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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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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July 04, 2005

July 01, 2005

Froomkin on US Announcing it Will Retain Control of DNS

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Posted by Ernest Miller

Prof. Michael Froomkin, who has long been one of the leading experts on the mess that is ICANN, points out a significant change in the US government's take on the Domain Name System (US Drops ICANN/DNS Bombshell (on WSIS?)).

The US Department of Commerce has announced an unexpected new policy regarding the Domain Name System (DNS) and the Internet Corporation for Assigned Names and Numbers (ICANN).

In previous pronouncements, the US had indicated that the US would someday release its ultimate control over the "root" -- the file that contains the master list of authorized registries and thus determines which TLDs show up on the consensus Internet and who shall have the valuable right to sell names in them. That day would come if and when ICANN fulfilled a number of conditions spelled out in a Memorandum of Understanding (MOU).

Today's announcement says the opposite: the US plans to keep control of the root indefinitely, thus freezing the status quo. Nothing will change immediately as a result. But the timing is weird, coming as it does only a short time before the forthcoming meeting of the UN-sponsored World Summit on the Information Society (WSIS). [links in original]

Perhaps not sexy, perhaps not glamorous, but important. Froomkin is reassuring about this move.
Personally, I'm actually not that upset with this promise to maintain the status quo because I don't see ICANN as deserving to slip loose of the last significant source of even potential control on its ever-expanding budget and activities. And, although it's not politically correct in international circles to say so, I'd be uncomfortable with any international control over the Internet that gave any foreign despot a say in how domestic communications work. (I'd be fine with a coalition of the willing serving as co-trustees if membership were limited to democracies; for some reason that's never what anyone contemplates.) ....

The bright side from the point of view of potentially angry foreign governments is the invitation to thinking about new ways to deal with ccTLD issues; coupled with the reference to multiple fora, this suggests a possible deal on taking the ccTLD part out of ICANN and situating it somewhere else. But that's pure speculation on my part.

Definitely read the whole thing.

Comments (0) + TrackBacks (0) | Category: Internet

June 24, 2005

Window Into a Virtual World

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Posted by Ernest Miller

New World Notes reports something extremely cool coming from Linden Lab: live video from Second Life, the most innovative virtual world out there (Links of the Week!: An SL Simulcast and a Movie Trailer...). Très très cool! Go to the Second Life homepage and click on the television set labeled "live video." Be prepared for loud music that I couldn't figure out how to turn off. It is, literally, a window into a virtual world. How long will it be before we hear the cry: "I Want My Second Life TV!"?

Reuben Steiger, who works on Second Life at Linden Lab, explains the reasoning behind this very amazing innovation (Video From a Virtual World).

Second Life is a 3-D virtual world that is 100% created by its 32,000 residents. The challenge this presents us at Linden Lab is that all the action that takes place in Second Life is very compelling; whenver we sit down and show it to someone, their mind is summarily blown and they very often sign up for an account. The problem is a chicken and the egg one -- showing Second Life in person isn't scalable and screenshots just don't do it justice. You really need to see avatars flying around, building amazing creations, chatting with eachother in order to get it. The energy of that experience is what sells Second Life -- the raw, unedited magic, but until recently we couldn't bottle the magic.
He says this is profound. It is. Read the whole thing.

When are we going to get a "Best of Video," Reuben? How long do you think it will take before members of Second Life demand the right to broadcast out on their own? Will Cory Doctorow's book signing be carried on Second Life TV? I can't wait to see what happens with this.

Very exciting, innovative stuff.

Comments (2) + TrackBacks (0) | Category: Culture | Games | Internet | Machinima

June 22, 2005

June 21, 2005

June 13, 2005

June 12, 2005

June 11, 2005

June 10, 2005

I Believe: The Tools, They're Out There

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Posted by Ernest Miller

Earlier this week I responded to Beth Noveck's call for more progressive prescriptions in cyberlaw (In Search Of: A Positive Agenda for the Copyfight). Beth has responded, and expanded and clarified what she meant (Cyber-Progressivist Design).

