February 26, 2013

Surveillance Forever! [5:11 pm]

Clapper v. Amnesty International — apparently, “chilling effects” are not sufficient to give standing when seeking an injunction against sweeping surveillance.

[...] Respondents — attorneys and human rights, labor, legal, and media organizations — are United States persons who claim that they engage in sensitive international communications with individuals who they believe are likely targets of §1881a surveillance. On the day that the FISA Amendments Act was enacted, they filed suit, seeking a declaration that §1881a is facially unconstitutional and a permanent injunction against §1881a-authorized surveillance. The District Court found that respondents lacked standing, but the Second Circuit reversed, holding that respondents showed (1) an “objectively reasonable likelihood” that their communications will be intercepted at some time in the future, and (2) that they are suffering present injuries resulting from costly and burdensome measures they take to protect the confidentiality of their international communications from possible §1881a surveillance.

Held: Respondents do not have Article III standing. [...]

[...] ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

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February 11, 2013

Upcoming Event: Feb 19 at Harvard Law School [10:17 pm]

the next words: A Lecture on Aaron’s Law: from Lawrence Lessig, the Roy L. Furman Professor of Law and Leadership at Harvard Law School.

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July 29, 2012

“Kopism” [2:52 pm]

In Sweden, Taking File Sharing to Heart. And to Church. [pdf]

People almost everywhere are file sharing these days, using computers to download music, films, books or other materials, often ignoring copyrights. In Sweden, however, it is a religion. Really.

Even as this Scandinavian country, like other nations across Europe, bows to pressure from big media concerns to stop file sharing, a Swedish government agency this year registered as a bona fide religion a church whose central dogma is that file sharing is sacred.

“For me it is a kind of believing in deeper values than worldly values,” said Isak Gerson, a philosophy student at Uppsala University who helped found the church in 2010 and bears the title chief missionary. “You have it in your backbone.”

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July 16, 2012

A Search Service Runs Awry of © [9:25 pm]

A test of contributory infringement and search? U.S. Pursuing a Middleman in Web Piracy [pdf]

Richard O’Dwyer, an enterprising 24-year-old college student from northern England, has found himself in the middle of a fierce battle between two of America’s great exports: Hollywood and the Internet.

At issue is a Web site he started that helped visitors find American movies and television shows online. Although the site did not serve up pirated content, American authorities say it provided links to sites that did. The Obama administration is seeking to extradite Mr. O’Dwyer from Britain on criminal charges of copyright infringement. The possible punishment: 10 years in a United States prison.

The case is the government’s most far-reaching effort so far to crack down on foreigners suspected of breaking American laws. It is unusual because it goes after a middleman, who the authorities say made a fair amount of money by pointing people to pirated content. Mr. O’Dwyer’s backers say the prosecution goes too far, squelching his free-speech right to publish links to other Web sites.

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July 2, 2012

ReDigi Causing Unrest [8:27 am]

The used record store goes digital Music resale brings a digital showdown [pdf]

When Pete Brown got tired of his Don Henley album, he did what music fans have done for decades. He sold it.

But Brown’s version of the rock classic was digital. The 31-year-old liquor distributor from Indianapolis downloaded it from Apple’s iTunes music store and resold it on ReDigi.com, the Web’s first consignment shop for digital music, which a Cambridge start-up launched in October.

He earned a few bucks but may have broken the law in the process, though iTunes’s terms and conditions do not explicitly prohibit users from reselling their purchases. Capitol Records is suing ReDigi for allegedly violating copyright law and running a business “built on widespread, unauthorized copying of sound recordings.”

The case is making its way through federal court and is expected to determine the legitimacy of a secondary marketplace for these downloads. But it could also bring a landmark decision on how copyright law applies to digital albums, electronic books, and feature films that are downloaded on the Web, according to legal scholars.

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June 11, 2012

A Few Updates [1:43 pm]

  • Radio Royalty Deal Offers Hope for Industrywide Pact [pdf]

    So why did Clear Channel change its position, breaking ranks with its powerful lobbying group, the National Association of Broadcasters?

    The answer apparently has nothing to do with politics; with Republicans expected to retain control of the House in this year’s elections, few in the industry predict a new Washington battle is likely. Rather, it has to do with digital music, and Clear Channel’s desire to reshape its business in anticipation of rapid changes in the marketplace.

    When the first webcasting laws were passed in the 1990s, labels and artists gained the right to performance royalties for online streams. But webcasters have long complained about the size and structure of these royalties, which are set by federal statute. The more people listen, the more the companies have to pay — unlike on radio, where stations pay a set percentage of revenue to music publishers. Pandora Media pays more than half its revenue in music royalties.

