Lessig and Zittrain – Pornography and Jurisdiction

(entry last updated: 2003-06-30 19:09:54)

Starting with a Zittrain-Lessig dialog. (Donna’s notes)

We posit a policy problem: how to solve the pornography problem? – step one, state the problem. Is it existence? No. It’s the accessibility of pornography that children can see. One solution might be to ban porn. [assume we know pornography when we see it]

Isn’t there a Constitutional argument? Doesn’t banning go to far – Michigan v. Butler. – so cannot get rid of all porn for all people, because some people can have access to porn

So, let’s just make sure that children cannot get porn – figure out how to card people in cyberspace – let’s employ identity. For example, says Z, let’s demand a credit card, which children won’t have

L: So I have to give my credit card to pornographers to get porn? I don’t want to give out my credit card – in fact, I don’t want to have any ID associated with my demand for porn.

Z: What about a digital ID? Something that associates some set of information with that ID, one piece of which is your age.

L: That seems to work. Should give me the anonymity the Constitution required. The CDA problem is avoided, I think. There’s still a burden of ID to access speech – doesn’t the First Amendment require that I have access to porn. After all, an average porn consumer is not carded, right? S/he looks old enough without a need for a card.

L: Given that there’s a compelling reason to avoid children getting porn, is this really the least egregious burden? After all, the pornographer also has the burden of ensuring a robust mechanism for checking these IDs. Isn’t there a solution that might avoid this burden? If so, then that’s the Constitutionally required approach.

L: How about requiring kids ID, rather than adult ID. How about a kid-enabled browser? Parents could set up children’s computers, so parents have the burden, instead of the porn consumer.

Z: So, we require the porn www site IDing itself, and the children’s browser will look for it and block it. For example, let’s look at the Content settings for the Internet Explorer – settings can be applied. OOPS – CNN.COM is blocked by a level 4 setting in violence. Looks like trouble.

L: So, sites will have to do their labeling – let’s pass a law. Wait – labeling is only required under the law for pornography – so detailed labeling is not necessary. Just a Porn Flag – or, as the goal posts move, "harmful to minors"

So we get a new burden – what does harmful to minors mean? Let’s skip this altogether and let the free market generate ratings by third parties. Once these ratings appear, browsers will arise that recognize the ratings. For example, the ADL Hate Filter; or Net Nanny. Filters – RSACI, which is now owned by the same site that does filtering for the ADL

Looks like the use of <meta …> tsg. Larry points out that labeling can characterize well beyond the porn/no porn axis. Is it possible that this is more burdensome?

Z: Why isn’t filtration along multiple axes not better, because parents can police more speech – it may be less free speech, but kids are protected. It’s digital babysitting.

L: What if you criticize NetNanny? Mightn’t they block you because of that? Say PeaceFire, which tells you how to evade filtering software?

Z: Zounds! Better block that site; it’s depriving parents of the right to manage their children’s online activity.

Is Cyberspace Burning? – the ACLU explanation that filters are going to eliminate free speech on the internet.

(Note: this is NOT an easy session to summarize – I’m looking forward to seeing how Donna does this!)

"Harmful to minors" – versus pornography. Larry raises the question, beyond the constitutional issues, of effectiveness – will this really work?

Terry tells us that Posner upholds the AIMSter block

Copyright law

and the principles of equitable relief are quite complicated

enough without the superimposition of First

Amendment case law on them; and we have been told

recently by the Supreme Court not only that “copyright

law contains built-in First Amendment accommodations”

but also that, in any event, the First Amendment “bears

less heavily when speakers assert the right to make

other people’s speeches.” Eldred v. Ashcroft, 123 S. Ct. 769, 788-89 (2003). Or, we add, to copy, or enable the copying of, other people’s music.

OK – can I get back on track – I doubt it, but let’s see …

We’re now on the subject of eBay and Nazi memorabilia; in France, nazi memorabilia is “pornography” as we have defined it – plus the law is written such that there is the opportunity for private action. Yahoo! France faced this, and went to the US courts asking to defend them against orders from French courts because this restriction on speech would be a violation of the US constitution.

Here we are, therefore, into jurisdiction – now we’re on iCrave TV – rebroadcasting of TV on the internet being legal in Canada, but illegal in the US. What happened in this case was that US courts said that iCrave was doing illegal activity, and they shutdown, even though they were in Canada (well, a small bit in Pittsburgh).

Bringing us to Sealand. And IP mapping (Quova) – as it turns out, Quova can be used to get 80% effectiveness to filter out the French from seeing nazi memorabilia. iCrave promised they would get 99% accuracy, but not acceptable to the US court (copyright v. other restrictions).

An example from Google, where a search on stormfront yields two different results depending on your location – in Germany, the white supremacist group doesn’t appear – no formal declarations of these filters exist at Google, so we find that the technical world is zoning the internet, because the suppliers of content are being asked to filter.

China is another example, except that the ISP, essentially, is blocking sites.

Leading to an internet that is locally defined by the local jurisdiction – "national soverignity is paramount" – Treaty of Westphalia. A technologically implemented mechanism to sustain local jurisdictions.


