August 25, 2009

Picking A Meaningless Fight [8:24 am]

It’s nice to ask, but it’s hard to imagine that OMB is going to generate anything that really sticks. After all, it’s not the Government that’s the big player in this, and there will almost certainly be nothing that will prevent the Government from buying the same information from private firms that do exactly the same collecting and are not “encumbered” by OMB guidelines: Editorial - The Government and the Web (pdf)

The Office of Management and Budget is developing the new rules. Officials say they recognize that people must be told that their use of Web sites is being tracked — and be given a chance to opt out. More is needed. The government should commit to displaying such notices prominently on all Web pages — and to making it easy for users to choose not to be tracked.

It must promise that tracking data will be used only for the purpose it was collected for: if someone orders a pamphlet on living with cancer, it should not end up in a general database. Information should be purged regularly and as quickly as possible. These rules must apply to third parties that operate on government sites.

The Obama administration is working to better harness the power of the Internet to deliver government services. That is good. But it needs to be mindful that people should be able to get help and be assured that their privacy is being vigilantly protected.

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Missing the Point [8:14 am]

No, the issue is not whether “the risks justified the results;” the issue is what sort of a people are we prepared to be? If honoring human dignity is not a universal principle of governance, does that mean that, as a matter of course, we will embrace expediency instead? And, what does it mean for our current leadership that it has had to be forced by an NGO to take even this little action to begin to address the cancerous legacy of this ugly construction of governance that the preceding Administration (or Administrations) have elected to pursue: C.I.A. Abuse Cases Detailed in Report on Detainees (pdf)

The report found that the interrogations obtained critical information to identify terrorists and stop potential plots and said some imprisoned terrorists provided more information after being exposed to brutal treatment.

But the inspector general’s review raised broad questions about the legality, political acceptability and effectiveness of the harshest of the C.I.A.’s methods, including some not authorized by the Justice Department and others that were approved, like the near-drowning technique of waterboarding.

“This review identified concerns about the use of the waterboard, specifically whether the risks of its use were justified by the results, whether it has been unnecessarily used in some instances,” the report said, and whether the frequency and volume of water poured over the prisoner’s mouth and nose exceeded the Justice Department’s legal authorization.

The ACLU’s announcement, with links to all documents so far obtained: ACLU Obtains Detailed Official Record Of CIA Torture Program

Related (unfortunately): U.S. Says Rendition to Continue, but With More Oversight (pdf)

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Another Tenenbaum Fallout Piece [7:43 am]

Can’t stop the (free) music (pdf)

Tanklefsky, like many who grew up in the free-music era, where digital tracks are swapped, or now streamed on their computers, as casually as their parents once traded baseball cards, is skeptical that attitudes - and habits - will change as a result of a single high-profile court case. The fine, he says, was “ludicrous,’’ and only made an unlikely martyr out of Tenenbaum.

“It basically showed me I don’t want to download and share’’ music from sites like the ones Tenenbaum frequented, Tanklefsky says. “But if a friend has 10,000 songs on his iPod, you can move them all onto your iPod in about an hour, anyway.’’

Until the music industry figures out a way to compel listeners, especially the younger ones, to stop freeloading and pay for their tunes (a dilemma the newspaper industry can relate to), the free-music era seems here to stay. “The onus is really on the record companies to figure out a new business model,’’ Tanklefsky says.

Stories like the following one, of course, don’t exactly give the recording industry a lot of high ground to claim: Rapper behind ‘Roxanne’s Revenge’ gets Warner Music to pay for Ph.D (pdf)

“Everybody was cheating with the contracts, stealing and telling lies,” she said. “And to find out that I was just a commodity was heartbreaking.”

But Shante, then 19, remembered a clause in her Warner Music recording contract: The company would fund her education for life.

She eventually cashed in, earning a Ph.D. in psychology from Cornell to the tune of $217,000 - all covered by the label. But getting Warner Music to cough up the dough was a battle.

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Serving the Lizzie Borden Aficionados [7:40 am]

Oh, and getting the US Government to help increase profits through state-mandated exclusivity: Fall River museum wins marketing rights to Lizzie Borden’s name (pdf)

Webster, a 34-year-old who became fascinated with the accused ax-murderer as a preteen and today has a cat named after her, was not stocking up on any old souvenirs. These were exclusively trademarked tchotchkes, patented merchandise of the Lizzie Borden Bed & Breakfast, which in a marketing coup has just landed the rights to the Lizzie Borden name and her black-humored brand.