    For Clear Channel, digital royalties are a looming problem. Today, 98 percent of listening to its stations is through its 850 terrestrial radio stations, and 2 percent is online, the company said. But that is expected to change, which would leave Clear Channel and other broadcasters exposed to expanding royalty payments. To limit those expenses, Clear Channel struck its deal with Big Machine, bypassing the federal “penny rate” for a share of advertising revenue, both online and over the air.

  • Disruptions: For HBO, Still Beholden to a Cable Company [pdf]

    Yet Eric Kessler, co-president of HBO, must have a different calculator in his office. “At this time, the economics simply don’t support a standalone HBO Go,” he said. “We make our programming, including ‘Game of Thrones,’ available on numerous platforms for our subscribers and then on DVD and electronic sell-through for those choosing not to subscribe to a TV provider.”

    HBO told me that “Thrones” would be out on DVD in eight months, so I experimented with the piracy option, too. It took me all of 22 seconds to begin watching the latest episode through the illicit route of an online storage service and an illegal BitTorrent site. I get it. HBO has a great business model, and it will try to hang onto that model for as long as possible.

    But technology doesn’t wait. People keep finding new ways to get what they want.

    “It’s hard to stop piracy by creating laws, it’s better to ask why are people downloading these shows — that’s much more productive,” Mr. Van Der Sar said. “Downloading is already illegal. More laws are not going to help.”

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April 29, 2012

A Nice Starting List [5:01 pm]

But I think there are lots of fine details missing: Unexceptionalism: A Primer by E. L. Doctorow [pdf]

TO achieve unexceptionalism, the political ideal that would render the United States indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries of the world, do the following:


If you’re a justice of the Supreme Court, ignore the first sacrament of a democracy and suspend the counting of ballots in a presidential election. Appoint the candidate of your choice as president.

If you’re the newly anointed president, react to a terrorist attack by invading a nonterrorist country. Despite the loss or disablement of untold numbers of lives, manage your war so that its results will be indeterminate.

Using the state of war as justification, order secret surveillance of American citizens, data mine their phone calls and e-mail, make business, medical and public library records available to government agencies, perform illegal warrantless searches of homes and offices. [...]

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April 18, 2012

Some Things To Read [5:18 pm]

  • How Modding Changes Art [Pajiba]

    Take the recent furor over Mass Effect 3. When a movie trilogy has an ending that pisses off a bunch of fans, their blood boils and the Internet ripples with a flood of foaming fury. But that’s it. Maybe it gets Mysterious Science Theatre treatments, maybe some few enterprising fans make fan cuts once the DVD gets released. What you don’t see is people writing their own end to the movie, filming it, and releasing it such that it can be integrated with the original.

    There’s a sort of community ownership going on that transcends copyright. It’s individuals saying that this piece of art belongs to the community and therefore the community can change it, tweak it, improve upon it. It’s a democratization of art that is only possible in a given field once the technology is such that anyone can do it on their own.

  • Carriers Warn of Crisis in Mobile Spectrum — as David Reed says, “Yeah, right.”

    Arguing that the nation could run out of spectrum is like saying it was going to run out of a color, says David P. Reed, one of the original architects of the Internet and a former professor of computer science and engineering at the Massachusetts Institute of Technology. He says electromagnetic spectrum is not finite.

    Mr. Reed, who is now senior vice president at SAP Labs, a company that provides business software, explained that there are in fact newer technologies for transmitting and receiving signals so that they do not interfere with one another. That means separating the frequency bands would not be required — in other words, everybody could share spectrum and not run out.

    The reason spectrum is treated as though it were finite is because it is still divided by frequencies — an outdated understanding of how radio technology works, he said. “I hate to even use the word ‘spectrum,’ ” he said. “It’s a 1920s understanding of how radio communications work.”

  • Let the Nanotargeting Begin — for some privacy nightmares:

    Advances in the speed of computers and constantly improved software have created, in just over a decade, the development of a new political industry, nanotargeting — microtargeting to the nth degree. There has been excellent reporting on the innovative work of this industry, along with debunking of excessive claims.

    Parsing data gives politicians and their campaigns ways to identify and communicate with segments of the electorate that would have been out of reach not long ago.

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February 8, 2012

Pot, Kettle, Black [10:25 am]

Cary Sherman is going to convince you, no matter what it takes — but this is a real tour de force: What Wikipedia Won’t Tell You [pdf]

Misinformation may be a dirty trick, but it works. Consider, for example, the claim that SOPA and PIPA were “censorship,” a loaded and inflammatory term designed to evoke images of crackdowns on pro-democracy Web sites by China or Iran. Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal? When the police close down a store fencing stolen goods, it isn’t censorship, but when those stolen goods are fenced online, it is? Wikipedia, Google and others manufactured controversy by unfairly equating SOPA with censorship. They also argued misleadingly that the bills would have required Web sites to “monitor” what their users upload, conveniently ignoring provisions like the “No Duty to Monitor” section.