  1. Comment: what sort of strategies can be used to deal with the tradeoff between the kind of issue advocacy that looks like pornography to filters and truly harmful content. A terribly messy problem.

  2. How does Jonathan get his research results? The trick is dialup into AT&T Beijing and then try to access sites – expensive phone connections, but informative – although it’s truly 20 questions. Eventually, the dialup strategy didn’t work, so other tricks were used.

  3. A question of power emerges from this discussion: is it really bad that states don’t get to exercise their power? Larry argues that doing this co-opts the opportunity to carry out the debate about the values underlying these choices.

  4. A reiteration of the need for sovereignity of states. Jonathan argues that the thing he’s most worried about is the internet issues. Larry picks up on something Jonathan says, by saying that the effectiveness of the filtering/zoning combination allows lawyers to get out of the complications of jurisdictions. This easy out means that we won’t address the hard doctrinal questions that really need to be addressed.

  5. Why is child porn such a big deal? Compared with bomb making instructions, etc? Lots of dodging, ducking and weaving.

I think I made a mess of this. No wonder not many people do this…..

Postscript: I confirmed with Jonathan what I thought was going on at the end: there’s at least an open question in some minds here (and Jonathan in particular) on the subject of whether sovereignty on the internet is a bad thing or a good thing – i.e. should cyberspace mirror realspace in these sorts of questions. While on one hand, we tend to think that free speech is generally a good thing, we also have examples that show that it can be terribly harmful (threats, hate speech on up though a host of consequences of the conversion of speech into various forms of commerce).

ILaw – 2003 June 20 – Larry on code – updated as it goes along

(entry last updated: 2003-06-30 15:34:20)

A walk with Larry through the key concepts of Code and Other Laws of Cyberspace (warning, I’m new to trying this, and I’m unable to avoid injecting myself into this, so don’t expect a transcript.) (Donna’s notes)

A start on the Viadhynathan discussions of the ideology of anarchy, governed by the mind, embracing freedom – the internet as “unregulable”

A dichotomy – if, in fact, the internet is unregulable, why do we need an EFF, anyway? Because, in fact, the internet can be regulated, but you need to look at a new mechanism of control – Larry points to the list from Code; law, markets, norms (society), and architecture. Or, more specifically, implementation of technologies – the motives that underlie how we choose to deploy ways of doing things.

Smoking as a demonstration of the ways that governments employ mixed modes of control to change behavior – taxes, advertising to change mores, regulate packaging, etc.

To demonstrate that architecture is not uncommon, Larry goes into architecture as a regulator chosen by governments or their actors (my architecture lecture – 4 MB pdf). Baron Haussmann, Robert Moses (pictures in my slides), Americans with Disabilities Act

(Side note: Jonathan is "Z", at least when Larry’s picking on him)

Subtleties – the modalities may reinforce or conflict, but governments (and others) will employ these modalities to achieve their policy goals.

A questioner goes after Larry’s claim that “God” is the enforcer of architecture – no policeman is needed to maintain the modality of control that architecture represents. Granted, it can be challenged, and eventually changed, but it does make it hard to discuss, particularly if it’s subtle.

A questioner asks why the law seems to have primacy in Larry’s talk. Larry answers that discussion of modalities of control is somehow more natural in the legal domain, provided within a legitimated framework – e.g., democracy. It is, thus, more legitimated.

(Forgot to mention, Derek came up for at least the day)

Larry on libertarians – in the end, I think it reduces to unwillingness to see

So, getting back to regulability, the internet is, of course, regulable, because it can be (and in fact has been) architected. The first point – architecture has consequences. For example, on the internet, TCP/IP doesn’t let you know who sent a message – there is no identity to IP addresses. You can’t know what’s in a packed (well, you couldn’t originally). You can’t know the location of either the source or the recipient.

This arthitecture of anonymity led to the libertarian argument that the internet is not regulable, etc. Life pre-cookies, in other words. (Wow – Larry stuck his neck out and called http stateless.)

But, the conflict between what business wants to use the net for, what government wants to use the net for and what the designers put into the internet, leads to a tension that (unsurprisingly) motivates engineers to start acting to modify the architecture.

Larry’s point 1: the error of the libertarism argument is “is-sim” – the internet won’t change – and, as we’ve seen, architecture can be changed, because implementation of technology is mutable – that’s what engineers do. Government and commerce have reasons to motivate change – e.g., cookies (to get around the statelessness of http – Netscape to ease the life of commerce servers), packets sniffers (to see the content of traffic – Larry’s Morpheus server story), and IP mapping (Jonathan’s research into blocking).

(Hypothesis: Larry throws Jonathan’s name into the lectures as often as possible, because he’s used to Jonathan tuning out and he wants to make him jump – a classic lecturer’s trick. Empirical evidence shows, so far anyway, that it still works on Jonathan, too!)

These three changes, among many, many more, take away more and more of the anonymity of the internet – and the consequences of the architecture have now changed the internet into a more regulable space – so much for “is-ism.” And, therefore, we better start paying much more attention to the implications of changes in the architecture.