But, the remedy, as I see it (because it's what I enjoy and do best) is not to be found only in pursuing a new legislative agenda. What my earlier post was intended to point out is that technology design itself can be brought to bear to strengthen our democratic culture and its values. By technology design, I am not simply referring to network architecture or an open source back-end. I believe we must exploit the "front end" and the design of the interface to shape social relations. It is the front end, the screens through which we interact, not simply with the computer, but with each other that are the best tools for anyone and everyone to use to encourage more participatory, engaged and deliberative ways of living and working. To foster freedom of expression and creative flourishing, we need to create the tools that enable groups to solve problems, make decisions, resolve conflict and govern themselves. Like law, technology, too, determines the roles and rights available to us. But technology also affords us new opportunities for regulating our own social conditions. Technology can make the rules, structures and practices of the groups in which we work manifest and thereby give rise to social institutions.

But I'd like to say that I think there is a lot of that already going on out there. More could be done, certainly, but I'm having a hard enough time keeping up with the ongoing change as it is. I would also tend to emphasize the changes in the network architecture as critical. The front-end is very important, but the network architecture is at least as important. There would be no browswer (the front end) without HTML and HTTP. There would be no HTTP without TCP/IP. Right now I think the most amazing thing to foster freedom of expression and creative flourishing is lowly RSS, which should stand for Revolutionary Simple Syndication, instead of Really Simple Syndication.

Podcasting wasn't even a term a year ago (Broadcatching on the iPod Platform), yet it has taken off like a rocket and people are innovating in the space on a daily basis. It is hard to imagine how to integrate this extremely promising tool into the front end yet; its changing too quickly. The best we can do right now, I think, is to ride this innovation wave and participate in the experiment. Come up with new, cool ways of using these tools. And progressives are.

BitTorrent wasn't imagined by progessives, yet it is another of the radically transformative network architecture technologies that will change and enable groups in myriads of ways. BitTorrent is ripe for some social hacking, and people are working on it.

Blogging has its own set of developing social organizing tools, trackback,, PubSub, and Technorati, to name but a few. They may be back end, but they are absolutely key to creating social and discussion networks.

Two words: Second Life.

Working on and improving tools such as these is progressive. And I wouldn't hesitate to bet that many of those working on these tools are doing so at least partly out of an impulse to create more democratic social institutions.

There are also groups whose explicit goals are exactly what Beth wants. For example, Downhill Battle has begotten Participatory Culture, which is working on the Broadcast Machine:

Broadcast Machine is software for your website that can publish fullscreen video files to thousands, using torrent technology to reduce or eliminate bandwidth costs. It is free, open source, and designed for easy installation. Broadcast Machine features an intuitive interface, integrated torrent creation, and flexible channel management. It creates a browsable archive of videos on your website, but its real purpose is to be the perfect publishing tool for our video player that comes out in June. Broadcast Machine creates channels that, viewed in the player, give people a TV-like experience.
There is also Participatory Politics, which states on its front page:
Elections are nice, but we have a chance to go further. Participatory Politics builds software tools and websites that create new opportunities for continual engagement with government.
The more the merrier, I say, but I'm hardly pessimistic that technological innovators are not paying enough attention to creating more democratic social spaces.

Comments (1) + TrackBacks (0) | Category: Internet

June 09, 2005

June 08, 2005

June 05, 2005

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

ICANN Approves '.xxx' Top Level Domain

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Posted by Ernest Miller

The Associated Press reports that ICANN has approved a new top-level domain ".xxx" (Internet Group OKs 'xxx' Web Addresses). Read ICANN's brief announcement here: ICANN Moves Forward in First Phase Commercial & Technical Negotiations with an Additional sTLD Applicant. ICM Registry is the lucky company that can sell the domain names for 10x the going price for a .com domain. Read their press release:ICANN Approves .xxx Sponsored Top-Level Domain Application.

An international cross-section of the responsible online adult-entertainment industry has expressed its support for the new TLD and indicated its willingness to work through the International Foundation for Online Responsibility (IFFOR), the Canadian non-profit, multi-stakeholder organization that is sponsoring the TLD to combat child pornography and to regularize business processes and to ensure that children and others who do not wish to access adult entertainment online can easily avoid it.
Great. It is voluntary now, but expect renewed efforts in Congress and certain of the states to require those with material "harmful to children" to register in the .xxx domain. Also, expect a rash of new trademark litigation, particularly with regards to dilution and tarnishment when the .xxx domain sale begins. And what is this about stopping child porn? How will a top level domain have any impact on that?
via How Appealing


Seth Finkelstein calls the new domain "pornographic titillation" (.XXX Domain Approved).

Techdirt links to a number of their previous postings on the concept (ICANN Finally Agrees To Build An Online Red Light District).