The hyperbolic mistruths, presented on the home pages of some of the world’s most popular Web sites, amounted to an abuse of trust and a misuse of power. When Wikipedia and Google purport to be neutral sources of information, but then exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading, they are duping their users into accepting as truth what are merely self-serving political declarations.

Later: Looks like The Times is going to work this — In Piracy Debate, Deciding if the Sky Is Falling [pdf]

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January 9, 2012

Nice! [10:07 am]

You so rarely see it stated so blatantly — “creators” at work! With ‘Porgy’ on Broadway, Gershwin Heirs Flex Their Rights [pdf]

But estate decision making has been most controversial in the case of “Porgy and Bess.” The Gershwin heirs — chiefly nephews and grand-nephews of George and Ira, who had no children of their own — sought a Broadway-suitable “Porgy” to license to other musical producers worldwide with the hopes of earning millions of dollars before the right to the famous songs expire in 2030.

With that in mind they encouraged the trimming of the opera nearly by half, and approved some updating, including a reconciliation scene at the end. The goat-pulled cart of the disabled Porgy is out; a cane and leg braces are in. If all goes well, they may pursue a movie.

“Our responsibilities are to not have ‘Porgy and Bess’ stuck in an attic, to open up the property to younger generations, and to make money for the families,” said Jonathan Keidan, a 38-year-old digital media executive whose grandmother was George and Ira’s sister and who is now a trustee of George’s estate.

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December 13, 2011

An (Uncommon) Elegant Solution [9:19 pm]

I bring this to your attention not just because I really enjoy David Malki!’s Wondermark, but because, sometimes, there’s a better way — Calendars: SOLD OUT. Engineering: STILL LOUD.

A few people have written to tell me that they saw a shirt with this same slogan in the Signals catalog, or on their website. They are right to think that it was done without my knowledge or approval — I’d never let a design this ugly go out: [...]

This is a tricky situation — legally, you cannot copyright a short phrase or slogan. (That’s why you can see stupid slogans like “FBI: Female Body Inspector” on fifty million different T-shirts in fifty million different tourist shops.) A design is copyrightable, but in this case they only used the words. You can trademark a slogan, but that costs a fair amount of money, and I hadn’t done that. (Maybe I should.)

[...] The knee-jerk response is “Cease and desist! Sue! Call a lawyer!” This implies that (a) the issue cannot be solved through more amicable means, and (b) I have a lot of time and money to throw at this kind of problem. The latter is not true, and I like to at least allow for the chance that the former isn’t either. There’s a lot of double negatives in that sequence, so I’ll restate: Being aggressive puts people on the defensive. Being friendly gets people to help you.

Also, always give the party in the wrong the ability to back off gracefully.

Read it all for a nice story — and a welcome contrast to this SOPA bullshit: Media and Entertainment Companies Add Support to Proposed Antipiracy Legislation.

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November 16, 2011

Rebecca MacKinnon on the Protect IP Act [2:03 pm]

Firewall Law Could Infringe on Free Speech [pdf]

China operates the world’s most elaborate and opaque system of Internet censorship. But Congress, under pressure to take action against the theft of intellectual property, is considering misguided legislation that would strengthen China’s Great Firewall and even bring major features of it to America.

The legislation — the Protect IP Act, which has been introduced in the Senate, and a House version known as the Stop Online Piracy Act — have an impressive array of well-financed backers [...]. The bills aim not to censor political or religious speech as China does, but to protect American intellectual property. Alarm at the infringement of creative works through the Internet is justifiable. The solutions offered by the legislation, however, threaten to inflict collateral damage on democratic discourse and dissent both at home and around the world.

Wednesday’s House Judiciary Committee hearing: Hearing on: H.R. 3261, the “Stop Online Piracy Act

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November 15, 2011

A Little Identity Contretemps [12:14 pm]

Rushdie Wins Facebook Fight Over Identity [pdf]

As the Internet becomes the place for all kinds of transactions, from buying shoes to overthrowing despots, an increasingly vital debate is emerging over how people represent and reveal themselves on the Web sites they visit. One side envisions a system in which you use a sort of digital passport, bearing your real name and issued by a company like Facebook, to travel across the Internet. Another side believes in the right to don different hats — and sometimes masks — so you can consume and express what you want, without fear of offline repercussions.

