are not partisan polemics.

Speaking of rhetorical fallacies ...

Mr. Krebs, who got similar results when he conducted the same experiment last year, calls this pattern the "echo chamber" effect: for the most part, he found, buyers of liberal books buy only other liberal books, while buyers of conservative books buy only other conservative books. This finding appears to buttress the argument made by Cass Sunstein, a law professor at the University of Chicago, in his influential study "" (Princeton University Press, 2001) that contemporary media and the Internet have abetted a culture of polarization, in which people primarily seek out points of view to which they already subscribe.

Does this study really buttress the argument of Cass Sunstein in I don't think so. Sunstein was complaining about the potential of too much personalizing of sources of information through the internet, such as a "daily me" newspaper. His concern was with new technologies, in particular, their potential for individual customization. I don't really recall Sunstein concerned about dead tree media. Now, it may be that internet polarization (even assuming such a thing) is increasing polarization in other media, but this study provides absolutely no evidence of this fact. Call me crazy, but I rather suspect that partisan political polemics through the ages have mostly appealed to partisans and were seldom purchased by the partisans on the other side of the argument. For example, I don't think that many copies of the abolitionist The Liberator sold in the antebellum South.

Unfortunately, we don't have Amazon's databases for much of our history. If similar databases do exist it would be interesting to see if they show a similar pattern. I, for one, would be most surprised if they showed that McGovernites were frequent purchasers of Nixonian apologias.

Of course, if the study does support Sunstein's argument, perhaps we should extend his call to have links to dissenting viewpoints not only the internet, but in books. Perhaps Michael Moore's publisher could include blurbs for Bill O'Reilly's books in Moore's latest. Or perhaps Sunstein's publisher's page of reviews for could include some reviews that might have disagreed with Sunstein's conclusions? Now that would be an unplanned encounter.

via Furdlog (but don't read him, because he and I agree frequently)

Comments (2) + TrackBacks (0) | Category: Blogging and Journalism | Culture | Freedom of Expression

March 11, 2004

Library Surveillance in Garden Grove

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Posted by Ernest Miller

Findlaw's Modern Practice's Anita Ramasastry has written a column on the recent California appellate decision upholding the city of Garden Grove's requirement that cybercafes maintain surveillance cameras (Can a City Require Surveillance Cameras in Cybercafes?). She is disapproving of the decision and cites the dissent's comparison of Garden Grove's actions with those of dictatorial governments. I've written on the decision extensively here: CyberCafe Ordinance Decision - First Amendment Victory - Privacy Defeat.

via Ernie the Attorney, whose response to this privacy invasion is incredulity

Comments (0) + TrackBacks (0) | Category: CyberCafes | Freedom of Expression | Privacy

March 10, 2004

FCC Indecency Rulings Politically Determined?

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Posted by Ernest Miller

If you care about freedom of expression, go read the latest Jeff Jarvis on the whole FCC/indecency mess (The daily Stern - March 10, 2004). This especially ticks me off:

Howard Stern's source in the FCC tells him today that there have been meetings at a high-level in the agency strategizing when to fine Stern based on the impact it would have on the election of George Bush. Some argue that fining him now will make him a martyr and help him rally voters against Bush; others say not fining him will make him look like a boy who cried wolf; others say they should get rid of Stern now because, to their surprise, much of his audience does vote. and he can have an impact on the election.
If that is true, that that could not be a clearer violation of the First Amendment: an agency of government using fines for political ends to affect political speech.
If that is true, if any such discussion occurred in the agency, then they should be hauled before Congress or courts right now.


There is much, much more from Jarvis. Read it all.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Telecomm

Sen. Hollings Opposes Television/Flag Violence

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Posted by Ernest Miller

Senator Fritz Hollings (D - SC), aka "the Senator from Disney", has for the seventh time introduced legislation against television violence (Hollings’ TV Violence "Safe Harbor" Legislation Approved by Commerce Committee). Read the summary of the bill here: BACKGROUND: Senator Hollings' TV Violence "Safe Harbor" Legislation, which claims, among other things, that:

The legislation is narrowly targeted to comply with Constitutional scrutiny. The "safe harbor" legislation does not prevent broadcasters from offering violent programming. It simply directs those programs to hours when most children are not watching – the same way the FCC treats "indecent" programming today. Courts have upheld the regulation of indecency, and furthermore, Attorney General Janet Reno and several Constitutional scholars have testified that the "Children's Protection from Violent Programming Act" would be "constitutionally permissible." If children can be constitutionally protected from indecent material, they should also be protected from gratuitous violence.

Since the Senator is retiring I doubt we will have to worry about this never-gonna-pass legislation being introduced an eighth time.

Perhaps he can append the legislation to the flag burning amendment, which Hollings has voted for in its previous incarnations. The Hartford Courant (reg. req.) editorializes about this ridiculous assault on freedom of expression here: Has Anyone Seen A Flag Burn?:

In reality, the flag-burning amendment is a solution in search of a problem. Does anyone remember seeing flag desecration recently? Ever? Such deplorable incidents are rare, and can be handled with local vandalism laws unless the desecrator owns the flag in question.

via Buzzmachine and How Appealing

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March 09, 2004

Information Cannot Be 0wn3d

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Posted by Ernest Miller

John Palfrey uses his blog to summarize what sounds like an extremely interesting lecture by a visiting scholar to the Berkman Center (Prof. Jean Nicolas Druey: "Information Cannot be Owned"). The post is somewhat unclear, but it seems to be an attack on the "property" concept of information and that what is important is not regulations of the substance of the communication, but rather, regulation of the channel of communication.