The B&B, a popular downtown tourist attraction that draws up to 150 visitors a day, pursued the merchandising license from the US Patent and Trademark Office after a legal dispute last year with a Salem shop called The True Story of Lizzie Borden, which in a settlement agreed to change its name to the 40 Whacks Museum.

Owners said they hope it will dissuade competitors looking to capitalize on the unabated interest in the case, which enthralls historians, ghost-hunters, law students, and fans of the macabre.

“We wanted to protect our franchise,’’ said Lee-ann Wilber, who has co-owned the museum since 2004. “We want to keep the name and Lizzie Borden merchandise local, so people know they are buying something that comes from Fall River.’’

Trademarking a name out of history — I can understand the gall of applying for it, but I cannot believe that the USPTO actually gave it to someone. “Freedom of Expression” was a good trick, but this is truly indicative of just how far gone we are when it comes to converting things into property.

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SCO Just Won’t Go Away [7:31 am]

Unix ruling overturned (pdf)

A three-judge panel of the 10th US Circuit Court of Appeals ruled that a judge erred in August 2007 by granting the copyright to Novell. The panel ordered a trial to determine ownership.

The opinion: SCO v. Novell - 08-4217 (local copy) - an arcane dive into copyright, contracts and adjudication. The bottom line: summary judgment was not appropriate and there should be a full trial on some of the questions that have been raised:

Because we conclude summary judgment is inappropriate on the question of which party owns the UNIX and UnixWare copyrights, we must likewise reverse the district court’s determination that “Novell is entitled to summary judgment [on SCO's claim] seeking an order directing Novell to specifically perform its alleged obligations under the APA by executing all documents needed to transfer ownership of the UNIX and UnixWare copyrights to SCO.” Dist. Ct. Op. 62. We take no position on which party ultimately owns the UNIX copyrights or which copyrights were “required” for Santa Cruz to exercise its rights under the agreement. Such matters are for the finder of fact on remand.

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August 24, 2009

Time Running Out? [3:31 pm]

Opposition Grows in Europe to Google Book Deal (pdf)

Opposition is mounting in Europe to a proposed class-action settlement giving Google the right to commercialize digital copies of millions of books.

The settlement would permit Americans to buy online access to millions of books by European authors whose works were scanned by Google at American libraries.

While some big European publishers, like the Oxford University Press and Bertelsmann (which owns Random House) and Georg von Holtzbrinck (the owner of Macmillan), support the agreement, there is widespread opposition among French publishers. The German government, supported by national collection societies in Germany, Austria, Switzerland and Spain, plans to argue against it and encourage writers to pull out of the agreement.

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Change I CANNOT Believe In [3:28 pm]

It’s increasingly easy to understand those who don’t know why they even bothered to vote: Rendition of Terror Suspects Will Continue Under Obama

The Obama administration will continue the Bush administration’s practice of sending terror suspects to third countries for detention and interrogation, but will monitor their treatment to insure they are not tortured, administration officials said on Monday.

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August 20, 2009

Hmmmm [6:59 pm]

This looks like a copyright fight in the making: Internet Materials in Opinions: Citations and Hyperlinking [via Findlaw's Technologist blog]

The guidelines suggest that, if a webpage is cited, chambers staff preserve the citation by downloading a copy of the site’s page and filing it as an attachment to the judicial opinion in the Judiciary’s Case Management/Electronic Case Files System. The attachment, like the opinion, would be retrievable on a non-fee basis through the Public Access to Court Electronic Records system. When considering whether to cite Internet sources, judges are reminded that some litigants, particularly pro se litigants, may not have access to a computer.

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August 19, 2009

A New Tack [8:48 am]

Lawyer and Author Objects to Google Book Deal (pdf)

In the latest objection, Scott E. Gant, an author and partner at Boies Schiller & Flexner, a prominent Washington law firm, plans to file a sweeping opposition to the settlement on Wednesday urging the court to reject it.