A question on cookies and the Hamadi case: rephrased as “is the cookie a violation of rules or laws?” And the answer is, generally, no. But, the unintended consequences of these changes may be unattractive (note to self – this is a key set of ideas around the ESD notions of engineering systems, something that I need to expand upon). DoubleClick has learned from the questions that their use of cookies raised, and the FTC & norms/reputation (as elements of other modalities of control) have influenced these changes.

Larry’s point 2: the modalities of control interact. With e-mail spam as an example – libertarians believe in free speech, so keep the law out of email. In the early days of the internet, the small homogeneous internet community flamed the first advertising e-mails. But, with the influx of the hoi-polloi into the internet, the norm against e-mail ads vanishes and spam emerges. Responses include white hat vigilantes (real-time black hole lists, other tech fixes) but all their actions really do is make things worse. And, it looks like censorship, an ideological violation – and it works to get you off (John Gilmore story – sp?)

What if a law could reduce the market value of spam? Wouldn’t that allow us to avoid using the arhitecture? Say, Larry’s spam labeling act? Although we aren’t going to talk about that for a while, it appears.

Larry’s summation:

  1. Code is law

  2. Code is plastic

  3. No law can beget bad code

  4. Good law can avoid bad code (maybe)


  1. The US is moving away from respect for public law, so why is the primacy of law asserted? Larry: I am a pessimist; you are right, the law is losing out and perverting many important and fundamental values. (Unspoken: the law is undermining itself because of this failure to reconcile what law does and what consequences emerge)

  2. An ex-network admin from a university describes caving in to Orbs, whose egos got away from the notions of cooperation – the damage of the vigilante groups. Spews (sp?) vs. Paul Vixie’s group are contrasted – leading to a notion that at least governments have to justify what they do, while vigilantes don’t have to.

  3. Another example of (il)legitimacy – the influence of US politics upon the global internet is discussed. Larry points out that the internet is the most efficient mechanism to export the US vision of free speech. Should we homogenize the network protocols, or should we allow jurisdictions to dictate the architecture? An open question.

  4. The expansion of the vigilantiism to the level of international jurisdiction issues. This leads us into a further discussion of jurisdiction – why isn’t it just like the Atlantic ocean (doesn’t the US Law of the Sea still obtain?) Larry points out that location is tied to many of the notions of jurisdiction, and thus many of the natural analogies don’t work when you consider the internet, because the metaphors of location don’t really work seamlessly with these problems.

2003 June 30 – ILaw

(entry last updated: 2003-06-30 13:10:57)

Woo-hoo! Wireless access working! But it seems like there are lots of people anxiously awaiting updating of the DHCP server – Donna, for example, who’s going to be real-time blogging again, but can’t get in yet.

ILaw starting (9:00 PT with Larry hosting).

  • Cory Doctorow points to an interesting LATimes editorial: Labels May Face Risk in Piracy Suits [pdf]

    Labels and artists are widely viewed on Capitol Hill as victims of rampant piracy by millions of users of file-sharing networks. And anonymous file sharers are easy to demonize.

    But the real people sued this fall by the Recording Industry Assn. of America may have sympathetic stories to tell. That could turn sentiment on Capitol Hill at a time when some lawmakers are eager to narrow the reach of copyright law and expand consumer rights.

  • Yikes! Check out this idea from Boinb-Boing: Japanese mags take on “digital shoplifters” – essentially people are using their cellphone cameras to take pictures of something they see in a magazine, rather than buying it – and the Japanese a cracking down – Japan’s ‘digital shoplifting’ plague – "Together with Japan’s phone companies, they are issuing stern posters which warn shoppers to be careful of their ‘magazine manners’."

  • I see that Ed already made the point I was raising about the endless spy v. spy game the RIAA is playing – based on this Washington Post article: Piracy Dragnet

  • Things that new technologies give: Coming Soon: A Horror Show for TV Ads [pdf]

    Yet the world of TV advertising is about to become a lot more scientific. On June 2, personal-video-recorder outfit TiVo (TIVO ) unveiled an analytical tool that can tell advertisers, agencies, and networks not only how many people tune in for a show but whether they’re watching the ads. Unlike a Nielsen rating, which relies on surveys filled out by viewers, TiVo’s system tracks what a viewer records and tunes into, even when the channel is changed — although, thankfully, it still doesn’t know if you head for the kitchen for something to eat.

  • Salon has a very funny opinion piece today: Why the U.S. must invade Canada — now

    It didn’t support the war, it’s soft on pot and gays, its economy is rolling and U.S. troops are bored. Anyway, reasons to invade countries are no longer needed!

  • Salon has an interview with John Cougar Mellancamp on the state of music: Ain’t that America?

    So I go in there and they ask me a few questions about the record. Then all of a sudden the guy says to me, “You wrote a song that took some potshots at the president.” I said, “Whoa, motherfucker! I didn’t take any potshots at anybody, that’s not my style. I’m not yelling from the back of the crowd or giving somebody the finger. That’s not what I do.” I said, “Listen, I wrote a song and got the lyrics out of any newspaper in the country.” He said, “Well, you saw what happened to the Dixie Chicks.” I said, “Listen, people have died in World War I, World War II, the Korean War, Vietnam and a bunch of little wars in between so that people will have the freedom to speak out, and then the administration gets on the news and says there’s a price for freedom. Yeah, and these dead guys have already paid for it. For people to drive by those women’s houses [the Dixie Chicks] and call them on the phone and threaten them is criminal. What the Dixie Chicks did was legal.”