Comments (1) + TrackBacks (0) | Category: Internet | Rating and Filtering | Trademark

May 27, 2005

Google Print Goes Live!

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Posted by Ernest Miller

There has been all sorts of controversy about Google's decision to scan and digitize university libraries and make full-text search of the works available, see, Google's Library Digitization Plan Runs Into Opposition, but it is now live (though I am sure many more books are still to be added): Google Print: Beta.

Read About Google Print.

It is definitely beta, it is definitely rough, but the potential is obvious. One thing I would really like would be to search only through works that are out of copyright, such as those printed before 1923. Of course, this just goes to show what a transactional mess not having fixed-term copyright creates. How the heck is Google supposed to figure out which books published after 1923 are in copyright? Stupid copyright law.


Comments (0) + TrackBacks (0) | Category: Copyright | Internet

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

May 25, 2005

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

Piggy Bank = The Semantic Web?

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Posted by Ernest Miller

Well, not quite, but the application does seem very interesting and worth playing around with a bit (Piggy Bank). From the introduction:

Piggy Bank is an extension to the Firefox web browser that extracts information from existing web pages and stores it in RDF. If a web page already links to RDF information, extraction simply means retrieving that information. Otherwise, Piggy Bank employs custom software code that untangles the “pure” information from the web page’ formatting.

Having extracted the “pure” information and stored it on your computer, Piggy Bank can now apply its own user interface to let you browse through that information independent of the original web sites. For example, Piggy Bank can call upon Google Maps to display geographical information even if the original web sites do not offer cartographic views of their data.

Furthermore, by storing “pure” information from different web sites in the same data model, Piggy Bank can offer a unified view on the “pure” information regardless of its many origins.

The piece of software code that Piggy Bank uses to “purify” information within a web page is called a screen scraper. Different screen scrapers are made for different web pages. Piggy Bank supports an easy way to install screen scrapers, so that getting better use of a web page’s information is just a few clicks away.

I'm a bit too tired to play with it tonight, but would be interested to hear other's comments.

Comments (0) + TrackBacks (0) | Category: Internet

May 18, 2005

May 16, 2005

August 30, 2004

The Google File System

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Posted by Ernest Miller

Slashdot points to an extremely interesting Google Gmail hack - the Gmail File System (GmailFS - The Google File System):

GmailFS provides a mountable Linux filesystem which uses your Gmail account as its storage medium. ... GmailFS supports most file operations such as read, write, open, close, stat, symlink, link, unlink, truncate and rename.
Most of the comments on Slashdot deal with the fact that this hack probably violates Google's terms of service and may result in users having their accounts abruptly terminated. However, there are some insightful ones (Re: GoogleOS).

More importantly, this does point towards another piece of the internet operating system puzzle (or, more specifically, Google Operating System).

Gee, I wonder if the advent of a Google Operating System will have any impact on copyright law, telecom regulation, etc., etc., etc...

On a somewhat related note (GoogleWatch Says 'Google Is Dying').

Comments (0) + TrackBacks (0) | Category: Copyright | Internet | News | Open Standards | Telecomm | Tools

July 21, 2004

FCC Roundtable on Regulating the Internet

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Posted by Ernest Miller

As the communications world migrates to IP-based services, the FCC feels that it is losing regulatory control over the endpoints of the network (where most of the interesting stuff is happening). Consequently, the FCC is trying to figure out ways that it can regulate the endpoints, either through breaking the end-to-end principle and/or direct regulation of the application layer. This should be a scary thought to anyone who thinks dumb networks are a really good idea. As part of this massive regulatory shift, the FCC will be holding a roundtable discussion on July 30, 2004 (FCC Announces Agenda and Featured Panelists for July 30, 2004 Global Roundtable Discussion on Internet-Protocol Based Services [PDF]):

On Friday, July 30, 2004, the FCC’s Internet Policy Working Group (IPWG) will hold a roundtable discussion to address international issues associated with the migration of communications services and applications to IP-based technologies. The event is open to the public, and seating will be available on a first-come, first-served basis.