“This is a predominantly commercial transaction and one that should be undertaken through the normal commercial process, which is negotiation and informed consent,” Mr. Gant said in an interview. Google and its partners are “trying to ram this through so that millions of copyright holders will have no idea that this is happening.”

Unlike most previous objections to the project, which focused on policy issues and recommended modifications to the settlement, Mr. Gant argues that the agreement, which gives Google commercial rights to millions of books without having to negotiate for them individually, amounts to an abuse of the class-action process. He also contends that it does not sufficiently compensate authors and does not adequately notify and represent all the authors affected.

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August 13, 2009

Sony Moves Toward An Open eBook Format [8:52 am]

Sony Plans to Adopt Common Format for E-Books (pdf)

On Thursday, Sony Electronics, which sells e-book devices under the Reader brand, plans to announce that by the end of the year it will sell digital books only in the ePub format, an open standard created by a group including publishers like Random House and HarperCollins.

Sony will also scrap its proprietary anticopying software in favor of technology from the software maker Adobe that restricts how often e-books can be shared or copied.

After the change, books bought from Sony’s online store will be readable not just on its own device but on the growing constellation of other readers that support ePub.

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Exhibit (n+1): Software Patents [8:25 am]

U.S. Court Bars Microsoft Word Sales (pdf)

A Texas district court on Tuesday ruled in favor of Canadian software firm i4i Ltd and filed an injunction preventing Microsoft from selling the 2003 and 2007 versions of Word.

The patent relates to XML, or extensible markup language, which is used to manipulate a documents content and architecture separately.

See extensive posting here: Patent Injunction: Microsoft Ordered to Stop Selling Word

The patent in question is #5,787,449: “Method and system for manipulating the architecture and the content of a document separately from each other” awarded July 28, 1998.


A system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations. The system, for use by computer software developers, removes dependency on document encoding technology. A map of metacodes found in the document is produced and provided and stored separately from the document. The map indicates the location and addresses of metacodes in the document. The system allows of multiple views of the same content, the ability to work solely on structure and solely on content, storage efficiency of multiple versions and efficiency of operation.

With luck, this case will become the basis for arguing that software patents are fundamentally inconsistent with the constitutional goal “To promote the Progress of Science and useful Arts.” More likely, though, will be the demonstration that this patent fails on novelty, but it’s going to take some digging, it appears. After all, Microsoft wasn’t able to convince the court of the existence of prior art, although the opinion does seem to argue that part of its rejection of those claims are based on procedural grounds rather than on consideration of the evidence. The opinion *does* note that the Patent Office was (and is still?) reviewing the patent in light of claims of obviousness, but that apparently was not enough to grant the motion for a new trial.

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August 12, 2009

Plus Ça Change [10:54 am]

Judge rules against RealNetworks DVD copy software

Walt Disney Co., Sony Corp. and Universal Studios, among others, filed suit against Seattle-based RealNetworks in 2008, saying its RealDVD device is an illegal pirating tool. The Hollywood studios contend that RealDVD would keep consumers from paying retail for movies on DVD that could be rented cheaply, copied and returned.

RealNetworks has said its product legally meets growing consumer demand to convert their DVDs to digital form for convenient storage and viewing. RealNetworks lawyers have argued that RealDVD is equipped with piracy protections that limit a DVD owner to making a single copy. They also said the device provides consumers with a legitimate way to back up copies of movies legally purchased.

On Tuesday, U.S. District Court Judge Marilyn Hall Patel ruled in favor of the movie studios in granting a preliminary injunction against RealDVD, declaring that the technology would allow consumers renting and buying DVDs to violate copyright laws.

In a 58-page document, Patel said RealNetworks failed to show that the RealDVD products are to be used by consumers primarily for legitimate purposes.

Basically, it’s game over when we get to the language on page 25 of the ruling:

92. Plaintiff must then show that Real’s RealDVD products are either: (a) primarily designed or produced for the purpose of circumventing technological measures that effectively controls access to a copyrighted work; (b) have only a limited commercially significant purpose or use other than to circumvent such technological measures; or (c) marketed for use in circumventing such technological measures. 17 U.S.C. § 1201(a)(2). These are disjunctive clauses. The court need look no further than the first enumerated condition to find that the Studios are likely to prevail on the section 1201(a)(2) claim. [...]