  • KaZaA 2.5 Released, with incentives for sharing licensed content: Sharman Networks Launches Kazaa V2.5

  • Somehow, I wouldn’t be crowing about getting the BSA’s support, but then again, I’m not as clueless as the RIAA tries to be: IT Industry Execs Support RIAA Efforts To Protect Music On-Line

  • Although it’s not grounds to ignore the EU “right of reply” rules, a small reprieve for bloggers is described in this Wired News article: Bloggers Gain Libel Protectio (Speaking of which, I heard Declan on NPR’s ON the Media yesterday on this subject.)

  • Declan’s arguing that Microsoft is abandoning their laissez-faire attitude in private in order to expand their hegemony to set-top boxes: Microsoft’s new push in Washington

  • Looks like the EU is at least pausing their headlong rush to emulate US software patenting: Software patent vote delayed

  • Via Slashdot: a federal circuit court of appeals decision has apparently upsheld a shrinkwrap EULA the prohibited reverse engineering!

    A U.S. Supreme Court decision could call into question a common practice among software companies: studying competitors’ products to improve their own offerings.

    The legality of this practice, called reverse engineering, is in question after a lower court found that a software company had violated a shrink-wrapped license contract when it reverse-engineered a competitor’s piece of software.

    Last week, the Supreme Court decided not to hear the accused software company’s appeal.

    The opinion from the DC court: Bowers v. Baystate – TechLawJournal on the denial of cert.

2003 June 30

(entry last updated: 2003-06-30 02:08:42)

Cheating on time, I guess, since it’s still yesterday here in California…

  • The NYTimes discusses the conflicts around "trusted computing:" A Safer System for Home PC’s Feels Like Jail to Some Critics [pdf]

    The most interesting suggestion of this article is that Apple may be electing to use its choice to echew DRM hardware (in favor of software) may end up being used as a competitive threat to the Wintel platform – a very clever move, if true, since I know that I will definitely vote with my wallet on this issue.

    But by entwining PC software and data in an impenetrable layer of encryption, critics argue, the companies may be destroying the very openness that has been at the heart of computing in the three decades since the PC was introduced. There are simpler, less intrusive ways to prevent illicit file swapping over the Internet, they say, than girding software in so much armor that new types of programs from upstart companies may have trouble working with it.

    […] “Microsoft’s use of the term `trusted computing’ is a great piece of doublespeak,” said Dan Sokol, a computer engineer based in San Jose, Calif., who was one of the original members of the Homebrew Computing Club, the pioneering PC group. “What they’re really saying is, `We don’t trust you, the user of this computer.’ ”

    […] How consumers will react to the new technology is a thorny question for PC makers because the new industry design stands in striking contrast to the approach being taken by Apple Computer.

    Apple has developed the popular iTunes digital music store relying exclusively on software to restrict the sharing of digital songs over the Internet.

    […] Apple only has a tiny share of the personal computer market. But it continues to tweak the industry leaders with its innovations; last week, Apple’s chief executive, Steven P. Jobs, demonstrated a feature of the company’s newest version of its OS X operating system called FileVault, designed to protect a user’s documents without the need for modifying computer hardware.

    Mr. Jobs argued that elaborate hardware-software schemes like the one being pursued by the Trusted Computing Group will not achieve their purpose.

    Even the Darknet paper is cited.

  • Patents in the news: Protecting Ideas in the Insurance Business [pdf]

    In 1998, after hearing a legal challenge to a patent for a way of pooling mutual fund assets, the United States Court of Appeals for the Federal Circuit ruled that methods of doing business could be patented. Since that ruling, known as the State Street Bank decision, applications for business-method patents have begun transforming the way products are created and marketed.

2003 June 29

(entry last updated: 2003-06-29 23:10:40)

Drove down to Monterey today to take in the Monterey Bay Aquarium – a fabulous place. I’d post a picture or two, but I cannot get my Mac to grab the 80mm CD that my Mavica uses, even though the Apple site says that the drive accepts standard geometry (i.e., round) 80mm and 120mm CDs. There must be a trick, but I’ve gone just about as far as I dare pushing the thing into the drive. *Sigh* – I think I really got some good pictures of the jellyfish exhibit, too.

  • Karen pointed me toward this Mike Lukovich cartoon (from the June 27 Atlanta Constitution) that was in todays’s NYTimes Week in Review. Sort of an accompaniment to this report on the RIAA lawsuit push: Making Pirates Walk the Plank [pdf]

  • Harry Crushes the Hulk [pdf] (Slashdot discussion: Harry Potter and the Entertainment Industry)

    Here’s what’s wrong with kids in the digital age. They live in front of their TV and PC screens. They steal music online. Their attention span is zilch. They multitask on everything and concentrate on nothing except video games. They will buy any trashy product that the media goliaths can sell them, then drop it as soon as the next big hype comes along.

