March 9, 2006

Hoo-Boy [8:41 pm]

No one can be in favor of child porn, but this seems a little extreme — depends on what sort of safeguards the court insisted on to ensure that the subscriber was the owner: US court OKs computer searches for child porn [pdf]

Police may search computer hard drives for child pornography if their owners subscribe to Web sites selling the images, a U.S. appeals court ruled on Thursday.

There is a “fair probability” customers of child pornography Web sites receive or download the illegal images, opening the door for police searches, according to the ruling by the U.S. 9th Circuit Court of Appeals.

The ruling affirmed a lower court’s decision supporting an affidavit by the Federal Bureau of Investigation for its probe of Lolitagurls.com Web site and subscriber Micah Gourde.

From Judge Kleinfield’s dissent:

The majority concludes that the affidavit made out probable cause by assuming that anyone who subscribes to an internet site with both legal and illegal material must collect illegal material from the site. This assumption stacks inference upon inference until the conclusion is too weak to support the invasion of privacy entailed by a search warrant. “[W]ith each succeeding inference, the last reached is less and less likely to be true.” The privacy of a person with a sexual perversion that might make him a danger to our children seems by itself an unlikely candidate for concern. But the overwhelming importance of the privacy of people’s computers makes it essential to assure that — even in this ugly corner of human perversion — probable cause seriously interpreted remain a prerequisite for search warrants.

From Judge Reinhardt’s dissent:

The majority improperly brushes aside the importance of the government’s ability to determine whether Gourde had downloaded or received illegal images. It argues that it did not need to prove that Gourde definitely downloaded or received illegal images in order to show that there was a “fair probability” that he possessed such images on his computer. Ante at 2373. That is certainly true — but it is not the issue in the present case. In concluding that the government’s ability to determine Gourde’s download history is immaterial to the probable cause analysis, the majority confuses two different types of information: evidence that the government could have obtained but that it did not possess at the time it applied for a warrant, and evidence that the government had in its possession at the time it applied for the warrant but did not utilize — evidence that would have answered the question whether there was probable cause. This case involves the latter type. Although the government certainly need not provide definitive proof that an individual downloaded or otherwise received illegal images on his computer to establish probable cause, when it has critical evidence in its possession but decides to avoid becoming aware of the content, it creates a “circumstance” which casts substantial doubt on the probability that the individual does in fact possess illegal images.

When this circumstance is properly weighed along with the others relied upon by the majority, it can no longer be said that the record before the magistrate judge showed a “fair probability” that Gourde downloaded or otherwise received illegal images. [...]

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Xeni on Digital Filters [3:06 pm]

Exporting Censorship

One of our most laudable national goals is the export of free speech and free information, yet American companies are selling censorship. While some advocates of technology rights have proposed consumer boycotts and Congressional action to pressure these firms into responsible conduct, a good first step would be adding filtering technologies to the United States Munitions List, an index of products for which exporters have to file papers with the State Department. While this won’t end such sales, it will bring them to light and give the public and lawmakers a better basis on which to consider stronger steps.

If American companies are already obligated to disclose the sale of bombs and guns to repressive regimes, why not censorware?

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Some Legislative Notes [11:12 am]

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China: Taming the Tiger? [9:27 am]

A counter perspective to the recent wave of arguments suggesting that China can control all: The Wild Web of China: Sex and Drugs, Not Reform

But while China’s huge Internet police force is busy deleting annoying phrases like “free speech” and “human rights” from online bulletin boards, specialists say that Wild West capitalism has moved from the real economy in China to the virtual one.

Indeed, the unchecked freedoms that exist on the Web, analysts say, are perhaps unwittingly ushering in an age of startling social change. The Web in China is a thriving marketplace for everyone, including scam artists, snake oil salesmen and hard-core criminals who are only too eager to turn consumers into victims.

Chinese entrepreneurs who started out brazenly selling downloadable pirated music and movies from online storefronts have extended their product lines — peddling drugs and sex, stolen cars, firearms and even organs for transplanting.