There you go: “the law says this dumb thing, and this case clearly falls into that domain, so I’m done now.” This *is* one of the things we pay judges to do, actually — interpret the statute and apply the law. And, since judges generally prefer NOT to decide anything, it’s always nice to find statutory language that gives clear guidelines.

But, it also means that we have to wait until a judge is willing to say, “the law says this, which is clearly a) wrong, b) fallacious, c) unconstitutional, d) inconsistent with some other law/principle, or etc., and therefore hewing to the terms of the statute is incorrect/wrong.” This, of course, is more work and, according to some, constitutes “judicial activism” — except, that’s also what we expect judges to take on.

Judge Patel, of course, is issuing an injunction, not actually deciding the case. She may decide to consider the larger issues when the trial occurs, or she may not.

[Aside:] This bit struck me as the funniest bit in the order:

100. Real’s argument that RealDVD does not “remove” the layers of CSS protection, including drive-locking, authentication or bus decryption, because those CSS requirements have been fulfilled by RealDVD when it first obtains DVD content from a DVD and are not needed thereafter from a DVD amounts to legal legerdemain. [...]

I would have thought that “legal legerdemain” is what almost all of the domain of legislated rights would be about!

And the most horrifying part of the order starts on page 30, where we learn about ARccOS and RipGuard, technologies embedded in DVDs to create errors in the datastream — corrupting the data to make copying difficult. That’s bad enough, but Judge Patel elects to interpret the engineering design of RealDVD as intentional circumvention when it is also a way to correct for errors in the data stream. Her contention that the rarity of these errors in the normal course of DVD production means that any software designed to correct for these errors must clearly be designed to circumvent these copy protection schemes is judicial intervention into engineering design rationales — truly far afield from her training!

On the other hand, the Judge at least recognizes the hazards, even if she decides that she’s not going to do anything about it — yet:

There is always a struggle between pleasing copyright holders and copyright users. The DMCA represents Congress’ attempt at a balance to preserve ownership rights protection for companies and artists in the face of the modern reality of a digital world with an increasingly technologically-savvy population. In some circumstances, the law can choose to value the right of public access to unavailable copyrighted works more heavily than the property rights of the owners of those works. However, the reach of the DMCA is vast and it does not allow courts the discretion to make this assessment and render a value judgment untethered from the language of the statute. [...] The court is bound by the DMCA provisions at issue, even if it determines the extent to which innovative technologies realize their future potential. (p. 41)

The EFF site, with more materials on the case — RealNetworks v. DVD-CCA (RealDVD case)

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August 11, 2009

Necessity, Invention? [7:13 am]

Or gimmick? G.M. to Start Selling on eBay on Tuesday (pdf)

The program is one way for consumers to receive discounts on cars without dealing with the haggling often associated with buying cars through dealerships. The partnership with eBay is also a crucial part of G.M.’s effort to return to profitability after five years of heavy losses and to remain the new-vehicle sales leader in the United States.

Unlike a typical eBay sale, vehicles will not be auctioned to the highest bidder but rather listed at a “buy it now” price equal to G.M.’s supplier price. Shoppers also can submit a lower offer that the dealer can accept or reject.

“It’s very attractive to a core group of customers who don’t really care for the negotiating experience at a dealership but do want to negotiate,” said Mark LaNeve, G.M.’s vice president for United States sales. “Now they can do that anonymously online. So we think it’s going to give us some opportunities we didn’t have before.”

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Online Astroturfing Scrutinized [7:08 am]

Notice Those Ads on Blogs? Regulators Do, Too (pdf)

Two of the National Advertising Review Council’s investigative units plan to announce Tuesday their first decisions involving blogs. Their recommendations call for clear disclosure when a company is sponsoring a site or paying for product reviews.

That’s nothing shocking, but it’s part of a sharper focus on the relationships between bloggers and advertisers. Attorneys general and the Federal Trade Commission, which is about to expand its endorsement guidelines to include blogs, are investigating the area, along with the self-regulatory groups.