    That’s merely the short list of hard-wired assumptions that were short-circuited by last weekend’s publication of “Harry Potter and the Order of the Phoenix.”

    […] The question is: How do all those lovely entertainment-seeking kids weaned on “Harry Potter” grow up to become thieves? Surely, they know that stealing copyrighted songs and movies is akin to shoplifting sweaters at the Gap. There is no single explanation, of course, and there is no acceptable rationalization that can excuse theft. But it’s no secret that music piracy spread as CD prices rose and teenagers were enraged to pay roughly the same price as a “Harry” hardcover for a dozen or so tracks of which 10 might be filler.

    […] This is a lesson that seems to be lost on a cynical entertainment industry that places Pavlovian marketing above creativity, on the assumption that young consumers don’t know the difference. Many of them do know the difference. There is a lot for grownups to learn — and those in Hollywood most of all — by reading the books, not merely the grosses, spawned by Harry Potter.

  • I wonder if writing this piece was a term of employment for this CNN (a division of TimeWarner-AOL) intern: Why I’ve stopped sharing music. After all, this is EXACTLY the response that the RIAA is hoping to get for their lawsuit orgy. On the other hand, there is this closing statement:

    Still, when I hear a timeless Beatles classic on the radio and then go home to look for it on Pressplay or ITunes and it isn’t there, I tend to longingly eye the Kazaa icon that still sits on my desktop, beckoning me to return to piracy.

    Only fear and Dan Peng’s ordeal keep me in line.

    In the face of demand and with the incentives of fear, how long before a formalized, yet random and cryptographically protected, IP spoofing mechanism (or some other anonymizing trick) becomes a part of KaZaA or one of the open source projects?

  • Derek jumps back into the copyright/property fray with a comment that heads into the uses of technological alienation and the dichotomy between the intangibles of expression and the reality of products. While it may be that Derek is being facetious with this paragraph:

    What about my property? You may own the music, but I own the CD. Do you get to tell me how to use my property in my own home? If you made the music, does that also mean you own my CD player?

    But he’s exactly framing the issue that DRM raises – is it really the case that, just because the expression is supplied in a digital form, the copyright owner is now allowed to assert control over my property/technology by limiting what it is otherwise able to do?

    DRM plus DMCA equals a lock on my machine, and is certainly novel, if not unprecedented. For example, I could buy a 33 rpm record and play it at 45 if I wanted to – I could play it backwards to hear "Paul is dead." I could buy a piece of sheet music and elect to ignore the tempo/key/arrangement. I can buy the latest Harry Potter and flip to the end to find out who dies (or even just pick up the book and browse to learn that). But I already can’t skip the FBI warning at the outset of "my" DVD, nor can I hope to be able (legally) to shift that movie to the next digital video medium when DVDs are obsolete.

    The threat of digital copying is being used to allow publishers claim greater control over reified creative expressions, and the question Derek raises is right on – why should be throw out other elements of our legal (and moral) frameworks in favor of the dictates of copyright (a purely legislated right, I might add)? It’s the development of a workable balance, rather than the philosophical absolutes brought out at each discussion, that’s needed.

  • Thomas Friedman ties together a couple of important concepts about the Internet and the US in Is Google God? [pdf]

    In other words, once Wi-Fi is in place, with one little Internet connection I can download anything from anywhere and I can spread anything from anywhere. That is good news for both scientists and terrorists, pro-Americans and anti-Americans.

    And that brings me to the point of this column: While we may be emotionally distancing ourselves from the world, the world is getting more integrated. That means that what people think of us, as Americans, will matter more, not less. Because people outside America will be able to build alliances more efficiently in the world we are entering and they will be able to reach out and touch us — whether with computer viruses or anthrax recipes downloaded from the Internet — more than ever.

    The Slashdot discussion, Does Google = God?, goes after the technical nonsense in the piece, but there are a few comments that did get what Friedman is really worried about – not to mention at least one good science fiction reference: No, But Google IS Multivac…. (The Last Question, one of the referenced Multivac stories, is a great read (alternative link to text.)

2003 June 28

(entry last updated: 2003-06-28 21:57:33)

Made it to Palo Alto for ILaw next week (though it took me far too long to get my rental car – strike Budget from the list – and finding the Hotel California was harder for me than I expected – too long since I’ve been to Stanford) Saw Jonathan on the plane; he clearly had better traveling arrangements and was long gone <G>

  • Slashdot documents the hazards of changing media formats in midstream: EMI and Sony Lose Lawsuit Over Crippled Music Disks. The suit in question was in Brazil, and a comment suggests there has been a similar outcome for a recent French suit.

  • Matt discusses the analog hole in books (among many other things), exposed by the scanning and posting of the latest Harry Potter in MS Reader format.

    Is this really the analogue of the "analog hole?" I would argue that this is merely a demonstration that the value of e-books (and the rights to make and distribute them) is possibly overvalued. Just as I have been arguing that a key to the music copying problem is the fact that the industry has failed to deliver something distinguishable from a ripped MP3, this action may merely demonstrate that eBooks don’t deliver anything more than an electronic Xerox. And, since there are some things (like read aloud, indexing, searches, etc.) that could be distinguishable, this suggests that the digitizing of content has to deliver more value than just what comes with a repackaging – and DRM is not a value add!