[...] How does all this get by the Internet patrols in a country where violators risk 3 to 10 years in prison, or in some cases even the death penalty? Analysts say that the growth in the Internet has simply created too many sites to patrol. In contrast, there are too few incentives to close down sites, particularly when government-owned Internet service providers, telecommunications companies and even state-run Web sites are making big profits from them.

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Bray on the UseNet and NZB [8:56 am]

Little-used corner of Net becomes piracy battlefield [pdf]

Until now, it’s been relatively difficult for ordinary Internet users to get at illegal Usenet files. They aren’t indexed by Google, and downloading them is often a slow, painstaking process.

The three companies being sued by the movie industry use a technology that goes a long way toward solving this problem. The sites don’t actually store illegal files. Instead, they offer indexes of the files based on NZB, a new search technology. NZB identifies and indexes millions of individual Usenet postings, sorting them into thousands of music and movie files. A visitor to one of the sites can type in the name of a movie and quickly get a list of the Usenet postings he must download. With software available at low cost over the Internet, a user can then connect to his Usenet account and easily download and reassemble the messages into a viewable movie.

[...] James Toledano, director of digital music at SafeNet Inc. in Morristown, N.J., said that Usenet trading of illegal files hasn’t become a a large-scale problem yet. ”It is pretty small, but it’s growing,” Toledano said. One reason is that NZB downloading isn’t free. The NZB search sites charge membership fees — Binnews.com charges $5.50 a month, for instance. By contrast, peer-to-peer systems are free.

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The French Fight Continues [8:50 am]

France Reconsiders Legal File-Sharing Bill [pdf]

Culture Minister Renaud Donnedieu de Vabres re-introduced the so-called “global license” after a drawn-out, late-night session Wednesday in the National Assembly.

Backed by many opposition Socialists as well as rebel lawmakers from the governing conservative Union for a Popular Movement, the amendment was adopted in a surprise vote in December amid heavy lobbying from consumer groups.

But the government deleted the amendment when it resubmitted the anti-piracy legislation for debate earlier this week.

Under fire from lawmakers, the culture minister reversed course early Thursday.

“I want there to be no ambiguity,” and for the text to be submitted to thorough deliberation, he said.

The latest draft lightens the penalties for those caught pirating music or movies online. But it also strengthens legal protection for anti-copy technologies known as DRMs, shielding them from challenges under French laws that grant consumers the right to make copies of music and film for private use.

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Working the System [8:33 am]

Radio vs. downloads as outlets: Labels Halt Downloads to Increase CD Sales

As blockbuster hits go, the R&B smash “So Sick” is hardly new territory for the 23-year-old singer known as Ne-Yo. Before crooning the song on his own album, he was a co-writer on the 2004 chart-buster “Let Me Love You” for the singer Mario.

But there’s one big difference: even though fans could hear “So Sick” on the radio for the last two months, they couldn’t buy it at popular online services like iTunes or Rhapsody, or anywhere else for that matter. Breaking from the music industry’s current custom, the singer’s label — Island Def Jam — decided not to sell “So Sick” as an individual song before Ne-Yo’s album hit stores last week. Label executives worried that releasing the track too early might cut into sales of the full CD — a fear that figures heavily in the music world’s lumbering entry into the digital marketplace.

The results of fans’ pent-up demand for Ne-Yo are now clear: his CD “In My Own Words,” burst onto the national album chart yesterday at No. 1, with sales of more than 301,000 copies, easily ranking as the biggest debut of the year so far. And just as eye-popping: the digital single of “So Sick” sold almost 120,000 copies in its first week, according to Nielsen SoundScan.

There is still plenty of debate over the effect of holding off on sales of the digital single; many also note that Island Def Jam offered a discount to retailers who stocked the album, allowing it to sell at stores like Target for $7.98 last week.

But if the industry determines that restricting digital sales pays off with bigger album sales, fans may soon find the instant gratification of snapping up new songs online becoming a little less instant.

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