Comments (0) + TrackBacks (0) | Category: Internet | Telecomm

June 28, 2004

End-to-End Must Die So that National Security May Live

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Posted by Ernest Miller

Prof. Susan Crawford has been breaking and following some monumentally important stories recently. Her latest regards one of my favorite federal agencies, the FCC, and the huge power grab it is considering exercising with regard to the internet. This is no joke, the FCC is considering regulating everything that uses the IP protocol (Nethead/Bellhead -- Noticing DHS). If you think this is just about the big telecoms, you're wrong:

"[National Security/Emergency Preparedness] NS/EP considerations provide a compelling rationale for applying a certain amount of regulation to IP-enabled services. The purpose of such regulation would be to ensure the prioritized availability of certain communication services to Federal, state, and local officials and first responders in times of emergency or national crisis."
Crawford is quoting from the Department of Homeland Security filing in the IP-related services proceeding (In the Matter of FCC Review of Regulatory Requirements for IP-Enabled Services: Comments of the Department of Homeland Security [PDF] The fun part of this document is that it won't let you copy/paste).

How much regulation is necessary?

"In the event of crisis, NS/EP national leadership must receive end-to-end priority treatment over other users. . . . NS/EP traffic must be identified with its own class of service -- above and beyond "best effort."
This, of course, would mean the end of end-to-end as IP providers would have to check packets to see if they were specially marked by the government (which would require all sorts of checks so that we could be sure the packets hadn't been spoofed and what not). Basically, we would have to build into the internet a smart network. Once you've done that, all sorts of other regulations become possible.

As Crawford notes, all of this would be done in the name of national security. You're not against national security, are you?

Comments (2) + TrackBacks (0) | Category: Civil Liberties | Internet | Security | Telecomm

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

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 22, 2004

Copyfight - The Remix

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Posted by Ernest Miller

Donna Wentworth has made her blog, Copyfight, a must-read since its beginning. That is why I am honored to join her and some most excellent colleagues in continuing Copyfight as a group blog. I will be posting along with Elizabeth Rader, Jason Schultz, Aaron Swartz, and Wendy Seltzer. Read the greeting message: Copyfight--the Expanded Edition. The blog description:

Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development and technological innovation that creates--and will recreate--the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

I'll continue to post here, of course, especially my longer pieces.

Comments (0) + TrackBacks (0) | Category: Blogging and Journalism | Broadcast Flag | Civil Liberties | Copyright | Digital Millennium Copyright Act | Digital Rights Management | Internet | News | Trademark

March 15, 2004

A Race the FBI Can't Win: The Increasingly Asymmetric Costs of Wiretap Surveillance vs. Wiretap Avoidance

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Posted by Ernest Miller

LawMeme briefly summarizes and collects a number of articles on several law enforcement agencies' (FBI, DOJ and DEA) recent petition to the FCC to expand government wiretap capability (FBI seek to expand the system-formerly-known-as-Carnivore).

C|Net News reports that the petition "aims to give police ready access to any form of Internet-based communications" (FBI adds to wiretap wish list):

Legal experts said the 85-page filing includes language that could be interpreted as forcing companies to build back doors into everything from instant messaging and voice over Internet Protocol (VoIP) programs to Microsoft's Xbox Live game service. The introduction of new services that did not support a back door for police would be outlawed, and companies would be given 15 months to make sure that existing services comply.

That's just wonderful. And I suppose only the US government will have access to these backdoors?

The Washington Post (reg. req.) talks to one of the leading experts on wiretapping, CDT's James X. Dempsey (Easier Internet Wiretaps Sought):

But privacy and technology experts said the proposal is overly broad and raises serious privacy and business concerns. James X. Dempsey, executive director of the Center for Democracy & Technology, a public interest group, said the FBI is attempting to dictate how the Internet should be engineered to permit whatever level of surveillance law enforcement deems necessary.
"The breadth of what they are asking for is a little breathtaking," Dempsey said. "The question is, how deeply should the government be able to control the design of the Internet? . . . If you want to bring the economy to a halt, put the FBI in charge of deploying new Internet and communications services."

Dempsey is right. The amount of intervention in technology development necessary for the FBI and DOJ to accomplish what they want with regard to wiretapping is enormous. The costs will be both direct (money out of consumer's pockets) and indirect (loss of innovation). However, that is only half the picture. Unfortunately for the FBI, the costs to defeat the wiretapping are relatively small and will continue to decrease. We have here an asymmetric situation that will only grow more asymmetric as time goes on.