  • Slashdot picks up a significantly more interesting Harry Potter issue: Harry Potter and the International Order of Copyright: Should Tanya Grotter and the Magic Double Bass be banned? Slashdot: Tanya Grotter and the Magic Double Bass

    You might think it a good thing that Rowling can stop the Potter cloning industry, whether it is in Brighton, Bangalore, or Bratislava. Who wants to see Harry turned into a hairy troll or forced to gallivant with foreign literary figures? But on closer examination the argument for letting Potter crush his international competition is quite weak.

    The case for preventing literal copying—in which a foreign publisher simply reprints a work without permission—is strong. But Potter follow-ons are different from the American Dickens piracy of the 19th century and DVD piracy of today. Literal copies are what come out when you use a photocopier. Potter’s takeoffs are different: They either borrow characters and put them in a new, foreign context (Potter in Calcutta) or just use the themes and ideas of Potter (as in Tanya Grotter’s case) as inspiration for a different kind of story. They aren’t a direct replacement for a Potter book, the way a literal copy is, but rather a supplement or an adaptation.

    […] Potter’s publishers, in defense of strong global copyright, would say that works like Tanya Grotter are theft, and such theft destroys the incentive to write in the first place. But the incentives argument is surprisingly unpersuasive in the international setting. To say Rowling will stop writing for fear of international parody is a difficult case to make. Only the most famous and lucrative works are parodied overseas. If an international adaptation is a sign you’ve made it rich, how can it be a serious financial deterrent for new writers?

    The truer complaint is that Potter’s overseas competitors may mean slightly less profit for Rowling and her publishers.

    A great article making an important point.

  • Cory Doctorow points out a couple of interesting things:

  • Nice analogy from The Register on the pending RIAA lawsuit threats (as well as the implicit DRM threat lying at its core): The RIAA Plays Whack-a-Mole. Its aptness will depend, of course, upon the next cycle in P2P, which clearly is going to get into encryption and anonomyzing strategies to work around the traffic analysis – after all, you didn’t want to waste those excess CPU cycles on SETI or cancer research, did you?

    Note that the community of file sharers aren’t waiting around: StreamCast vows peer-to-peer protest

  • Sounds like Larry had a good day in DC – it’ll be interesting to see if he retains his Cassandra posture this week.

2003 June 27

(entry last updated: 2003-06-27 08:59:45)

Last day here before heading to California for ILaw!

  • A nice writeup of the leaking of The Hulk online over at the Globe and Mail: Hollywood wants pirates’ gold [pdf]

  • Siva Viadhynathan speaks on P2P power and the clash of ideologies in the networked worldover at OpenDemocracy.net. His article, the first in a series, elaborates a deeper construction of the issues in the music sharing conflict: The new information ecosystem: cultures of anarchy and closure

    But the future of entertainment is only a small part of the story. In many areas of communication, social relations, cultural regulation, and political activity, peer-to-peer models of communication have grown in influence and altered the terms of exchange.

    This is the story of clashing ideologies: information anarchy and information oligarchy. They feed off of each other dialectically. Oligarchy justifies itself through “moral panics” over the potential effects of anarchy. And anarchy justifies itself by reacting to the trends toward oligarchy.

    The actors who are promoting information anarchy include libertarians, librarians, hackers, terrorists, religious zealots, and anti-globalisation activists. The actors who push information oligarchy include major transnational corporations, the World Trade Organisation, and the governments of the United States of America and the Peoples’ Republic of China.

    Rapidly, these ideologies are remaking our information ecosystem. And those of us uncomfortable with either vision, and who value what we might call “information justice”, increasingly find fault and frustration with the ways our media, cultural, information and political systems are changing.

    […] Where there is no rich, healthy public sphere we should support anarchistic communicative techniques. Where there is a rich, healthy public sphere, we must take an honest, unromantic account of the costs of such anarchy. And through public spheres we should correct for the excesses of communicative anarchy.

    Still, we must recognise that poor, sickly, fragile public spheres are more common than rich, healthy public spheres. And the battles at play over privacy, security, surveillance, censorship and intellectual property in the United States right now will determine whether we will count the world’s oldest democracy as sickly or healthy.

    Anarchy is radical democracy. But it is not the best form of democracy. But as a set of tools, anarchy can be an essential antidote to tyranny.

  • Who’s ready for a breath-holding contest: New RIAA Chief Should Name Digital Advisors, Says CEO Of Leading File Sharing Company. Benny Evangelista’s article, RIAA to sue individual file sharers:

    Recording industry gets personal with online music fight, raises the next tactic:

    “Don’t listen to their music. Don’t buy it, don’t share it, don’t talk about it,” read one message.

    “The record companies have made billions off the consumers,” read another post. “They have overcharged us for years. Why not boycott all new music and watch their attitude change?”

    Which reminds me – where’s my check?

