2003 July 14

(entry last updated: 2003-07-14 15:37:27)

This is a summer cold that just won’t quit!

Oh yeah – Happy Bastille Day!!

  • John Palfrey points out a Terry Fisher op-ed over at CNet News: A royalties plan for file sharing

  • The latest Tech Law Advisor newsletter is up

  • I forgot about this other Globe article: Reselling high-speed Internet [pdf]. The subject is Speakeasy, a DSL provider who’s not only unworried about the use of WiFi to share internet access, but is looking to facilitate the process:

    One reason might be Speakeasy’s policy on sharing. The company just doesn’t care. If you want to let the whole block share your DSL account, go right ahead. Apgar figures it’s a good way to attract new customers. ”The more people you can give a taste of what you can do with broadband, the better,” he said.

    Still, Apgar is as interested in making a buck as the next fellow. Which is why Speakeasy has just launched an innovative new option called Netshare. The concept is simple: Instead of giving your excess bandwidth to a neighbor, why not charge him for it?

    A Netshare customer asks his neighbors if they would like to pay, say, $20 a month for wireless broadband access. Those who agree are given a Web address, where they sign up. Speakeasy bills the neighbor, thus avoiding backyard feuds. The new subscriber simply gets his own WiFi card and logs onto his neighbor’s wireless Internet router. Half of the money collected goes to Speakeasy, the other half to the Netshare account holder. ”It effectively in many areas will give people the ability to get broadband for $20 a month,” said Apgar. ”It’s a terrific way to try it.”

  • The latest Technological Innovation and Intellectual Property newsletter is out, discussing a topic that got a certain amount of coverage at ILaw – the recent UK report from the Commission on Intellectual Property: Integrating Intellectual Property Rights and Development Policy

  • Harry Potter and the Internet Pirates [pdf]

    So far, authors and publishers have mainly stood on the sidelines of the Internet file-swapping frenzy that has shaken the music industry and aroused fear among makers of motion pictures. But the publishing phenomenon around the young wizard appears to be forging a new chapter in the digital copyright wars: Harry Potter and the Internet pirates.

    A growing number of Potter devotees around the world seem to be embracing the prospect of reading the voluminous new book (766 pages in the British edition; 870 in the American version) on the screen. And at least some of them are assisting in the cumbersome process of scanning, typing in or translating the book, which its author, J. K. Rowling, has not authorized for publication in any of the existing commercial e-book formats.

    […] “What is unusual for us as people who deal with piracy of books is that these are people who are not directly making money for having put them on the Internet,” said Ian Taylor, international director of the Publishers Association in Britain. “That is obviously what’s been happening with peer-to-peer music, but it’s not something we’ve had to deal with before.”

    related Wired News article: Germans Just Wild About Harry

    But Rowling’s imaginative universe has also moved a group to form an online community devoted to bringing the book alive in German translation. More than 10,000 people, with an average age of 16, have joined the virtual community at the Harry-auf-Deutsch website.

    ,p>

    Despite press reports, the idea is not simply to hurry the book into German so more readers can enjoy it, but rather to turn the work of translation into an ongoing point of departure for discussion, disagreement and collective imagination.

    Put another way: Translating Potter is not a mere diversion, it’s a way of life.

  • Today’s Globe covers the Illegal Art exhibition: Art attack [pdf]

  • Declan on the Initiative for Software Choice: The politics of open-source software. A look at the implications of all these initiatives.

  • Carlton Vogt’s Ethics Matters column today is about the ethics (rather than the legality) of music downloading – he’s clearly trolling for flames with this summary:

    So putting aside legal considerations, the ethical question at hand is, “Have I harmed anyone?” That is, have I set back any of their important interests without justification? Because I have no obligation to buy a CD, if I don’t want one, it’s hard to say that I have harmed either the artist or the recording company by not buying the CD. And in downloading the music, I may have advanced at least one of the artist’s interests because I am listening to the music.

    On the other hand, if I am downloading or sharing the music to avoid otherwise buying the CD, then you could say that I was harming both the artist and the recording company because I was depriving them of income they otherwise would have had — my money. And that makes all the difference.

    The fly in the ointment lies in who determines whether or not I would have bought the CD. You certainly don’t know and neither does the recording company. I may think I know, but we have a remarkable ability to deceive ourselves, especially when self interest is involved.

  • Slashdot starts the day off with a couple of copyright topics:

2003 July 13

(entry last updated: 2003-07-13 20:47:38)

A summer cold has laid me low, but I’m in the office to catch up on some work. Thanks for all the comments on the ILaw summary; Yochai reminded me by e-mail that "pragmatist" has a formal definition that does not mean an absence of values. See OED pragmatism –

Politics. Theory that advocates dealing with social and political problems primarily by practical methods adapted to the existing circumstances, rather than by methods which have been conformed to some ideology.

I should have expected that the ILaw team would be particularly careful about wording.