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Chilling Effect [6:57 am]

Lego Prohibits Use of Product in Spinal Tap DVD (pdf)

“We love that our fans are so passionate and so creative with our products,” said Julie Stern, a spokeswoman for Lego Systems, the United States division of the Lego Group, a Danish company founded in the 1930s. “But it had some inappropriate language, and the tone wasn’t appropriate for our target audience of kids 6 to 12.”

As is Spinal Tap’s wont, the song, addressed to a minor, parodies rock stars’ inflated egos and libidos.

Kia Kamran, an intellectual property lawyer representing Spinal Tap, said the band could have prevailed had Lego sued alleging copyright infringement, because Mr. Hickey’s video does not show the brand’s logo and is satirical. But the band did not deem the fight worth the expense, he said.

“In my heart of hearts, I do think this is fair use” of copyrighted material, Mr. Kamran said.

[...] “Lego are the only people who strictly said no,” [Harry] Shearer said. “It was Lego Kafka.”

Well, of course it was — it’s a copyright fight over fair use!

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Not Just My Idea, Of Course [6:54 am]

As I noted: Admired in Class, a Scholar Falters in Court (pdf)

The outcome in the Tenenbaum case saddened Professor Nesson’s friends and fans. Elizabeth Stark, who teaches at Yale University, said, “He’s very much about big ideas,” adding that “if you don’t see the big picture, then you just don’t get Charlie.”

Ten years ago, Professor Lessig dedicated his first book to Professor Nesson: “For Charlie Nesson, whose every idea seems crazy — for about a year.”

Professor Lessig, who said he was chagrined to see his private e-mail message splayed across the Internet, said he still disagreed with his friend’s approach, and with his pursuit of the case at all. But, he added, “we’ll see where I am in a year.”

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August 6, 2009

Just Thinking … [7:52 am]

Today’s Boston Globe put me in a mood to look back over the last couple of weeks, specifically at the Tenenbaum copyright infringment lawsuit that the record companies won. There are two items in today’s paper — first, this submitted op-ed (sorry about the length of the excerpt, but it’s too well written to just chop up): Pirates, diamonds and rust (pdf)

[...] On this summer evening, as I surrendered to “Diamonds and Rust’’ and other songs that sounded richer than I’d ever heard on tape or CD, I went back to the time I discovered Joan Baez, and other music I’ve loved all my life.

It was on a cassette, copied for my brother and me by a friend, from an original cassette that someone else had brought back from a trip to the United States. Back in the ’80s, owning original imported music was a privilege, and much of the Western music in our homes was copied. Friends and family traveling abroad brought back music. They also brought back cellophane-sealed stacks of blank tapes, which were opened and distributed as gifts. We picked the music we wanted to copy, put the two tapes on someone’s tape deck, and the music went around. The blank tapes came with covers on which we wrote the song titles, often in pencil, so that we could erase old favorites and record new ones. We even tried to copy some cover art work from the original. By the time we were done, at least a dozen people had copies from a single original. Then there were copies of copies.

Was it illegal? Was it unethical? We never thought about it. Even if we had, would we have stopped? Music sharing was the only way most of us could get the music.

[...] About the financial damages to recording labels and artists, I am not so sure.

From those first tapes in high school, I carried the music with me when I went on to college and built an ever-growing collection of original tapes. When my husband attended university, he began collecting original CDs, which he got in exchange for tutoring sessions on campus. When he could, he bought at least one every month. More than two decades after those first tapes, my brother is still building out his collection - on his iPod at 99 cents a song. And then there are the tickets that my friends and I have bought for concerts under summer skies like the one last week.

Eventually, it seems, recording labels and artists do collect their dues.

Second, there is this letter to the editor: Downloader’s punishment doesn’t fit crime:

What ever happened to the punishment fitting the crime? Drunk drivers pay significantly less for each infraction, and they endanger everyone. Tenenbaum is a 25-year-old student who will be forced into bankruptcy because he partook in a practice that was, and still is, widely done.

It seems the record companies are hoping to recoup every nickel they’ve lost in the last decade from one person. [...] Instead [of a fairer penalty], huge greedy corporations get richer, and one student and music lover is bankrupted, and the justice system looks bereft of common sense. How ridiculous.