  • The Java/.NET fight is starting to look like history repeated: Court curbs Microsoft Java distribution; Slashdot’s discussion is Appeals Court Sides With Microsoft On Java; The Register says Judges deny Sun’s must-carry Java bid; The New York Times’ article Microsoft Can Leave Java Out of Windows, Court Rules [pdf]; text of the ruling from FindLaw

  • Charlie Cooper joins those who as "What if SCO is right?" Surprisingly, Cooper puts together an uncharacteristically poor discussion, putting himself in the category of those who fail (elect?) to recognize that this is still a lawsuit between SCO and IBM, not Open Source. And the glee with which he chooses to portray Torvalds as some sort of a spoiled arrogant nerd makes me wonder more about Mr. Cooper than about this case. (Are we sure this isn’t a misattributed David Coursey column?)

2003 June 26

(entry last updated: 2003-06-26 21:04:07)

  • It’s not often that Slashdot beats me to Findlaw, but they did today. The Slashdot article Law Professor Examines SCO Case, discusses this Findlaw’s Writ piece: Penguin on Thin Ice?

    Why IBM Should Win in the Fight to Save Linux by Anupam Chander of UC Davis.

  • From the Eldred Act www site: text of the Public Domain Enhancement Act; press release on its introduction;

    Slashdot discussion: Public Domain Act Introduced Into Congress

    Donna’s got a comprehensive set of links on the submission.

  • This is going to get the MPAA and others in a snit: Pioneer adds TiVo to DVD recorders. Granted, not at a cheap prince, but still. Slashdot discussion: Pioneer To Release TiVo/DVD Burner Combo

  • Via BBSpot: The Missing Future

    But there’s one group we haven’t heard from yet: The small software developers. For 25 years, these people were the lifeblood of the personal computer revolution. Their old vision is still the sexiest: Build great, innovative software, sell it to the users at a reasonable price, make millions of dollars, benefit humanity, retire young. And if you mistreat your users, you’ll loose them, because you have a hundred competitors. The old Silicon Valley was built on this dream, and it worked for two decades.

    But this dream is nearly gone. It’s getting crushed between the awful power of Microsoft, and the onrushing juggernaut of open source. A 30-person company can’t compete with Microsoft. And a 30-person company will have a hard time competing with 300 open source contributors giving software away for free and making their living as in-house developers (though it can be done).

  • The Berkman Center’s collaboration with the Program for Security in International Society at the University of Cambridge is described in the NYTimes today: A World Map to Outwit Web Censors [pdf]

    Last month the researchers agreed to collaborate on “mapping” the Internet for such blockages, whether they are imposed by governments, Internet service providers, corporations or even public libraries. The project will involve the enlistment of thousands of volunteers around the world, organizers say.

    “The general idea is that when we talk about the World Wide Web, ‘world’ and ‘wide’ are no longer to be taken for granted,” said Jonathan Zittrain, a Harvard law professor and co-director of the Berkman Center. “Our worry is that barriers are coming up left and right, and they are more likely to come up if they can come up stealthily.”

    (Looking up Jonathan and Ben’s project, I see that the Berkman Center has a new WWW look.)

    Update: WIred profiles how the Chinese Work Around Net Blocking

  • Yesterday’s Wired News had a short blurb on this topic; today’s NYTimes takes it further: Netflix’s Patent May Reshape DVD-Rental Market [pdf]

    The patent gives Netflix intellectual property protection over the technology at the core of its business: the way that a customer sets up his or her rental list; and the way the company sends the DVD’s. The patent also grants the company exclusive control over many other small parts of the process of online DVD rental.

    The patent, which was filed in 2000, has 100 claims over all. The company has other applications pending with the United States Patent Office, including one on the intricately designed envelopes it uses to send the DVD’s.

    “On the surface, the patent looks quite sweeping and quite meaningful,” said Arvind Bhatia, an analyst for Southwest Securities, a Dallas-based financial services firm. Depending on whether the patent or its enforcement is challenged in court, Netflix could use it to try to stop its competitors from setting up online rental services. Or it could charge royalties to other companies that license the patent, giving Netflix a financial advantage.

  • Here’s the current NYTimes piece [pdf] on the RIAA lawsuit push – although it’s surprising to say so, Hiawatha Bray’s piece from the Globe (below) is better.

  • William Safire continues his campaign against media consilidation, detailing in today’s NYTimes column the action on the Hill to rollback the recent FCC ruling: Big Media’s Silence [pdf]

  • After yesterday’s RIAA announcement of heightened litigation, one might wonder where the Boston Globe’s sentiments lie, given these the stories appearing in today’s paper:

    CNet has a roundup on the RIAA initiative: Record labels, Hulk target pirates

    And Wired asks: Are You in RIAA’s Cross Hairs?

2003 June 25

(entry last updated: 2003-06-26 11:59:40)

  • Jenny Levine’s also got something on the markets for DVDs: DVD Numbers Exploding, Making Studios Lots of Money – Will They Be Smart Enough to Learn from This?

  • Hoo-hah! RIAA Threatens Orgy of Lawsuits

    A recording-industry trade group said on Wednesday it plans to sue hundreds of individuals who illegally distribute copyrighted songs over the Internet, expanding its anti-piracy fight into millions of homes.

    The Recording Industry Association of America said it hopes to curb illegal song downloading by tracking down the heaviest users of popular “peer to peer” services like Kazaa and suing them for thousands of dollars in damages.