Hmmm ... I would definitely like to know more. Seems very similar to what I've been saying for a few years now, such as:

It's Freedom of the Press, Stupid
It's All About the Distribution, Stupid

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Freedom of Expression | Open Access

March 02, 2004

Senator Advocates "Council of Decency"

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Posted by Ernest Miller

Senator Zell Miller (no relation, thank goodness) (D - GA) (is that really a "D"?) has introduced a bill to levy heavy but variable fines on those involved with broadcasting indecency on the public airwaves. Read the press release: Miller Introduces Bill to Crack Down on Indecent Broadcasts. Read the bill: S. 2147.

In the colorful language of a Southern caricature stereotype Senator, the bill is described thus (I am not making this up):

This is a tough bill, and it’s meant to be. It is not a little Red Ryder BB Gun like most of the proposals I’ve seen. It is a double barreled 10 gauge shot gun loaded with buckshots [sic] that will hit all of those involved when its trigger is pulled.

The collected fines would pay for the costs of administering the program with the remainder going to "faith based programs selected by the Faith Based Initiative Office of the White House."

In addition to the fines, the Senator's bill would create a nine-member "Council of Decency" made up of 3 ministers, 3 teachers and 3 media representatives. The council is obviously designed to be the arch-nemesis of the "League of Obscenity," which coincidentally is made up of 3 ministers, 3 Senators and 3 media representatives.

James Grimmelmann of LawMeme refers to members of the proposed council as "Decency Nazgul" (Sen. Miller: Raise Fines for TV Indecency, Give the Money to Churches). I think this is unfair to the nine ringwraith servants of the dark lord.

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February 27, 2004

What Part of the First Amendment Don't You Understand?

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Posted by Ernest Miller

I'm talking to you, FCC Commissioner Kevin J. Martin.

According to a Reuters wirestory posted on Infoshop, Martin wants the FCC to consider regulating indecency on satellite and cable (FCC's Martin ponders indecency on pay TV, radio).

Let me think about that ... um, no.

"Cable companies need some way to empower parents and families to have more choice," Martin said. "I think that it has the potential to be a problem when they are receiving things they object to and have to pay for that."

It's called stop paying for cable, Martin. It's called a lockbox, Martin. Its called the First Amendment, Martin.

What a maroon.

Comments (3) + TrackBacks (0) | Category: Freedom of Expression | Open Access | Telecomm

February 18, 2004

Miller on Bernstein on Balkin on Free Speech

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Posted by Ernest Miller

Yesterday, Prof. Jack Balkin wrote a short post on his view of the purpose of freedom of expression in response to David Bernstein (Save Freedom of Speech, Get Rid of Public Universities?). Bernstein doesn't respond in depth (too busy), but notes the post as an example of "what the brightest minds on the left are thinking on such topics" (Balkin on Free Speech).

I believe that Balkin's view of the purpose of free speech being to promote democratic culture as absolutely spot on, and take exception to Bernstein's suggestion that this is a view from the left. Balkin may rightly be called a "leftist", but his views on freedom of speech are classically liberal, though not libertarian. For example, Balkin doesn't particularly privilege one type of speech over another (as Meiklejohn does), but sees participation in culture as a critical element. This doesn't seem to me particularly leftist, especially given the success of conservatives and rightists in taking advantage of democratic culture (i.e., right-wing bloggers and South Park Republicans).

Furthermore, Balkin believes that "freedom of speech involves important infrastructural elements in technology and institutions that undergird and enrich the system of free expression." In my view, this is obvious. Intellectual property law, telecommunications regulation, the postal service and even property law (to name but a few) all have profound implications for freedom of expression. Even so-called "content neutral" regulations can substantively alter our free speech rights. For example, the choice between end-to-end and centralized communications architectures are content neutral. However, they are not substantively neutral. One architecture will promote democratic freedom of expression values better than another. It hardly seems to me that this view of freedom of expression is leftist.

If you would like to know what the brightest minds, period, are thinking on such topics as freedom of expression and universities, Balkin's piece is a good place to start.

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February 07, 2004

Parody of a Parody

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Posted by Ernest Miller

The Trademark Blog posts a interesting disturbing image of Miss Piggy with a breast baring pose obviously reminiscent of Miss Janet at the Super Bowl (Warning: the image may upset the sensitive) (Parody - Discuss Amongst Yourselves). Marty asks whether the image is a non-infringing parody (which comments on Miss Piggy) or an infringing satire (which merely uses Miss Piggy to comment on Miss Jackson). The case is point is the famous Dr. Seuss case which held that a satire of OJ Simpson in the style of Dr. Seuss was infringement.

Tech Law Advisor is quick to take up the discussion and quickly concludes that (Not Parody):

Miss Piggy baring her breast does not comment on Janet Jackson's exposed breast. The work shown here is quite simply infringement.

The problem here as in the Dr. Seuss case that Marty cites is that the supposed parodist merely use the work [Miss Piggy] as a vehicle to satirize something completely different [Miss Nasty]. [comments/links in original]

I disagree. To me this is a fairly clear case of parody of a parody.

Miss Piggy, afterall, is a sanitized, child-friendly parody of celebrity divadom, of which Miss Janet Jackson is an example. Miss Piggy was originally called "Miss Piggy Lee" after diva singer Peggy Lee. Since then, Miss Piggy has vamped in parodic versions of Calvin Klein, Guess? Jeans, Pulp Fiction, Sports Illustrated Swimsuit Edition, and Pretty Woman, not to mention so many, many others, including a Pigtoria's Secret shoot.