  • Doc Searls points to an argument over the end-to-end discussion: Misunderstanding the Internet

  • The BBC profiles one of the creators of the MP3 format, Karlheinz Brandenburg: MP3 creator speaks out; Slashdot discussion: MP3 Creator On Sharing Music. Nothing terribly radical here, but a name to know.

  • From a blog doesn’t need a clever name: What’s holding back online music?, a Wharton-based analysis; and an article on the next 321 Studios product: DVD ‘ripper’ pre-empts DMCA ruling

  • Derek’s spending a lot of time thinking about P2P music: What Napster Should Have Said (Part 1), related to his posting on Posner and Commercial Skipping

  • Matt points to an article from the Journal of the Copyright Society: What’s So Fair About Fair Use?

    In fact, tonight I’m going to modestly propose that when it comes to derivative works, fair-use doctrine is a red herring and we should just dump it.

    […] Though the bundle of legal rights we have created for this purpose is known as intellectual property, it’s worth reminding ourselves that these rights stand on a somewhat different footing from the property rights our founders held to be so sacred. In fact, the Constitution doesn’t refer to them as property at all. Their protection is not one of the ends of government, but an instrumental means to an end.

    […] The real question isn’t whether we should grant authors the power to exclude uses of their work they don’t like. The question is whether we need to give them the power to exclude infringing derivative works in general.

    […] Framed in this way, the problem is akin to that of deciding when real property should be protected by a liability rule as opposed to a property rule. One of the big advantages of private ownership is that it leads to efficient allocation of scarce physical resources. But private property can also be used inefficiently.

    […]

    The simple fact is that owners of intellectual property tend to be control freaks, and regard anyone who would erode this control as an enemy. “It’s my creation,” they will say. “What right do others have to tamper with it?” To this I say: It’s your creation if you keep it secret. Once you release it to the rest of us, it enters our minds and becomes ours as well. As Jefferson put it. “it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it.” So long as their right to a share in the profits of derivative uses is enforced, I suspect that copyright holders would actually be better off in a system in which everyone was allowed to exploit the work. When set free to do so, people will find ways to extract value from intellectual properties that original authors, too fearful of sullying their creations, would never dream of. They do not like this. So they say. Try it and they may, I say.

    Well worth a careful read!

  • The next piece in Siva Viadhynathan’s essay on the ideologies of online culture is online: ‘Pro-gumbo’: culture as anarchy

    Culture is anarchistic if it is alive at all. It grows up from the common, everyday interactions among humans who share a condition or a set of common symbols and experiences.

    We often mistake the collection of end-products of culture – the symphonies and operas, novels and poems – that have survived the rigorous peer review of markets and critics as the culture itself. Culture is not the sum of its products. It is the process that generates those products. And if it is working properly, culture is radically democratic, vibrant, malleable, surprising, and fun.

    These two different visions of culture explain much of the difference between the assumptions behind information anarchy and information oligarchy. Anarchists – and many less radical democrats – believe that culture should flow with minimal impediments. Oligarchs, even if they seem politically liberal, favor a top-down approach to culture with massive intervention from powerful institutions such as the state, corporations, universities, or museums. All of these institutions may be used to construct and preserve free flows of culture and information. But all too often they are harnessed to the oligarchic cause, making winners into bigger winners, and thus rigging the cultural market.

  • More on Shawn Fanning’s efforts to resurrect Napster: Napster, Audio Fingerprinting, and the Future of P2P (see July 8 entry) A related press release: Relatable To Build Databases Of 5 Million Song Fingerprints From All Media Guide Extensive Music Archive

  • Slashdot discusses the recent NYTimes article on Xbox hacking (my ref): Xbox Hackers, Linux, the DMCA, And Modchips

  • Intel v. Hamidi gets a NYTimes writeup (trespass to chattels!): Fighting for the Right to Communicate [pdf]

    He [William M. McSwain] said that he eventually came to believe that Mr. Hamidi’s case was the most important Internet dispute ever litigated. “If Intel could use trespass laws, without demonstrating any damage to its equipment,” he said, “then this would have huge implications for all kinds of communications taking place on the Internet.”

    The article that Mr. McSwain published in the May 1999 issue of The Harvard Law Review validated Mr. Hamidi’s case. “It is ironic,” he wrote, “that a technological giant such as Intel, which has helped to usher in and has greatly benefited from the cyberspace age, now expects the state to protect it from a creature of its making.” The article attracted attention.

    […] “To us, it seemed very clear that if Intel won this case we’d all be at risk of losing the fundamental value of the Internet, which is its openness,” said Lee Tien, a senior lawyer for the [Electronic Frontier] foundation. “Imagine what could happen if at any time any site could say, `We don’t want you to visit, we don’t want you to search, we don’t want your e-mail.’ The Internet would fragment.”

