I'm pleased to announce that as a consequence of EFF's merger with the U.S. Department of Justice, announced today, I won't have to move to Canada after all. Instead, we'll be able to influence the sound development of copyright law here in the U.S. Plus, since DOJ is the acquired party, it has renounced its traditional pre-merger investigatory role.
An Ottawa Federal Court has denied the Canandian Recording Industry's (CRIA's) demand for the names of alleged music sharers, on grounds that remind us why diversity in copyright laws is a good thing: Canada's got this one right.
The court ruled that plaintiffs had not shown that they had the right targets or that their targets infringed copyright (they failed to "establish a prima facie case against the unknown alleged wrongdoer").
- Downloading a song for personal use does not amount to infringement
- Placing personal copies into a shared directory is not "distributing" or "authorizing the reproduction" of sound recordings
- There was no evidence of knowledge, necessary to secondary infringement liability
The court "cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service." The court also held that the CRIA had delayed its requests too long, presented too little evidence of methods for tracking users, and would have to reimburse ISPs if it were ever permitted discovery.
I'm honored to be joining Donna Wentworth, Aaron Swartz, Jason Schultz, Elizabeth Rader and Ernest Miller at Copyfight--the Expanded Edition. We'll be building Donna's tremendous solo copyfighting into a new group blog. Hope to see you there.
When I'm talking to lawyers about litigating on the Net, I like to remind them why an early American flag pictured a rattlesnake: Those you threaten might bite back. Cory
and Dan point up another example, when "Dr." Gray's libel-threats backfire.
From BoingBoing: Gavin Sheridan has been threatened by "Dr." John "Men are From Mars, Women are From Venus, I am From Uranus" Gray for declaring that Gray was a fraud whose degrees came from a diploma mill. Gray's lawyers demanded a retraction and reserved the right to sue for libel anyway.
Well, in an act of increasingly common Internet judo, Sheridan posted the nastygram, and the collective outrage from other Web-writers has spread the news of Gray's bullying -- and the dirt behind his degrees. Threatening to sue in order to silence a critic has simply spread the criticism much, much further.
James Gleick chronicles the increasingly frequent collisions between trademark claims and rationality in Get Out of My Namespace, NYT Magazine. Some of his examples could be drawn straight from the pages of Chilling Effects, where we see corporations threatening those who use similar names in unrelated fields (Pet Friendly, Inc. against Pet Friendly Rentals), or those whose names couldn't plausibly have been confused (PayPal against PayPalSucks.com).
Elsewhere, and even in pre-Internet trademark law, we've solved these problems by distinguishing among namespaces -- different realms in which the same name can have different meanings. Computer programmers recognize that identically named variables can have different values in different scopes; trademark lawyers of 50 years ago recognized that a "Dawn Donut" in New York didn't interfere with "Dawn Donut" in Michigan. The advent of the Internet should make us more careful in scoping our references, not throw sense and free speech out the window by giving contested domain names to the most corporate claimant.
Says Gleick: To cope with the dynamic, entangled, variegated nature of our information-governed world, perhaps the law just needs to relax -- loosen the cords, instead of tightening them.... The law needs to prevent miscreants from pretending to be people they're not or from passing off spurious products -- but that is all. BODACIOUS-TATAS.COM may be unsavory, but it was not fooling anyone; it was not trying to impersonate the House of Tata; its wares were exactly as advertised.
Namespaces will collide. Let them.
My colleague Ren has put together a nice diagram of the basic components of a voluntary collective license, along the model that EFF has proposed. Even nicer, he's posted all the source files under Creative Commons license so others can rearrange or add to the diagram with their comments.
Don't think sampling will work? Add a few "bugs" to the picture.
Like hardware levies? Add them in.
Then, please share what you rip-mix-burn
If all the open APs you can find in most urban areas weren't enough evidence, today's New York Times Op-Ed, The Free Lane on the Information Highway, shows open-access WiFi is going mainstream.
WiFi holds the promise of bridging America's much discussed digital divide — if we make it ubiquitous and free to use, like the public library system. After all, just as roads and bridges were among the most important public investments in the industrial period, wireless access to the Internet is arguably the most crucial public investment of the information age.Ubiquitous, unmetered WiFi access can help make the Internet available to everybody, with benefits that should be clear even to those unswayed by notions of "public good." Just as businesses benefit when their employees are literate (public schools and libraries) and when their customers can get to stores (public roads and mass transit), they benefit when customers can easily search their online offerings to buy their e-commerce or entertainment products.