Miss Piggy clearly is meant to parody the sexuality of modern female celebrity-dom. Nevertheless, like all the Muppets, Miss Piggy's parody is sanitized for family consumption. Clearly, such sanitized family entertainment is itself ripe for parody, see, for example, directorial genius Peter Jackson's Muppet parody Meet the Feebles, in which Muppet-like creatures do drugs, porn and engage in other degenerate acts.

How better to parody Miss Piggy then to push her parody of female celebrity-dom into the realm of the absurd? The humor of this parody lies not simply in its reference to Janet Jackson's breast episode, but to our recognition of Miss Piggy as following in Janet's footsteps (as Miss Piggy has followed in the footsteps of so many other divas). The image is funny because it pushes our expectations of the sanitized parody of Miss Piggy beyond what her creators would have chosen. In the words of the Dr. Seuss decision, this image of Miss Piggy "mimics an author's characteristic style and holds it up to ridicule."

Comments (2) | Category: Copyright | Freedom of Expression | Trademark

February 03, 2004

Issue Ads and Responsibility

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Posted by Ernest Miller

John Palfrey takes an interesting and brief look at CBS's decision to air non-controversial issue ads, but not controversial ones, such as the anti-Bush contest winner (Is anti-smoking not an issue?). Palfrey's intutition seems to be that there is something wrong with CBS's decision, though under existing law it is clearly constitutional. For example, Palfrey points to Marsh v. Alabama, a company-town case. Although it isn't legally on point, Palfrey seems to be making an analogy to the Super Bowl because of the game's incredible popularity. Just as it is bad policy for a company-town to restrict the pamphleteer, so it is bad policy for CBS to restrict its television commercial sales for the extremely popular Super Bowl (though Palfrey is not claiming it is unconstitutional).

I agree with Palfrey's intutition that what CBS is doing is wrong. However, I don't think the problem has anything to do with the Super Bowl (should speech be more subject to regulation because it is popular?), but with our telecommunications regulatory scheme in general. Broadcasters, cable and satellite networks have the power to discriminate because the government has given them that power. Speakers, of course, should have the right to discriminate, that is what freedom of expression is all about. However, broadcasters, cable and satellite networks are not merely speakers but distributors as well. Of critical importance is that these networks are the creation of government regulation.

As I've argued previously, creating and maintaining such distribution monopolies is precisely one of the things the First Amendment was meant to prohibit (It's Freedom of the Press, Stupid). Letting broadcasters descriminate in what they will broadcast is like letting Chevrolet build a bridge on public land and then decide what cars get to cross it, or having railroads built using eminent (I almost wrote, "public") domain and then deciding who gets to transport goods via train. Interestingly, a similar analogy is used in Marsh v. Alabama, noted above:

Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation. And, though the issue is not directly analogous to the one before us we do want to point out by way of illustration that such regulation may not result in an operation of these facilities, even by privately owned companies, which unconstitutionally interferes with and discriminates against interstate commerce. [emphasis added]

Palfrey ends his post with this:

But, leaving the Constitutionality question aside, and thinking hard about the relevant policy questions, I'm still unconvinced that CBS is wholly in the right on this one.

Palfrey is right. CBS is wrong. However, CBS is not simply wrong on "this one" but the very existence of government telecomm-regulation-created CBS is wrong in general (not to mention unconstitutional).

Comments (6) | Category: Freedom of Expression | Open Source | Telecomm

Janet, Justin and Michael Powell

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Posted by Ernest Miller

The whole brouhaha about the boorish publicity stunt pulled off by Janet Jackson and Justin Timberlake during the Super Bowl Halftime Show is truly pathetic. Janet, Justin, CBS and MTV are getting exactly what they want, oodles of free press coverage that touts them as somewhat daring or something. Even better, as they probably calculated, the FCC is now helping out by launching an expensive taxpayer-funded "investigation" into the stunt that will produce little in the way of information or deterrence, but will provide for even more coverage and give politicians and FCC Commissioners/Politicians an opportunity to prove their cultural conservative bona fides. See, FCC Chairman Michael Powell's statement: FCC Chariman Powell Calls Super Bowl Halftime Show a "Classless, Crass, Deplorable Stunt." Opens Investigation [PDF].

Of course, if the Super Bowl had been broadcast on cable, there most likely would have been some controversy over the baring of a partially concealed breast for a couple of seconds, but there certainly wouldn't have been any call for an investigation into the act by the FCC. Why? A little thing called the First Amendment, that only partially applies to broadcast, apparently. We should abandon this asinine "indeceny" policy that only applies to broadcast and I certainly agree with the following statement on the issue:

I want to also say of the First Amendment standard that I personally believe there is only one of them. I do not believe that the growing convergence of technology will allow us to continue to maintain two First Amendment standards, one for broadcasting and one for every other communications medium. I sincerely question how long we can continue to maintain in the face of technological convergence that broadcasting is uniquely undeserving of full First Amendment protection. Technology has evaporated any meaningful distinctions among distribution medium, making it unsustainable for the courts to segregate broadcasting from other medium for First Amendment purposes. It is just fantastic to maintain that the First Amendment changes as you click through the channels on your television set.

Who made this radical statement? Michael Powell, in 1998. See, Michael K. Powell, Commissioner, Federal Communications Commission, Before the American Bar Association 17th Annual Legal Forum on Communications Law, Las Vegas, Nevada, April 5, 1998.