The problem is with the underlying architecture of the internet. Advances in technology along with the end-to-end/layers principle mean that it will always be cheaper to add encryption to the edges of the network than to increase the amount of surveillance at the center of the network. How much does it cost to write an encrypted VoIP app? Not much. How much does it cost to build the surveillance mechanism and conduct the surveillance across all possible ISPs? A heck of a lot more.

Ok. Now that the first encrypted VoIP app is compromised ... how much will it cost to build another encrypted layer on top of the first one? How much will it cost to conduct surveillance on this new layer? Hmmmm, if this progression continues, as we add additional layers of encryption and surveillance, the costs will increasingly diverge. Not a game you can win ultimately. In fact, it doesn't make much sense to even start. The FBI should be happy with what they've got.

Nor should we forget how darn cheap computing is getting. I wish my first computer had the power of a Treo 600. How hard is it to write voice encryption software for Treos and all the follow-on smart phones? How hard will be to add additional layers to the communications stack especially given all the various options for communication being made available through ubiquitous grid-network wireless?

If I were the FBI, I wouldn't waste my time on a battle I ultimately couldn't win and instead would concentrate my efforts on the place where I could still achieve my goals - the ends. You want to know what someone is up to online? I would recommend, for example, key loggers, "real" spyware, and social engineering. It ain't gonna be easy, but you have a chance of winning in the long term. The sooner you quit a race you can't win, the faster you can enter a race where you have a chance.

Bonus FBI Inanity: Sunday, March 14th was the 54th birthday of the FBI's "Top Ten Most Wanted Fugitive List." What better way to celebrate than with a humorous quiz? For example,

5. What Bible-carrying female impersonator was captured in 1964 while working as "Bobo the Clown" with a traveling carnival?
ANSWER: Leslie Douglas Ashley. And for extra credit, Isaie Aldy Beausoleil [apparently another man] was arrested in 1953 dressed as a woman...acting v-e-r-y suspiciously in a Chicago ladies' restroom.
7. Who was arrested in Japan, extradited to the U.S., and in Honolulu presented FBI Agents--in all seriousness--with [sic] a Monopoly "Get Out of Jail Free" card?
ANSWER: James Robert Ringrose, arrested in 1967.
And this one is really a laugh riot, har-d-har-har:
4. What Top Ten terrorist who was apprehended in 1995 said at his trial in New York City, "I am a terrorist, and I am proud of it"?
ANSWER: Ramzi Ahmed Yousef, who masterminded the 1993 World Trade Center bombing in New York and planned the bombing of an American airplane in the Far East, an act that was prevented. Judge Kevin Thomas Duffy of Manhattan's Federal District Court called him "an apostle of evil [who] wanted to kill for the thrill of killing human beings."

Bonus FBI Inanity 2: A Strengthened Partnership to Protect Children: Name that Sexual Predator! - That's the real name for the page - no foolin'. Frankly, I am somewhat disturbed when law enforcement agencies turn child abuse into a game.


Brother Dana has some observations here: Following The Chinese Way

Comments (3) + TrackBacks (0) | Category: Civil Liberties | Cryptography | Cybercrime | Internet | Privacy | Security | WiFi

February 27, 2004

The Internet's Ragnarok?

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Posted by Ernest Miller

ICANNWatch has the best coverage of the important Verisign vs. ICANN lawsuit: VeriSign Sues ICANN and Links to VeriSign Complaint Against ICANN. However, I think James Grimmelmann has the best metaphor for the legal action in his LawMeme post (SiteFinder's Revenge: VeriSign Sues ICANN).

James analogizes the lawsuit to the mythological Norse battle known as Ragnarok:

On one side, there are the forces of ICANNgard, once wise and haughty, but made impotent by their own foolishness. And on the other, VeriSoki, trickster and bringer of chaos, leads the frost giants bent on destruction. None shall survive.

That is a pretty good summary of where ICANN and Verisign have led us.

Comments (1) + TrackBacks (0) | Category: Internet

February 11, 2004

The Inefficiencies of Broadcast Television

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Posted by Ernest Miller

C|Net News reports that Major League Baseball is having difficulty getting a premium for internet "broadcast" rights (MLB throws high heat at Web portals). I put the term "broadcast" in quotes, because the internet doesn't really support broadcast. As Dana Blankenhorn writes on Corante blog Moore's Lore, MLB wrongly expects the internet to recapitulate television broadcast (Prove It).