So, what do I draw from this? The Boston press has spent a great deal of time on the Tenenbaum case, Monday-morning quarterbacking Charlie Nesson’s handling of the case. (Other Boston Globe coverage: Four record labels suing BU student; Opening statements made in civil suit over swapping songs; BU student’s admissions of illegal downloads may cost him $4.5m; and BU student fined $675,000 for illegal music downloads). And, on it’s face, it does look like Charlie could have handled it better — after all, he didn’t win.

But I am reminded of the dedication page of Larry Lessig’s Code and Other Laws of Cyberspace:

For Charlie Nesson: Whose Every Idea Seems Crazy — For About A Year

The op-ed and the letter show that there are those who understand that the business model that the record companies are pursuing is a pure construct of the current state of copyright law. For these people, at least, the “Lessig dilemma” does not hold (roughly, the Lessig dilemma is the notion that you have to become a lawyer *and* a telecommunications engineer to grasp the flaws with the current copyright system).

As I learned many years ago, Charlie does not subscribe to the Lessig dilemma. And, even then, he had a hard time articulating the strategies that he felt could get around Larry’s pessimism, largely leaving people scratching their heads (and, sometimes, measuring his neck for a rope). But, as the rise of the clog and citizenship production of internet content has shown, his ideas were effective.

So, I have to wonder what I’m not grasping about what appears to be his current quixotic approach to the problem. I am sure there’s a long game, and today’s Globe is evidence that he may well be making headway. But I’m not clever enough at reading the tea leaves — nor have I had the time to really study the trial transcript (if I even knew where to get it!)

But I am looking forward to what I assume will be an appeal.

See also this other letter to the editor today — Protecting school’s good name, one trademark at a time (responding to this article over the weekend - pdf - which got a reaction from the MIT student paper).

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August 5, 2009

My Tax Dollars At Work [8:47 pm]

Poll: Modifying game consoles a no-no? : Opinion L.A.

Matthew Crippen, a Cal State Fullerton student, was arrested on federal charges of modifying videogame consoles for profit. The 27-year-old pleaded not guilty and was released Monday after posting $5,000 bond. If convicted, Crippen faces up to 10 years in prison.

The feds say Crippen modified Microsoft Xbox, Nintendo Wii and Sony Playstation consoles to play pirated disks, violating the Digital Millennium Copyright Act. Federal prosecutor Mark Krause told KPCC that Crippen “advertised online and had a large clientele.” 

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Wow! [11:10 am]

David Vladeck’s Fresh Views at Agency Overseeing Online Ads (pdf)

Most of the online world is based on a simple, if unarticulated, agreement: consumers browse Web sites free, and in return, they give up data — like their gender or income level — which the sites use to aim their advertisements.

The new head of the Bureau of Consumer Protection at the Federal Trade Commission, David C. Vladeck, says it is time for that to change. In an interview, Mr. Vladeck outlined plans that could upset the online advertising ecosystem. Privacy policies have become useless, the commission’s standards for the cases it reviews are too narrow, and some online tracking is “Orwellian,” Mr. Vladeck said.

After eight years of what privacy advocates and the industry saw as a relatively pro-business commission, Mr. Vladeck, has made a splash. In June, the commission settled a case with Sears that was a warning shot to companies that thought their privacy policies protected them. In just over six weeks on the job, he has asked Congress for a bigger budget and for a streamlined way to create regulations. And he said he would hire technologists to help analyze online marketers’ tracking.

“Orwellian!” I like it!

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From the Digital Book Front [11:00 am]

Puzzling over the the tactics of digitization in another industry: Sony Cuts Prices on E-Books and Unveils Readers

Regarding the price cut for digital books, Mr. Haber said: “We have to offer value. It’s clear e-books should be less expensive than regular books, with the savings on printing and logistics getting passed on to the consumer.”

Book publishers will still retain their traditional cut of every e-book sale — about half the hardcover retail list price. But they are concerned that as online retailers like Amazon and Sony gain market power, they will eventually tire of losing money on e-book sales and ask publishers for lower wholesale prices, a move that would cut into their profit margins.

“We all know that these companies are taking a loss and that’s not going to continue forever,” said Jonathan Karp, publisher and editor in chief at Twelve, an imprint of the Hachette Book Group. But he added that “$9.99 has now become the effective price for e-books in August of 2009. Let’s just take a breath and see how long this lasts.”

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August 2009
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