Comments (8) | Category: Freedom of Expression

February 02, 2004

CyberCafe Ordinance Decision - First Amendment Victory - Privacy Defeat

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Posted by Ernest Miller

Larry Lessig has written a brief note about a California Appeals Court decision that eviscerated privacy rights in cybercafes (mandated telescreen upheld). There is a article here (Internet Cafe Ordinance Sparks War of Words). Read the decision (Thany Thuy Vo v. City of Garden Grove [PDF]). The issue that has Prof. Lessig rightfully incensed is an operational requirement for cybercafes that forces them to monitor (read over the shoulder) what people are doing on cybercafe screens, whether it is reading email, browsing the web or playing a game of Counter Strike. However, there are other major issues involved and the decision has some very important victories in it for those who care about the First Amendment.

...continue reading.

Comments (5) | Category: CyberCafes | Freedom of Expression | Games | Privacy

January 27, 2004

Balkin on Sunstein, Blogging and Democracy

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Posted by Ernest Miller

Prof. Jack Balkin has made a couple of good posts about freedom of speech, democracy and blogging (What I learned about blogging in a year and Political Organization and Political Discussion on the Internet). The posts are mostly in response to Cass Sunstein's wildly overblown fears of internet-facilitated cultural isolation in and a recent article in the New York Times that has a similar thesis (Politics of the Web: Meet, Greet, Segregate, Meet Again).

Frankly, I've never really understood Sunstein's fears. It seems to me that we have far more to fear from the mass media, whether that mass media was the Catholic Church prior to the 95 Thesis or that mass media epitomized in The Triumph of the Will. I think the major conceptual problem with Sunstein's thesis is that he seems to assume that people are mostly passive consumers of information. This is one of the critical elements of the traditional mass media model. In the past, mass media has generally been dependent on top-down control of the means of production and distribution to fill the minds of passive consumers. Today's internet media doesn't eliminate the traditional model directly, but provides a competing means for bottom-up production and distribution that assumes active participation and production by people who aren't merely passive consumers.

In many ways, actually, the top-down and bottom-up means of production and distribution are complimentary, which is why Sunstein's calls for some sort of top-down control over the bottom-up internet strike me as so odd. Sunstein's thesis makes sense only to the extent that the public cannot be trusted (whether for social, technical, economic or legal reasons) to be both consumer and producer, recipient and distributer. If there are problems, the solution seems to be to give more capability to consumers to produce and distribute, rather than attempt to replicate mass media controls.

Comments (22) + TrackBacks (0) | Category: Blogging and Journalism | Culture | Freedom of Expression

January 17, 2004

Pavolvich Free to Post DeCSS (Until Sued by MPAA, Anyway)

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Posted by Ernest Miller

Reuters has an important story in the DeCSS saga (Supreme Court Unscrambles DVD Decision). Apparently, two weeks ago the Supreme Court of the United States reversed an emergency stay on the Pavlovich DVD case. Pavlovich, a resident of Texas, had successfully contested jurisdiction (as determined by the California Supreme Court) in a trade secrets case brought in California. The DVDCCA had claimed posting DeCSS violated their trade secrets. According to Reuters, "In the latest ruling, U.S. Supreme Court Justice Sandra Day O'Connor lifted the injunction, saying there was no need to keep DeCSS a secret." This is a major blow to the trade secrets case, though not to the DMCA case (see, EFF's MPAA DVD Cases Archive).

I wonder though, if the emergency stay was lifted Jan. 3, why haven't I heard about it before?

Read about the history of the case on EFF: DVDCCA Case Archive: Pavlovich.

Comments (2) + TrackBacks (0) | Category: Copyright | Digital Millennium Copyright Act | Freedom of Expression

January 16, 2004

Dress Warm in North Miami

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Posted by Ernest Miller

C|Net News has published a Reuters wirestory on yet another First Amendment-violating anti-violent games law (Florida city targets computer game violence). Mayor Joe Celestin of North Miami City is apparently offended by the line "Kill the Haitians" in the videogame Grand Theft Auto: Vice City, calling the phrase "incitement" to violence.

Retailers would be fined (up to $500/day for repeat offenders) for renting or selling violent videogames to minors without parental permission (although one wonders why anyone should have access to the games is they are "incitement"). Violent videogames being games in which players kill or cause harm "to a human form." This is sooo not-Constitutional.

There is a great quote in the story:

"Have they ever watched Cartoon Network?" North Miami video store owner Bob Richardson told the Miami Herald newspaper. "It's the most violent network on television."

Grand Theft Auto: Vice City was partially inspired by the classic Al Pacino movie Scarface, which had the following quote, which seems apropos.

You wanna waste my time? Okay. I call my lawyer. He's the best lawyer in Miami. He's such a good lawyer, that by tomorrow morning, you gonna be working in Alaska. So dress warm.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression | Games

January 13, 2004

DRM as Protectionism

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Posted by Ernest Miller

One of the main reasons that Hollywood has been such a proponent of DRM (such as fighting to protect CSS) is not simply to protect against internet movie piracy (which remains a minor irritation at best), but to protect region coding, which allows movie studios to release the same DVD in different markets at different times, or slightly different DVDs in different markets. This form of price discrimination is a traditional means for copyright holders to maximize revenue, but in the digital age requires major restrictions on consumers to make it work. So, for example, if someone from the US buys a DVD while on vacation in Europe, they won't be able to play it back in the US.

Hollywood, of course, would love to have region coding even further mandated by law and international treaty, but if they are successful, they may not like the ultimate results.

The Competitive Enterprise Institute has a brief article on efforts by some ministers of culture to have cultural goods exempted from free trade agreements (The New Protectionism). The organization in question, International Network on Cultural Policy (INCP), seeks to help countries "develop strategies to promote cultural diversity," which generally means excluding US cultural products to some degree.