The problem for MLB is not simply that broadband adoption rates aren't great and streaming video is pretty weak, but that the internet reduces (though it has not yet eliminated) distribution bottlenecks. Under today's regime, each of the television networks is a government telecomm regulations created portal. Because there is such a limited number of these television portals, they receive more traffic than they would in a more open distribution system. Consequently, the networks are willing to pay MLB more than they would otherwise be willing to pay under an efficient, open system.

On the internet there are portals, of course, but there are many fewer limitations on distribution. Thus, there aren't "networks" and most attempts to create them have pretty much failed. Remember Sure, MSN and AOL still have network-like elements, but as tools that help people aggregrate their preferred content (such as RSS) develop, the idea of a network of content determined from the top down begins to look a bit silly. MLB will be able to charge for their content (how much I'm not sure), but they won't be able to get subsidies from a top down network. If MLB is smart they will work on ways to ease the aggregation of their content with other content their audience will like.

However, I'm not really all that interested in how the MLB can thrive on the internet. What strikes me in this story is how inefficient broadcast television is. The lesson here is not that MLB doesn't get it. The lesson is that we have massive ineffiencies in our telecommunication regulation policies when it comes to broadcast television. The strange (though not unexpected) thing is, the FCC seems blind to them. In a recent speech, FCC Chairman Michael Powell came out strongly against regulating the internet and protecting the open nature of the network (Preserving Internet Freedom: Guiding Principles for the Industry [PDF]).

There is much to praise in these principles. Too bad there is no mention of applying them to broadcast television.

Here are some of the principles:

  • Freedom to Access Content - Not if you are trying to get that content on broadcast, cable or satellite. I'm not talking about a right to free content, but open access. My local cable company doesn't carry G4TV and I can't get it. I can get, but not the broadcast version. Why does the broadcaster/cable/satellite company get to make this choice? Why not let consumers (i.e., the market) determine more directly what is available than allow the existing gatekeepers to make the choice?
  • Freedom to Use Applications - Two words: Broadcast flag. Rather than allow the development of all sorts of new applications to take advantage of the existing network (such as TiVo), the FCC would rather give the broadcasters effective veto power over developing new technologies. The economic growth, uncertainty of "killer" apps and technological development are arguments for letting creativity run riot on the internet. Why is this not applicable to broadcast?
  • Freedom to Attach Personal Devices - Two words again: Broadcast flag. Creativity must be stifled in order that broadcast will thrive, apparently.

The broadband providers argue that without the ability to control access as well as determine what applications and personal devices may be used, they will be unable to make sufficient profit to continue rolling out broadband. Indeed, they won't roll it out. However, these arguments are bogus, and Powell is right to reject them. Of course, these are the same arguments used by the broadcasting industry with regard to HDTV. There, apparently, these arguments make sense. Of course, it would have been nice to call the bluff of the existing broadcast networks. If they didn't want to use the HDTV frequencies (afeard o' piracy), the FCC should have offered to transfer the frequencies to someone who would use them without forcing additional ineffiencies on the market.

It is great the Powell wants to preserve freedom on the internet. Too bad he is not consistent when it comes to broadcast television.

Comments (3) | Category: Broadcast Flag | Internet | Open Access

January 16, 2004

A Brief Response to Susan Crawford

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Posted by Ernest Miller

Last week, Prof. Susan Crawford challenged her readers to send her "samples of what a real cyberlaw course should cover" (What is cyberlaw?). This is truly a fascinating question and one I've thought much about. I've been meaning to write a significant bit on this subject, but just haven't had the time to do it justice. So, herewith are some brief, jumbled and confused thoughts on the subject.

I would take a look at cyberlaw as the law of networks, in the electronic realm. As I've frequently said, I believe that telecomm regulation, many freedom of expression issues and copyright are issues concerning the distribution of information. Distribution is about the network. This is the core of cyberlaw, as far as I am concerned. Therefore, I would study networking and the law, from a technological, economic, social and legal point of view.

Technology would be a major factor shaping all of these other aspects, so I would start with it and sprinkle it throughout the course. I would study the protocol stack, the end-to-end principle, circuit-switching vs. packet-switching, spread spectrum vs. standard broadcast, information theory and similar topics.

There is much that has been written on network economics, such as issues of positive externalities, tipping points, and etc.

Social networks are increasingly an element of study. It is social networks that shape and are shaped by technical, economic and legal networks.