Back in San Francisco, that is, after visiting Austin for SXSW Interactive. The best part, for me, was talking with people -- on panels and off -- who are pushing the bounds of technology to do more for us, its users and public, rather than treating us like mere consumers. Eli Pariser and Zack Exley got it, and have made MoveOn.org into a site that empowers its users as citizens. Jonathan Abrams talked, by contrast, about constraining users into his vision of what Friendster should do.
I'm sorry to have missed the Magnatune/Creative Commons party, but the EFF, EFF-Austin, Creative Commons, Magnatune party was a good preview.
Unless it's a clever hoax at CMU, here's yet another reason to demand greater security from e-voting machines than from other Diebold hardware:
A Diebold ATM in Baker hall just crashed, and dropped to a Windows XP desktop.Via Dave Farber's IP, with links to photos. But were the songs licensed for public performance?
Several intrepid students started Windows Media player, and it was playing a variety of music with a nice visualizer.
Dan Gillmor reports that the New York Times has decided not to play the heavy over The National Debate's NYT Corrections page.
It seems The National Debate offered "corrections" to NYT op eds, in a format that looked much like the Gray Lady's own. NYT sent a DMCA takedown demand to TND's ISP, claiming copyright infringement. As befits a news organization, the Times has conceded that TND had a right to parody their style, so long as it didn't confuse readers. Interestingly, the underlying complaint actually sounds more in trademark -- the NYT didn't want readers confused about the source of these "corrections," and trademark law protects against consumer confusion -- but NYT, like others we've seen, used copyright claims because the DMCA gives quick takedown process. I'm glad to see this resolved in a legally reasonable manner.
Starbucks has been in the news for the free music-listening stations it's rolling out to stores -- stop by for a few minutes of selected music with your frappucino, and maybe buy a CD on your way out. Frankly, I like the way shops around Austin have been doing it better, especially around SXSW: Open up your laptop for free WiFi access, choose any music you like from the SXSW playlist or Magnatune and listen all you want while you sip, browse, or work.
Not long after Cory blogged SXSW's no-photos, no-electricity policies, Jon announced his "photograph as much as you want" policy for his panel, and noted that it was now licit to plug in to the hallway outlets at SXSW. Thanks Jon and Cory. I'm happy to allow reporting at my panel tomorrow.
Thanks to LawGeek for sharing news of Ralph Nader's "priceless victory." A mere 3 1/2 years after Nader ran "Priceless" TV ads, a court has granted his motion for summary judgment, finding no copyright or trademark infringement. The decision offers nice analyses of copyright fair use and trademark non-commercial use, and you've got to love phrases like:
As a matter of law, plaintiff has failed to show a genuine issue of material fact as to the likelihood of confusion between MasterCard's financial services and Ralph Nader's 2000 presidential political campaign.
Now if Nader would just take this win and retire... In the meantime, let's see Pat Buchanan pick up some of the votes on the other side: Run Pat Run.
This morning, someone called to ask me for images I'd used in a presentation a year and a half ago. Time was, I would have had to search my hard drive or archived files for the slides, if I'd saved them at all. Now, instead, I've let the web be my filing system, and Google serve as index. I could find the presentation in minutes, and email off a URL in seconds more. With the whole thing under a Creative Commons license, I'd also given the caller an easy set of terms on which to use it.
...but at least great folks like these are wearing the EFF hat:
Howard Rheingold, David I, James Roberts at O'Reilly ETCon. via
isen.blog
Of course we're also well represented by Cory and Jason Schultz.
I've been thinking about anonymity lately, in the context of RIAA subpoenas and lawsuits, ICANN's WHOIS task forces, and most recently, proposed HR 3754. I've heard from many people, lawyers and technologists alike, who don't seem to recognize that our rights to anonymous speech have deep roots. Many see anonymity as a bug of Internet architecture, to be eliminated in the next revision; or at best a feature of limited value readily traded off against other costs and benefits.
The U.S. Supreme Court has held otherwise, finding that a constitutional right to anonymous speech is derived from the First Amendment. Requiring a speaker to identify him or herself, after all, "abridg[es] the freedom of speech". Thus the State of Ohio couldn't require campaign literature to be signed with name and address of its distributor (McIntyre v. Ohio Elections Commission); the Village of Stratton couldn't force canvassers going door-to-door to register first, despite strong local government interests in preventing fraud (Watchtower Bible & Tract Society v. Village of Stratton). Even significant government interests in protecting their citizens can't be met with restrictions on anonymous speech.