How interesting it would be for the INCP to take up the banner of region coding in order to enforce restrictions on the flow of cultural goods. This is really not that far fetched. DRM is a wonderful tool that governments can use to enforce all variety of censorship.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Rights Management | Freedom of Expression

January 08, 2004

Solum the First Amendment, Copyright and Originalism

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Posted by Ernest Miller

Prof. Larry Solum discusses a recent panel on copyright at the annual meeting of the Association of American Law Schools on Legal Theory Blog (Blogging from Atlanta 05, Association of American Law Schools, Section on Constitutional Law, Copyright and the First Amendment). His brief notes are a good starting point for looking at and discussing various threads regaring the intersection of the First Amendment and copyright law. Of course, his post serves to make the point that right now there is no coherent theory, nor is there a consensus as to how we will move towards one.

Of particular interest is the discussion regarding Originalism and the relation between the First Amendment and copyright law. Taking off on Prof. Neil Netanel's fairly mainstream view that the First Amendment acts as a restriction on a plenary (Solum's word) copyright power, Solum proposes an alternative (with an evocative metaphor), that the copyright power is a an island of power in a sea of liberty. Very interesting, though I am not convinced. Scrivener's Error replies to Solum and has some very good points (Originalism, Copyright, and the First Amendment).

I, of course, remain convinced that telecommunications law, copyright and the First Amendment are related throught the concept of distribution ... that they can all be analyzed through the lense of rights of distribution.

Comments (1) + TrackBacks (0) | Category: Copyright | Freedom of Expression

December 11, 2003

Porn, Compulsories and Filtering

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Posted by Ernest Miller

As CNN notes in an otherwise slow newsday, porn is a popular business on the internet (Sex sells, especially to Web surfers). However, see Seth Finkelstein's dissection of the "report" CNN is relying on (N2H2 "State Secrets" - PR and lying with statistics [part 1]) and (CNN, "web porn", and censorware PR Managers).

Regardless of the validity of the report, it is undisputed that pornography is popular on the internet, including P2P networks (of course, porn has been popular in every medium). Note, that contrary to some claims, pornography hasn't been shown to be more of a problem on P2P networks than the internet generally as a leaked GAO memo obtained by TechNewsWorld concludes (U.S. Congress: P2P E-Smut 'Not Necessarily' More Dangerous than Other Forms).

In any case, the debate over compulsories has raised a serious barrier to their implementation - the political unpopularity of systems which will provide cross-subsidization for pornography. In other words, taxes (whether levy or general) would be collected and then distributed to pornographers. This would not be, to put it mildly, politically popular. Furthermore, I use the term "pornography" only as the most blatant example of content that would be politically unpopular. I can imagine, for example, that certain genres of music, such as "gangsta rap," would raise similar objections (how would people feel about tax dollars subsidizing music that glorifies cop-killing?). This is a serious problem and one that hasn't really been addressed by proponents of government mandated compulsories, especially given the track record of political debate over the relatively small amount of money dedicated to the National Endowment for the Arts.

Nevertheless, the issue of compulsories and pornography may create other problems as well. One I am concerned about is the potential for mandatory filtering to go along with the mandatory compulsories. Although none of the proposed compulsory systems speaks to the issue of filtering (and I am sure the proponents would oppose it), the systems certainly enable a mechanism that would make such filtering possible. All of the proposed government mandated systems envision some form of centralized registry for copyrighted works so that the works can be monitored and tracked and appropriately compensated. How much more of a step would it be to require works in the registry to also include self-labeling information?

I can imagine that many people would make the claim that, for example, pornographers shouldn't be compensated for having their files shared by minors. Two 15-yr olds file share a pornographic movie. Should the pornographer be compensated? If not, then the system will have to include self-labeling by the pornographer as well as parental controls (filters) in the file-sharing/playback devices. How will this work? Will political pressure force "voluntary" labeling schemes onto content producers who wish to be compensated? How will the survey/monitoring systems handle devices with and without filtering mechanisms?

No compulsory scheme advocates for labeling and filtering. However, we should consider likely ramifications of such compulsory schemes, and increased political pressure for labeling, whether "voluntary" or not, is likely.

Comments (2) + TrackBacks (0) | Category: Copyright | File Sharing | Freedom of Expression | Rating and Filtering

November 20, 2003

Slater Wins One @ Harvard

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Posted by Ernest Miller

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.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

It's All About the Distribution, Stupid

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Posted by Ernest Miller

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.

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Internet | Open Access | Telecomm

It's Freedom of the Press, Stupid

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Posted by Ernest Miller

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.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression | Internet

November 19, 2003

Kucinich Posts Diebold's E-Voting Memos

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Posted by Ernest Miller

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.

Right on, Kucinich! Will any other presidential candidates or representatives join the campaign against Diebold? Let's hope so!


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's ISP]."

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

November 14, 2003

Games as Speech

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Posted by Ernest Miller

One of the issues near and dear to my heart.

Rebecca Tushnet

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 2 1245 ET

...continue reading.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Games | The State of Play

November 11, 2003

Search Engine Ad Control

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Posted by Ernest Miller

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.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Internet | Trademark

Merriam-Webster Responds to McJob Controversy

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Posted by Ernest Miller

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).


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 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 ...


Don't know why I misspelled Merriam "Mirriam", but I did. It is now corrected.

Comments (3) + TrackBacks (0) | Category: Freedom of Expression | Trademark

McWimps - Merriam-Webster Caving to McDonalds Threats

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Posted by Ernest Miller

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 (

<!-- 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


via BoingBoing

UPDATED 1640 PT - Corrected misspelling.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression | Trademark

November 10, 2003

Printed Porn Dying - Publishers Blame Old Models, Not Piracy

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Posted by Ernest Miller

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).