The argument over pseudonyms — known online as the “nym wars” — goes to the heart of how the Internet might be organized in the future. Major Internet companies like Google, Facebook and Twitter have a valuable stake in this debate — and, in some cases, vastly different corporate philosophies on the issue that signal their own ambitions.

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November 2, 2011

Rolling Stone on Music Economics [5:29 pm]

The New Economics of the Music Industry [pdf] (some nice charts with revenue distributions here)

In the old days, it was much easier for pop stars to keep up with how much they were getting paid. Somebody would buy a CD at a Tower Records for $15 and a few dollars would appear months later on the stars royalty sheet. Then iTunes took over the record business, and it was even easier if not more profitable – every time somebody bought a 99-cent track, a few pennies went into the artists bank account.

Those were such simple times. Today, music fans play free music videos on YouTube, stream songs for free on Spotify, MOG or Rdio, customize Internet radio stations on Pandora or Slacker and consume music a zillion different ways. The fractions of pennies artists make for each of these services are nearly impossible to track – at least for now. “People like to simplify this and say, Theres no money in it,” says Jeff Price, founder of TuneCore, which charges artists to place songs directly into iTunes, Spotify and others. “But its complex, its complicated and its still being worked out.”

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November 1, 2011

Artist’s Resale Royalties [2:59 pm]

This is going to be quite a case: Artists File Suit Against Sotheby’s, Christie’s and eBay [pdf]

When the taxi baron Robert Scull sold part of his art collection in a 1973 auction that is considered the beginning of today’s money-soused contemporary-art market, several artists watched the proceedings from a standing-room-only section in the back. There, Robert Rauschenberg saw his 1958 painting “Thaw,” originally sold to Scull for $900, bring down the gavel at $85,000. At the end of the Sotheby Parke Bernet sale, Rauschenberg shoved Scull and yelled that he didn’t want to work so hard “just for you to make that profit.”

The uproar that followed led the California legislature to pass a law, the California Resale Royalties Act, requiring anyone reselling a piece of fine art who lives in the state, or who sells the art there for $1,000 or more, to pay the artist 5 percent of the resale price.

That law is now at the center of a pair of class-action suits brought by the artists Chuck Close and Laddie John Dill and the estate of the sculptor Robert Graham against the auction powerhouses Sotheby’s and Christie’s and the online auction site eBay for failure to pay royalties.

“It’s a question of basic fairness,” Mr. Close said recently in an interview. When purchasers are getting extraordinary returns on their investment, he said, a royalty resale law allows the artist to share, at least in a small way, in the increase in value. (Under the California law, no payment is due if the price drops.)

[...] John Henry Merryman, a law professor at Stanford University and an expert on art and cultural-property law, said that advocates of the droit de suite ignore how the art market operates. The increased price for Rauschenberg’s “Thaw” at the Scull auction was due not only to the artist’s continuing creative efforts, he said, but also to the dealers, collectors, auction houses and critics who took a risk in supporting and buying Rauschenberg’s work before he was famous. He noted that the increased price for a single painting simultaneously raises the value of all the artist’s work.

Mr. Merryman dismissed the argument that the droit de suite was analogous to music or literary royalties. “The idea that somehow artists are hurt because they don’t have copyright is nonsense,” he said. Artists retain copyright and must be compensated if their work is reproduced. The difference, he explained, is that “the realization of a work of art is in exhibition, not in duplication.”

The Whitney Museum of American Art at one time compensated artists for exhibiting their work. The idea never caught on, but it makes more sense, Mr. Merryman said.

I look forward to an explanation of exactly how this constitutes “fairness” in this context. Absent a finding that US copyright law is going to move toward a wider application of European droit d’auteur (and, as the article states, droit de suite), I cannot imagine this is going to go very far — but never say never…..

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October 10, 2011

Hope Springs Eternal [4:27 pm]

I still don’t believe in psycho-history — but I do believe in the infinite attractiveness of the surveillance state: U.S. Intelligence Unit Aims to Build a ‘Data Eye in the Sky’ [pdf]

It is intended to be an entirely automated system, a “data eye in the sky” without human intervention, according to the program proposal. The research would not be limited to political and economic events, but would also explore the ability to predict pandemics and other types of widespread contagion, something that has been pursued independently by civilian researchers and by companies like Google.

Some social scientists and advocates of privacy rights are deeply skeptical of the project, saying it evokes queasy memories of Total Information Awareness, a post-9/11 Pentagon program that proposed hunting for potential attackers by identifying patterns in vast collections of public and private data: telephone calling records, e-mail, travel data, visa and passport information, and credit card transactions.