Legally, I would start with some of the history of network law, such as the origin of common carriage for transportation and provision of government networks (such as highways, railroads and the postal service). Telecomm law is obvious, but then one can reimagine much of First Amendment law (particularly, but not limited to time, place and manner issues) as the law of networks. Finally, is not copyright more about distribution and networks of distribution, then copying?

Just a few brief comments on what I think a cyberlaw course should cover.

Comments (4) + TrackBacks (0) | Category: Internet

November 20, 2003

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

ICANN Troubles

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Posted by Ernest Miller

Two of the presenters at The State of Play conference, demonstrating their wide-ranging interests, are finding trouble regarding ICANN.

Michael Froomkin is writing about the negotiations regarding the Free Trade Area of the Americas (FTAA) treaty, in particular, the issue of domain names on the internet (Domain Names and the FTAA: A Bad Mix). Some of the problems with the FTAA as regards intellectual property have been noted here previously (IP Justice on IP in the Free Trade Area of the Americas Treaty). Froomkin is rightly critical of the mandate that countries adopt the Uniform Domain-Name Dispute-Resolution Policy (UDRP) already used by ICANN for ".com" (among others) for use with regard to each countries' top level domain name, such as .ca for Canada. If you are interested in this issue, Froomkin's post is quite informative.

Susan Crawford post is bluntly entitled, Things are getting worse at ICANN. Crawford is rightly disparaging of ICANN's report that justifies a decision to amend contracts between ICANN and the registries: Staff Manager's Issue Report on the Need for a Predictable Procedure for Changes in the Operation of TLD Registries.

Comments (0) + TrackBacks (0) | Category: Internet | Trademark

Forgotten Father of the World Wide Web

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Posted by Ernest Miller

The information design site Boxes and Arrows has published a fascinating story on Paul Otlet, who they call "the forgotten forefather of information architecture" (Forgotten Forefather: Paul Otlet). Apparently, he foresaw much of what we know as the World Wide Web in 1934. His system used millions of mechanically stored 3x5 cards to create a "universal book" or "web" of human knowledge that could be accessed by "electric telescope" and was interconnected through "links." Great stuff.

Perhaps some enterprising authors will write some alternate history stories involving Otlet. Not Victorian-era Steampunk, but rather, 1930's "Pulppunk".

via Smart Mobs

Comments (0) + TrackBacks (0) | Category: Internet

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

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

October 30, 2003

Microsoft Overtures to Google

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Posted by Ernest Miller

Whoah. The New York Times (reg. req.) has a nice summary of many of the issues involved in Google's upcoming IPO (Microsoft and Google: Partners or Rivals?). The most interesting bit of news is that a couple of months ago Microsoft approached Google about a partnership or even a takeover. Although Google rejected the offer, "Microsoft may still be interested in pursuing Google at a later date, according to an executive briefed on the discussions." The article also notes the possibility of Microsoft attempting to rival Google as Microsoft rivaled (and subsequently defeated) Netscape.

Comments (0) + TrackBacks (0) | Category: Internet

October 28, 2003

FCC Comments on Regulating Internet Explained

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Posted by Ernest Miller

As noted yesterday (FCC to Regulate Whole Internet?), there was an extremely disturbing quote from an FCC official in the New York Times:

An F.C.C. official said, for instance, that the broadcast flag could contain software code that was recognized by computer routers in a way that the program would self-destruct after passing through three routers while being e-mailed by a user.

This quote seemed to raise the possibility that the FCC was considering regulating internet routers. However, there seems to be a somewhat less evil interpretation. Although the quote is still somewhat confusing, particularly the reference to email, Seth Schoen has provided an explanation in the comments section of Freedom to Tinker (Comments: Broadcast Flag Confusion). Ed Felten summarizes thus:
The mystery sentence looks like a very confused attempt to explain the fact that DTCP-over-IP sets the Time-To-Live field on its IP packets equal to three.

This doesn't mean that we shouldn't be worried about the regulations the FCC will require in order to make the hopelessly broken Broadcast Flag "work."

Comments (0) + TrackBacks (0) | Category: Broadcast Flag | Internet

October 27, 2003

Billions and Billions ... of Addresses

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Posted by Ernest Miller

I'm too lazy to do the math myself, so just go read Andrew McLaughlin's latest posting on his blog debunking shoddy claims that we will soon be running out of IPv4 addresses (Math is Hard! - Bad Journalism, IPv6, and the BBC).

Comments (0) + TrackBacks (0) | Category: Internet