Comments (0) + TrackBacks (0) | Category: Copyright | Freedom of Expression | Internet

Slater's Civil Disobedience in the Harvard Crimson

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Posted by Ernest Miller

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.

via A Copyfighter's Musings

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

November 04, 2003

Harvard's Unjust Application of the DMCA

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Posted by Ernest Miller

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!


Derek writes to inform that he has not actually taken the materials down and has not yet decided on a plan of action.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

EFF, Stanford Support Diebold Countersuit

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Posted by Ernest Miller

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.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 29, 2003

Civil Disobedience to Diebold Moves onto P2P Networks

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Posted by Ernest Miller

bIPlog which had a great set of links on the Diebold/Swarthmore scandal yesterday (Cease and Desist Me, Babe) and was Slashdotted this morning (Diebold Chases Links To Leaked Memos), points to an interesting /. comment (/. Comments):

Yea, that's right, go on kazaa and type in Diebold and you'll find the mail....on over a hundred different hosts with quick speedy downloads to par!

Same's true for all the p2p apps, even the waste network I'm on! Sorry Diebold, I'm not gonna stop hosting your memo's until your entire goddamn corperation is taken down and the lie is revealed.

When will companies learn that often times the best way to solve a problem is to ignore it? Diebold's heavy-handed efforts to stamp out the distribution of the memos is only increasing their distribution and public awareness.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | File Sharing | Freedom of Expression

Diebold Protest Growing

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Posted by Ernest Miller

WIRED is continuing coverage of the Swarthmore/Diebold scandal and gets some quotes from Swarthmore's Dean Gross (E-Vote Protest Gains Momentum). However, the issue of taking down links to sites that link to the memos is not directly addressed:

However, Gross said that the cease-and-desist letter specified taking down links to the memos, and school lawyers felt they had to comply.

But the issue isn't direct links to the memos (though the EFF is challenging that), but links to sites that have direct links to the memos.

In another update, the Why War? website now shows nineteen active mirrors for the memos and three mirrors shutdown due notice-and-takedown letters from Diebold (Targeting Diebold with Electronic Civil Disobedience). Students from a total of twenty schools are participating.

bIPlog has a good round up of stories and cheekily requests a cease-and-desist letter (Cease and Desist Me, Babe).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Blogger Fired for Security Violation

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Posted by Ernest Miller

According to his blog, until this past Monday, Michael Hanscom was a temporary employee in Microsoft's Copy/Print shop, reporting to a Xerox supervisor. Michael worked there until he was fired for a security violation for a blog post (Of blogging and unemployment). The original blog post that resulted in the firing contains a photo of a number of Power Mac G5s being unloaded from a truck at the receiving dock on the Microsoft facility in Redmond (Even Microsoft wants G5s).

I've only had the chance to read one side of the story (and I doubt MS Security will comment), but it seems to me that Microsoft has overreacted (though it is within their rights to fire). Couldn't this have been handled with a discussion and some more training about security issues? Is the employee manual so clear on security issues? I'm also sort of curious as to how this came to Microsoft's attention. Do they monitor employee's private websites?

What this does show, however, is that companies probably should add an "acceptable blogging policy" regarding company-related posts to their employee manuals.

via Metafilter

Comments (1) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression | Security

October 28, 2003

Diebold Countering Civil Disobedience with More Notice-and-Takedown Letters

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Posted by Ernest Miller

Why War? reports that two of the universities (Amherst and MIT) which have students engaging in electronic civil disobedience by hosting the infamous Diebold memos have received notice-and-takedown letters from Diebold. On the other hand, students at three more universities have joined the protest (Targeting Diebold with Electronic Civil Disobedience). The student at MIT who was the indirect target of the letter has his homepage here (C. Scott Ananian).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Swarthmore's Professor Burke on the Diebold/Swarthmore Scandal

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Posted by Ernest Miller

Prof. Timothy Burke of Swarthmore's History Department has a thoughtful post on the Swarthmore/Diebold scandal (Caveat Emptor). While appalled by Diebold's actions and proud of the students who have revealed the mendacity of Diebold, he finds fault with some of the students' tactics and defends Swarthmore's response. Much of his argument is well-taken and provides good guidance for civil protests on college campuses (such as, don't ask /. readers to email the Dean en masse).

However, I do take exception to the claim that I and others "[repeat] what they’re finding at the Why War? website as if it’s the absolute gospel truth, and [exhibit] zero curiosity about the totality of the story." I do not believe that accurately characterizes my following of the story. For example, in this post (Swarthmore Crackdown on Protesting Students Reaches New Low), I am clearly skeptical of the claims of the Why War? website:

Now, Swarthmore is allegedly terminating the internet connection of any student who links to the Why War? website .... If the allegations are true, this is a tremendous violation of freedom of expression and academic freedom. [emphasis added]

In accordance with my skepticism, I actually tracked down, telephoned, and spoke with two principles of the story, a student whose website was shut down and a member of Swarthmore's IT department. I hardly think making phone calls to confirm the posting is "exhibiting zero curiosity."