Declan McCullagh's latest column points out some of the historical uses of anonymity, from the days when "Publius" authored the Federalist Papers. More currently, whistleblowers use anonymity to expose company wrongdoing; human rights activists use anonymity to report human rights abuses; uncertain teenagers and adults use anonymity or pseudonymity to discuss their sexuality; and citizens of all political stripes still use anonymity to debate politics and governance without being judged on their personal atributes.
Granted, not everyone is using anonymity for such laudable purposes, but some people are, and that's enough. Plenty of laws that don't burden anonymity already address the misuses. The others are entitled to use anonymity up until the point that they are found to have misused it, not to have this fundamental right stripped on mere accusations.
Dan Gillmor warns that Verisign is looking to relaunch its loathed SiteFinder: "VeriSign will ultimately do whatever it can get away with."
VeriSign characterizes SiteFinder opponents as anti-innovation ("an ideological belief by a narrow section of the technological community who don't believe you should innovate the core infrastructure of the Internet") but that couldn't be further from the truth. Most technologists strongly support innovation, they just don't believe that VeriSign should be able to parlay its monopoly on the .com and .net naming hierarchies into a monopoly on innovation. As Paul Vixie puts it:
"What they're saying is, 'We want to shift cost to the community to increase our profit,'" Vixie said. "This is a form of theft by most legal definitions, if you're going to shift costs unilaterally toward another group of people to increase your own profits. It's certainly unethical and immoral and it would be illegal if you were to do it with physical goods."I've said it before and will say it again, keeping the center simple best promotes innovation overall.
Here's an MP3 of yesterday's fantastic oral argument in MGM v. Grokster, before the Ninth Circuit Court of Appeals. It's public domain, so share freely on the peer-to-peer networks whose legality Fred von Lohmann and Mike Page eloquently defend.
Talk about false and misleading identification information, the recently introduced Fraudulent Online Identity Sanctions Act should really be called the "Slam the First Amendment Act." It bumps the penalties for trademark or copyright infringement to "willful" levels -- that's up to $150,000 in statutory damages per copyright infringement -- for the mere connection of the infringement to a domain name registered with false information. Never mind that using false information in the address or telephone number fields may be the only way for individuals to protect their privacy; or that the First Amendment rights to anononymous speech may depend on the ability to register a name with "false" pseudonymous contacts. Would Publius be slammed as a willful infringer if someone claimed that the Federalist Papers took a few too many quotations from other sources?
The maximum imprisonment other- wise provided by law for a felony offense shall be increased by 7 years if, in furtherance of that offense, the defendant knowingly provided material and misleading false contact information to a domain name registrar, domain name registry, or other domain name registration authority in connection with a domain name registration.
Thomas Roessler blogs the hearing and Susan Crawford goes into more detail on the bill.
Travelling back from Cape Town, and the fascinating IDLELO conference on the African digital commons (more on that later), I had to pass through Atlanta's Hartsfield-Jackson Airport. Apart from the glaring lack of wifi, the airport was notable for an odd addition to passenger screening: As we queued for the TSA belt, there was a foot-testing platform outside, where we could see for ourselves whether our shoes would beep in the screening line.
What purpose does the foot-tester serve, other than to illustrate the paradoxes of so-called security? I imagine passengers complained that they didn't know whether or not to remove their shoes, so someone decided to give them a helping foot.
But if the foot-tester device is accurate (and it'll cause more frustration than help if it's not), then it serves as an oracle, letting good guys and bad guys alike determine whether they're likely to be picked up. I stepped on and off several times without being questioned. A would-be shoe bomber could probably use a more sinister variation: If the machine beeps, walk away; try again later with cooler shoes; repeat until the machine stays silent. The tester makes it easier for bad guys to see the detection devices' limit and tailor their implements of destruction just below that cutoff.
I tend to doubt the value of most of the so-called security measures we're subjected to in airports, but I'd rather see them removed than modified in bizarre feel-good ways. As it is, this foot-tester seems to create more risks than it solves. Have I missed something?
Google appears to have removed the broken WHOIS search -- screenshot (though it's added other features such as UPC and area codes). Why the WHOIS went away, I'll have to investigate further when I return from Cape Town to a more regular 'Net connection.
