February 10, 2003

2003 February 10 [5:53 am]

(entry last updated: 2003-02-10 18:50:49)

  • Got an e-mail from Hylton, who’s removed a bit of fugitive code from the Corante weblog, apparently based upon my whining yesterday - thanks!!

  • Since that worked, maybe I should also ask the same question about Jenny Levine’s Shifted Librarian, which also displays this now defunct Corante behavior. It would be nice to see it go, particularly since she has a fun post today on Valenti and a possible library chair of the future.

  • Today’s Globe is running the Janis Ian op-ed piece that ran in the LATimes a week ago. The letters to the editor should be interesting.

  • Jack Balkin continues his speculation on the parallels between the “free culture” movement (with goals pursued via Eldred) and the gay rights movement whose goals were also pursued via Constitutional challenges. I can’t give you a link - something’s wrong at his end - but you can start at the current weblog and backtrack to the Feb 8 posting.
    (Update - Jack points out that eventually Blogger gets its ducks in a row and, sure enough, the entry has a working link now!)

    More importantly, Prof Balkin offers up a response to Larry’s original late night questionings in the wake of the Eldred decision (he updates them here in a less bleak form). Balkin’s argument is that, like it or not, Larry’s legal strategy failed because:

    [i]t did not sufficiently recognize that what lies behind constitutional law is constitutional politics. Conservative jurists on the Supreme Court offer arguments for limited federal power for largely symbolic and ideological reasons that are connected to the goals of the conservative social movements of the 1970’s and 1980’s. That is why those judges and Justices were put on the federal bench in the first place. Arguments for limited federal power allowed the conservative justices to strike down or limit the reach of federal laws– particularly federal civil rights laws– that they and other conservatives don’t particularly like. The argument for limited federal power also allowed the conservative Justices to strike a symbolic blow for state’s rights.

    The Copyright Term Extension Act does not fit into these categories. It does not symbolically trench upon interests of the states, and it is not a liberal civil rights measure. It was generally understood, for better or worse, as a protection of property rights, and many conservatives tend to think that protecting property rights is a good thing.

  • A Copyfighter’s Musings cites an AEI-Brookings posting of a paper by Mark Nadel: Questioning the Economic Justification for (and thus Constitutionality of) Copyright Law’s Prohibition Against Unauthorized Copying: §106. Something to download, read and cogitate upon, I expect. In particular, the claim that the benefits of these copying restrictions do not exceed their costs…

  • (Off topic) Tom Tomorrow has posted a transcript of a recent O’Reilly Factor program, during which an invited guest, the son of a 9/11 victim, disagrees with Mr. O’Reilly’s position. Stunning, yet not terribly surprising.

  • Salon has a lengthy article on the peculiar position of AOL/Time-Warner inthe P2P music issue - which side of the battle will they choose. With some interesting speculation on why Verizon rather than AOL was targeted for the first subpoena to get the name of a Kazaa-using subscriber. Then there’s this:

    “The ISPs get thousands of these things, and they get a not insignificant percent that are not just wrong but are spectacularly wrong,” says Cohn of the Electronic Frontier Foundation. “And if the Verizon decision under 512h is upheld, we’ll start seeing the same thing for people’s identities, and they’re going to be wrong in the same percentage that they’re wrong now.” That’s because a key problem with the DMCA, critics of the law say, is that it provides little incentive for copyright owners to make sure that they’re providing the court with accurate claims. “They may as well make these things as broad as possible,” Cohn says. “There’s nothing in the system to make them do otherwise. It’s just takedown, takedown, takedown.”

    Critics of the Bates ruling also worry about intentionally fraudulent copyright claims making it through the system. If you have an entire legal apparatus devoted to “expeditiously” divulging people’s private information, there’s a chance that the system will become a target of people with something much more sinister than copyright enforcement in mind. “We have seen copyright laws abused by people who have other agendas,” Cohn says. “This is a method by which an angry ex-husband can locate an ex-wife, or a process by which stalkers can locate people.”

  • The Register summarizes their concerns about the proposed Patriot II Act

  • The MAD game in the P2P world gets a new candidate application: Locutus from the founder of FreeNet - a fully-encrypted P2P network basedon Microsoft’s .Net - Slashdot discussion - preview site

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