“I have Total Information Awareness flashbacks when things like this happen,” said David Price, an anthropologist at St. Martin’s University in Lacey, Wash., who has written about cooperation between social scientists and intelligence agencies. “On the one hand it’s understandable for a nation-state to want to track things like the outbreak of a pandemic, but I have to wonder about the total automation of this and what productive will come of it.”

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September 28, 2011

Democratization of the Surveillance State [3:48 pm]

Help Wanted - Busybodies with Cameras [pdf]

Known here sarcastically as paparazzi, people like Mr. Im stalk their prey and capture them on film. But it is not celebrities, politicians or even hardened criminals they pursue. Rather, they roam cities secretly videotaping fellow citizens breaking the law, deliver the evidence to government officials and collect the rewards.

“Some people hate us,” said Mr. Im. “But we’re only doing what the law encourages.”

[...] “I’m making three times what I made as an English tutor,” said Mr. Im, 39, who began his new line of work around seven years ago and says he makes about $85,000 a year.

Bounties have a history in South Korea; for decades, the government has offered generous rewards to people who turned in North Korean spies. But in recent years, various government agencies have set up similar programs for anyone reporting mainly petty crimes, some as minor as a motorist tossing a cigarette butt out the window.

Snitching for pay has become especially popular since the world’s economic troubles slowed South Korea’s powerful economy. Paparazzi say most of their ranks are people who have lost their jobs in the downturn and are drawn by media reports of fellow Koreans making tens of thousands of dollars a year reporting crimes.

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September 26, 2011

Another OnStar Challenger [8:34 am]

It looks like typical Senatorial grand-standing, until you get to the last paragraph of the quote below: NY Sen. Schumer accuses OnStar of invading privacy [pdf]

The OnStar automobile communication service used by 6 million Americans maintains its two-way connection with a customer even after the service is discontinued, while reserving the right to sell data from that connection.

U.S. Sen. Charles Schumer of New York says thats a blatant invasion of privacy and is calling on the Federal Trade Commission to investigate. But OnStar says former customers can stop the two-way transmission, and no driving data of customers has been shared or sold.

“OnStar is attempting one of the most brazen invasions of privacy in recent memory,” said Schumer, a Democrat. “I urge OnStar to abandon this policy.”

But the General Motors Corp. OnStar service says customers are thoroughly informed of the new practice. If a customer says he or she doesn’t want to have data collected after service is ended, OnStar disconnects the tracking.

And although OnStar reserves the right to share or sell data on customers’ speed, location, use of seat belts and other practices, a spokesman says it hasn’t done so and doesn’t plan to.

… until OnStar gets a subpoena or a National Security letter, for example.

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September 25, 2011

Ya Think?! [2:19 pm]

Well, they’re still probably ahead of the music industry — Movie studios give up the DVD ghost, look to the Internet [pdf]

After desperate attempts to prop up the industrys once-thriving DVD business, studio executives now believe the only hope of turning around a 40% decline in home entertainment revenue lies in rapidly accelerating the delivery of movies over the Internet.

[...] “The days of baby steps on the Internet are over,” said David Bishop, president of Sony Pictures’ home entertainment unit. “It’s now critical that we experiment as much as possible and determine how to build a vibrant market for collecting digital movies.”

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September 11, 2011

New Advances in “Works for Hire” [2:37 pm]

Computer-Generated Articles Are Gaining Traction [pdf]

The company’s software takes data, like that from sports statistics, company financial reports and housing starts and sales, and turns it into articles. For years, programmers have experimented with software that wrote such articles, typically for sports events, but these efforts had a formulaic, fill-in-the-blank style. They read as if a machine wrote them.

But Narrative Science is based on more than a decade of research, led by two of the company’s founders, Kris Hammond and Larry Birnbaum, co-directors of the Intelligent Information Laboratory at Northwestern University, which holds a stake in the company. And the articles produced by Narrative Science are different.

“I thought it was magic,” says Roger Lee, a general partner of Battery Ventures, which led a $6 million investment in the company earlier this year. “It’s as if a human wrote it.”

Experts in artificial intelligence and language are also impressed, if less enthralled. Oren Etzioni, a computer scientist at the University of Washington, says, “The quality of the narrative produced was quite good,” as if written by a human, if not an accomplished wordsmith. Narrative Science, Mr. Etzioni says, points to a larger trend in computing of “the increasing sophistication in automatic language understanding and, now, language generation.”

As usual, the reason it’s impressive is that it works at all, not that it’s producing deathless prose. But, it seems like it would be a great tool for first pass writing, with a human cleaning it up afterward. Of course, at that point, the question of whose writing it is also starts to get very murky….

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