I'll also note that as a followup, I spoke with a member of Swarthmore's IT department again yesterday. The linking policy is, as of last night and according to this individual, unchanged. Students may have a text-based link to the Why War? site, but not an active HTML link to the site.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Fictional Quebecker Terrorists Out of Bounds

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Posted by Ernest Miller

The Globe and Mail has an interesting story about Sony Computer Entertainment America and some changes they've made to their upcoming game "Syphon Filter 4: The Omega Strain" (Sony deletes separatist terror attack). The game's story involves a fictional world-wide terrorist organization that intends to release a deadly biological weapon and takes place in Chechnya, Yemen, Brazil, Uganda, Myanmar, Tokyo and Toronto. All the terrorist groups are fictional, and the elements of the game set in Toronto are no different, except that the virtual terrorists are radical Quebec separatists. As in most videogames of this genre, you kill lots and lots of virtual terrorists. The idea that you would be shooting Quebeckers, however, has upset Quebec politicians and the public outcry has forced Sony to remove the offending elements of the game.

Sony is going to enjoy having set that precedent.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression | Games

Volokh on Blogging and Libel

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Posted by Ernest Miller

Eugene Volokh of the eponymous Volokh Conspiracy has some interesting and brief comments on the differences in liability for libel between bloggers and other forms of journalism (Mickey Kaus on blogging, writing, speaking, and editing).

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Freedom of Expression

This is not the Link You're Looking For

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Posted by Ernest Miller

There is a nice little satire of the Swarthmore/Diebold link scandal being hosted on a Georgetown server (The Diebold Memos are NOT here).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression | Oddities

October 27, 2003

Diebold Filing False Notice-and-Takedown Claims?

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Posted by Ernest Miller is running an AP wirestory on the Swarthmore/Diebold scandal (Diebold threatens publishers of leaked electronic-voting documents). Perhaps this story is finally going to break in the mainstream press and get the attention it deserves.

Of particular interest in this story are the following paragraphs:

Company spokesman Mike Jacobsen said the fact that the company sent the cease-and-desist letters does not mean the documents are authentic -- or give credence to advocates who claim lax Diebold security could allow hackers to rig machines.

"We're cautioning anyone from drawing wrong or incomplete conclusions about any of those documents or files purporting to be authentic," Jacobsen said.

Hmmmm ... Well, according to the DMCA, a proper notice-and-takedown letter must include (among other things) the following:

  • Sufficient information to identify the copyrighted works [17 USC 512(c)(3)(A)(iv)]
  • A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [17 USC 512(c)(3)(A)(v)]

If the documents aren't authentic, then how can Diebold meet these burdens?

Unfortunately, this isn't as clear cut an issue as it should be, since one doesn't have to be too specific about which documents need to be taken down. Diebold can essentially claim that most of the documents (the non-incriminating ones) are copyrighted and that they don't have to show which specific documents need to be taken down, particularly if the archive file contains many documents. However, if various individuals post only a handful of the most incriminating documents ... then Diebold would be forced to claim that the documents were authentic, if they want those specific documents removed.

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

The Chronicle on the Swarthmore Controversy

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Posted by Ernest Miller

The Chronicle of Higher Education has an article on the electronic civil disobedience ongoing at Swarthmore and (now) eleven other colleges. Unfortunately, I can't link to the article on the Chronicle's site because a subscription is required. Fortunately, you can read the whole thing on Why War?'s site (Swarthmore Shuts Down Web Sites of Students Publicizing Company's Voting-Machine Memos).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

China to Regulate and Standardize "Troublesome" CyberCafes

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Posted by Ernest Miller

C|Net News reports a highly disturbing story from China (China to consolidate Net cafes):

Nearly all of China's 110,000 Internet cafes will be consolidated under the management of larger, mainly state-owned companies in the next three years, according to the official Xinhua news agency.

So much for freedom of expression for the masses through the internet.

Regulation of cyber cafes is something that I've been doing a lot of research on recently. I'll be posting much more on these issues in the near future.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | CyberCafes | Freedom of Expression

Swarthmore Civil Disobedience Campaign Growing

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Posted by Ernest Miller

Why War? reports that three more schools have joined the electronic civil disobedience campaign, bringing the current total to eleven schools (Targeting Diebold with Electronic Civil Disobedience).

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 25, 2003

Electronic Civil Disobedience Spreads - Students from 8 Universities Participate

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Posted by Ernest Miller

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Finkelstein to Swarthmore - Don't Give in to Chilling Effects

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Posted by Ernest Miller

Seth Finkelstein has published an email he has sent to Swarthmore's Dean Gross, asking him to resist the fear of liability and take a stronger stand in defense of freedom of expression (My letter to Swarthmore supporting fight against Diebold):

Yet I would say that Swarthmore, as an educational institution, is in fact extremely well-positioned to fight against Diebold. Though I'm not a lawyer, I'd claim that courts are generally extremely well-disposed to colleges in a situation such as this. The public interest and educational purpose aspect weigh very heavily, formally in a fair use copyright defense, and also informally in terms of making for a sympathetic presentation.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 24, 2003

Reimerdes and Linking Re: Swarthmore

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Posted by Ernest Miller

Seth Finkelstein pulls out the quotes on the legality of linking from the Universal v. Reimerdes (DeCSS) case in light of the recent decision by Swarthmore to stop all student webpage links to Why War? (Diebold memos and linking prohibitions at Swarthmore). This points out once again the large amount of foolishness in the Reimerdes decision. Nevertheless, Reimerdes was concerned with whether or not linking to a page that links to an anti-access control circumvention device was trafficking or not, and did not squarely address the issue of whether linking to a page that links to infringing content was actionable.

It would be quite a stretch to hold that linking to a page that links to infringing content is actionable, especially in case such as Diebold's memos where there are strong fair use and public policy arguments defending the posting of the allegedly infringing content itself. In any case, there is no justification whatsoever for Swarthmore to take down student websites that link to Why War? If courts could find ISPs liable for hosting third-party websites that link to a page that links to infringing content, what ISP wouldn't be liable? Swarthmore has gone far beyond simply being risk adverse.