Ev notes that Google now offers WHOIS lookups. Type "whois google.com" into a Google searchbox, and the first result is an offer to show you the WHOIS data for the domain name registration.
Two questions:
- If you registered a domain name, did you know your personal information would be made so publicly accessible, or would you prefer to be able to register without giving out a home address and phone number?
- Why doesn't Google have a WHOIS provider that knows that NetSol is no longer the source for .ORG data? (See e.g. whois seltzer.org)
- ok, 3: Why does NetSol get to limit provision of WHOIS data by quantity requested, but not to help people keep their addresses private?
The IP address from which you have visited the Network Solutions Registrar WHOIS database is contained within a list of IP addresses that may have failed to abide by Network Solutions' WHOIS policy. Failure to abide by this policy can adversely impact our systems and servers, preventing the processing of other WHOIS requests.
If you're unhappy about WHOIS and privacy or research, please help me add your thoughts to the ongoing ICANN task forces' consideration.
Maybe it's time for Intellectual Property Law Barbie, suggests the L.A. Times, reporting on artist Tom Forsythe's legal victory over Mattel. Forsythe took photographs of food chain barbie, in which "Barbie is about to be destroyed or harmed by domestic life in the form of kitchen appliances, yet continues displaying her well known smile, disturbingly oblivious to her predicament." The Ninth Circuit held that this was fair use of the copyrighted Barbie image and fair use of the Barbie trademark and trade dress. "Allowing Forsythe’s use serves the aims of the Copyright Act by encouraging the very creativity and criticism that the Act protects."
Fashionable pink hats off to Forsythe and his defenders at Howard, Rice and the ACLU. Plus a side note of thanks to Mattel for getting itself into such wonderful scrapes. As Judge Kozinski put it in Barbie's battle with the band Aqua, "The parties are advised to chill."
Thanks to danah boyd for challenging my claim that social norms are "behind" technology.
Social norms aren't behind; they're baffled at the direction in which things are going. They're pushing for a different direction and they aren't being heard.I think we agree there's been a slippage between norms and technology. Maybe it betrays a technology-centric view that I'm waiting for norms to catch up with changed technology. Perhaps the LiveJournalers consider that they've evolved a set of social norms to which they're waiting for technology to adapt.
danah's right to warn us away from the technological imperative -- thinking that just because tech can do something, it should or must. The Napster example shows that law can stop even good tech; but the continued spread of peer-to-peer music sharing suggests that law doesn't always shape norms. Better technologies will support social norms, not fight or frustrate them, or they'll likely die lacking a market. From whatever particular angle we begin looking at a problem, we shouldn't forget to look at the other constraints, and we shouldn't presume that our "native" viewpoints offer the best perspective.
Joi Ito posts on the conundrum of semi-private online spaces, those that don't have access controls but whose authors seem to have an expectation of privacy nonetheless:
How many people who blog know that many blogs automatically send trackbacks or send pings to pingers sites like weblogs.com? ... One of the problems of using the "big time bloggers" to design the technology is that we often forget that many people would rather NOT have their contexts collapsed.We early adopters know how referer logs work; we know that Google and the Internet Archive (and a host of less benign others we don't know) can keep their argus eyes on everything we do. We know how to write .htaccess files, or at least whom to ask for something similar, if we want better (though still not total) privacy. We've internalized the norm that conduct not marked private is public.
There's a privacy tension that springs from differing understandings of technological capabilities -- and the social spaces they affect. Most of us at a Creative Commons party know tiny digital cameras and phonecams; we're attuned to the norm that everything we do in public may be photographed and webbed unless we specifically object. But others, in other places, may not share that technological familiarity; they think their activity is private, within the circle of those actually present or invited. Just as they don't realize that referer logs and search can advertise "private" pages, they don't expect that an in-person meeting will migrate online to a wider public.
Yet there's also a second-order tension, even among those who fully understand the technoloy. We can appreciate its capabilities and still regret the loss of privacy. What could previously be left implicit, the distinction between a private gathering and a public event, must now be spelled out before the webloggers and mobloggers get to work. We haven't yet found a good technological replica for those intermediate spaces between secret and world-readable. (It's not just copyright holders who worry about the ease of digital redistribution; and trusted computing isn't the answer to either's concerns.)
I wondered at first if privacy tensions would ease as more people became more technically sophisticated, but I'm inclined to think that gaps in understanding will just move with the tech, and social norms will follow still further behind.
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