    “The RIAA, in their infinite wisdom, has decided to not only alienate their own customers but attempt to drive them into bankruptcy through litigation. So therefore they probably won’t be able to afford to buy any music even if they want to,” said Grokster President Wayne Rosso, who added he does not support copyright infringement.

    The AP Tech Wire piece from Yahoo! is more thorough, making it clear that the plan is to kill the P2P networks by using the threat of a lawsuit to turn off all the “sources” in the network, thus starving the “sinks” – i.e., killing the cooperative elements of P2P. Slashdot channels a Washington Post article: RIAA To Sue Hundreds Of File Swappers

    (A minor point for english composition writers everywhere – while it is admittedly a quote, the opening sentence of Rosso’s quote demonstrates not only why splitting infinitive in parallel construction is painful, but also why every “not only” must be accompanied by a “but also.”)

    Late night update: News.com – Labels aim big guns at small file swappers; the RIAA newsletter – Recording Industry To Begin Collecting Evidence And Preparing Lawsuits Against File “Sharers” Who Illegally Offer Music Online (and I’m listening to a news piece on the subject on the local Fox affiliate’s late night news at this moment)

  • Donna points us to an article by Jonathan Zittrain in Legal Affairs: The Copyright Cage – wherein Jonathan tries to refute the perception that cyberlaw professionals, by definition, hate copyright – a fine writeup:

    Yes, I hate the effects of copyright on a digital revolution that heralds so much more than the banal ripping off of CD tracks. I hate that creativity is metered and parceled to its last ounce of profit. I hate that our technology is hobbled beyond its paper and other analog counterparts so that it permits us to view but not print, listen but not share, read once but not lend, consume but not create. But I can hate this situation without believing that the idea of copyright is fundamentally flawed. The framers’ vision of intellectual property (then known as “monopolies”) called for built-in limits to a creator’s exclusive rights. A copyright term, for example, would expire even if a work still held commercial value.

    […] It’s time for us to wise up and to redraw copyright’s boundaries so that the law and reasonable public expectations fall into better alignment with one another. To be sure, this may require more, rather than less, subtlety. We should treat protections for computer software in a different way than music, for example, and lengthy copyright terms should be available only to those who bother to check in with the Copyright Office every few years. But we do ourselves a disservice by fixating on current income structures and not thinking about future possibilities premised on amazing technological advances, especially when the rights at issue concern the flows of ideas, something fundamental to free societies.

    […] I pay my taxes. I have no idea how to calculate them, but I do what Turbotax tells me to. I’ll pay a copyright tax, too, and willingly support artists whose work I appreciate, because it’s the right thing to do and because it guarantees that more work will be made available to me. I’m not alone. So: Let’s imagine a world in which Teddy Ruxpin can say whatever he wants, where kids can play with computers that are not digitally locked down, where bars and restaurants can stop measuring their TVs and their parking lots, and where amateur webcasters can create thousands of radio stations featuring songs we like, perhaps ones that sound familiar but that have new elements to them. We’ll still buy concert tickets, books, and CDs and their digital descendants. They’ll be competing with a lot more, though-created for fun, even if it happens to turn a profit.

  • The Times Editorial today: Internet Filters and Free Speech

  • The Eldred Act is expected to be introduced today

  • Jenny Levine‘s got a thorough set of links in her round-ups of the recent Supreme Court CIPA ruling: (a) Round-up of Links About SCOTUS Decision to Censor Library Internet Access, (b) More on the Supreme Court Forcing Libraries to Censor and (c) Supreme Court Forces Libraries To Censor

  • A singularly un-screed-like editorial from Richard Stallman on the SCO/IBM fight: SCO smear campaign can’t defeat GNU community

    Another SCO tool of obfuscation is the term “intellectual property.” This fashionable but foolish term carries an evident bias: that the right way to treat works, ideas, and names is as a kind of property. Less evident is the harm it does by inciting simplistic thinking: it lumps together diverse laws–copyright law, patent law, trademark law and others–which really have little in common. This leads people to suppose those laws are one single issue, the “intellectual property issue,” and think about “it”–which means, to think at such a broad abstract level that the specific social issues raised by these various laws are not even visible. Any “opinion about intellectual property” is thus bound to be foolish. (See http://www.gnu.org/philosophy/words-to-avoid.html.)

    Slashdot discussion: RMS Cuts Through Some SCO FUD

  • For archival purposes, the Amish Tech Support weblog entry on Sen. Hatch’s website copyright infringement question: Orrin Hatch, software pirate?; 8:45 AM – Closing the hatch on Hatch

    Or, you could just get the t-shirt….

  • A little more on the NetFlix patent: Netflix Issued Patent On Subscription Rental Service, the NetFlix press release, which also includes a link to the patent: US#6,584,450

    Update: A Business2.0 article: How Netflix Is Fixing Hollywood

    Even later: Wired News asks the natural question that would have been in the Business 2.0 article had the writer known about recent events: Can Netflix Patent Stymie Rivals?

2003 June 24

(entry last updated: 2003-06-24 17:56:28)

Going to be brief today – just listings. Hope to be back into it tomorrow!