Comments (0) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

Cyber-Fatwa Against Hosting Matters?

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Posted by Ernest Miller reports on recent DoS attacks against Hosting Matters, a popular hosting service that many prominent bloggers use (Terror Link to Mass ‘Blog’ Outage). Law enforcement officials are investigating and there is no official word on any suspects, but some website managers believe the attack was the result of a "cyber-fatwa" against a site that attempted to get alleged terrorist-associated websites taken down by their hosts.

via BuzzMachine

Comments (0) + TrackBacks (0) | Category: Freedom of Expression

October 23, 2003

Swarthmore Crackdown on Protesting Students Reaches New Low

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Posted by Ernest Miller

According to the Why War? website, Swarthmore's crackdown on students engaging in Electronic Civil Disobedience has reached a new low (Targeting Diebold with Electronic Civil Disobedience). Now, Swarthmore is allegedly terminating the internet connection of any student who links to the Why War? website, which links to sites hosting the Diebold internal company memos. They are not only terminating the accounts of students who host the files, or the accounts of students who link to the files, but terminating the accounts of students who link to a political protest site that links to the files.

If the allegations are true, this is a tremendous violation of freedom of expression and academic freedom. Swarthmore should be deeply, deeply ashamed.

Previous stories:

Swarthmore Actively Opposes E-Civil Disobedience Campaign
(Electronic) Civil Disobedience at Swarthmore


EFF responds to one of Diebold's notice-and-takedown letters (Re: Diebold’s Copyright Infringement Claim). via Copyfight

UPDATE 2 1840 PT

It Gets Weirder

I have spoken with the student whose website was shutdown. According to the student, his website was redirecting to the Why War? website before it was taken offline. After it was taken offline, he was informed by a member of the Swarthmore IT department that it was the new policy of Swarthmore that students were no longer permitted to link to the Why War? website using HTML anchor tags. However, they could point to the Why War? with plain text, as so:

See the current page of the student here.

UPDATE 3 1900 PT

I have spoken with a member of Swartmore's IT department and can confirm that two student pages have been shutdown for linking to a page on Why War?'s website that linked to the Diebold files. Swarthmore is currently re-evaluating its linking policy, but until they are satisfied that they cannot be held liable, students are asked to only post plain text that points to the Why War? website.

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Copyright | Digital Millennium Copyright Act | E-Voting | Freedom of Expression

October 22, 2003

Fucking-A: The Mainstreaming of an Expletive

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Posted by Ernest Miller

First the FCC allows the use of the word "fuck" as an adjective during primetime (A Fucking Interesting Decision from the FCC). Now researchers are declaring the word nearly commonplace. The Guardian explores the lack of shock value left in the word "fuck" (Expletive deleted). Indeed, according to

Charles Jones, professor of English language at Edinburgh University, it [fuck] is no longer necessarily a swear word, and barely an incivility.


Comments (1) + TrackBacks (0) | Category: Freedom of Expression

Gator to World: Stop Calling Us Spyware or We'll Sue

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Posted by Ernest Miller

C|Net News reports that Gator has reached a settlement with a company they sued for libel (among other things) when the company insisted on calling Gator's software product "spyware" as opposed to "adware" (See you later, anti-Gators?). The story indicates that other companies that go after spyware and adware programs are feeling a distinct chilling effect.

Gator is normally downloaded as a plug-in for a "web wallet", though there have been some claims of surreptitious downloads when browsers have poor security settings. What Gator does is to provide targeted ads to people as they surf various sites, such as ads for mortgage companies when people look at real estate sites. It is this practice of keeping track of what people are surfing that has earned Gator the title of "spyware." Gator, however, insists that "spyware" only applies to software that people aren't clearly notified is being installed. Talk about your Word Pirates.

Libel - frequently the last refuge of a scoundrel.

Comments (0) + TrackBacks (0) | Category: Freedom of Expression

October 16, 2003

Confusing P2P Pornography Arguments

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Posted by Ernest Miller

Pornography and P2P has been much in the news lately, as foes of P2P (such as the MPAA) attempt to smear the technology as a breeding ground for filth. See, for example a post of mine on LawMeme (Pornography Obsession on Both Sides of P2P Debate). Yesterday, as reports, testimony concerning P2P and pornography was heard by the Senate Judiciary Committee (Hatch: P2Ps Are Child Porno Central). More information on the hearing and testimony can be found here (Indecent Exposure: Oversight of DOJ's Efforts to Protect Pornography's Victims).

The problem with this hearing is that some opponents of P2P and many of the reporters who publish on the issue are confusing two distinct arguments in the scatter gun attacks on P2P technology. The first argument is that child pornography is easily distributed via P2P networks (unlike the web or newsgroups, I guess). The second argument is that children have easy access to pornography via P2P networks (unlike the web or newsgroups, I guess). These are two separate problems; to conflate the two arguments is to confuse the issue, as the following quote from shows:

While Wednesday's witnesses focused on Web sites featuring Internet child pornography, Judiciary Committee Chairman Orrin Hatch singled out peer-to-peer (P2P) networks as the most pernicious purveyors of online child pornography.
"I am currently considering legislative solutions to the many risks inherent in the use of peer-to-peer networks. Almost half of the people who use these networks are minors," Hatch said. "Recent studies have shown that millions and millions of pornographic files are available for downloading on these networks at any given time."

Hatch's quote has nothing to do with child pornography, but rather dealt with access to pornography by minors. There are legitimate issues to be addressed here, but we won't make any progress by confusing them.

Comments (0) + TrackBacks (0) | Category: File Sharing | Freedom of Expression