    […] Despite broad support for the decision, there are those who believe this is a dangerous legal decision, one that will open the floodgates to spam, erode employers’ powers and give unions free rein to woo members by e-mail. As part of a longstanding policy, Intel would not allow the law firm that handled the case, Morrison & Foerster, to comment on the decision. But in one of its briefs for Intel, the firm wrote that the basic issue was property rights. “Ownership of private property carries with it the right to prevent others from using this private property to harm the owner,” it said.

  • The Register also discusses the updated Domesday Book project: BBC Domesday Project saved for Nation. This was a project to record the state of the UK in what was then a reliable format: a laser videodisk readable on an Acorn. Certain (predictable) problems ensued, but luckily there weren’t copyright issues with the change to a new format: as these Slashdot comments remind us, we are not so lucky today.

  • More details on the copyright suit in Indiana over course packs: Copyright fight unfolds near campus [pdf]

  • From The Register’s Andrew Orlowski on the Webcaster’s Alliance lawsuit: Radio royalties: the ticking timebomb under the RIAA

  • From yesterday’s NYTimes – a story that mirrors the issues raised in the privacy lecture at ILaw: A Web Site Causes Unease in Police [pdf]

    The law generally draws no distinction between information that is nominally public but hard to obtain and information that can be fetched with an Internet search engine and a few keystrokes. The dispute over Mr. Sheehan’s site is similar to a debate that has been heatedly taken up around the nation, about whether court records that are public in paper form should be freely available on the Internet.

    In 1989, in a case not involving computer technology, the Supreme Court did allow the government to refuse journalists’ Freedom of Information Act request for paper copies of information it had compiled from arrest and conviction records available in scattered public files. The court cited the “practical obscurity” of the original records.

    But once accurate information is in private hands like Mr. Sheehan’s, the courts have been extremely reluctant to interfere with its dissemination.

2003 July 10

(entry last updated: 2003-07-10 13:58:57)

Ugh! A summer cold strikes………

  • From the BBC: File swappers ‘buy more music’. Interesting to note the rhetoric in this discussion, where the economics of ‘free’ are used to argue that ‘P2P for piracy’ vastly outweighs ‘P2P for promotion’ as a working model for the practice.

  • Donna’s gone public with her announcement that she’ll be leaving the Berkman Center and going to work at the EFF – Congratulations!

  • BusinessWeek yesterday, US News & World Report today. A cover story on the RIAA’s lawsuit strategy: A Nation of pirates [pdf]

    But ultimately, the creative industries may have to adapt to a new role in which they act more as publicists and less as distributors, perhaps earning a percentage of the artists’ revenues. “Record labels will have a promotional role,” says Bernoff. “They will be like agents in a lot of ways, where they help artists to get big.” Trouble is, today’s pirates may not want to pay more than a song for that service.

    Plus a side article on the MPAA’s worries: Hollywood fears a heist [pdf]

    And in the end, says Bruce Schneier of Counterpane Internet Security Inc., any efforts to stop computer files from being copied are just stopgaps: “They’re all temporary fixes.” Digital bits can and will be copied; some expert somewhere will eventually crack any security system, and the hack will spread over the Internet. Maybe the entertainment industry should bank on events, appearances, or advertising, not on digital files, Schneier says. “Sell the experience,” he urges, “not the bits.”

  • Those with "Bunnie" Huang’s bent get a writeup today in the NYTimes: Some Xbox Fans Microsoft Didn’t Aim For [pdf], with this sidebar on his book Behind a Hacker’s Book, a Primer on Copyright Law [pdf]

  • TCPA strikes in this article linking your trusted computer to an application: IBM, Adobe boost digital signatures

    Forms and other documents created in the portable document format (PDF) used by Acrobat will be able to tap into the security chip included on all recent IBM desktop and notebook PCs. Among other purposes, IBM’s “embedded security subsystem” can be used to store the electronic signature data, providing an extra level of security over more typical systems that store signatures on a PC’s hard drive.

  • Slashdot discusses the Webcaster Alliance’s claims: Webcaster Alliance Threatens To Sue RIAA

  • Puretunes gets its RIAA lawsuit: RIAA sues Spanish music site; The CNet News story: RIAA sues vanishing Spanish music site

Thoughts post-ILaw 2003

(entry last updated: 2003-07-09 19:09:26)

(I’ve been working on this long enough; in some respects, it probably won’t ever get finished – the links, for example – but I need to put this out and see what I get back. Those of you who were there, let me know!

Update: I’ve heard from Yochai that my concern about pragmatism stems from the colloquial construction of the term, while the ILaw profs were using the formal concept from political philosphy)

I found the survey that we were asked to fill out at the close of ILaw last night in my luggage.  I had such mixed feelings at the close of the conference that I didn’t want to comment until I had some time to think about the week more carefully.

I thought that my moroseness at the close of ILaw was just a natural reaction to the realization that the extraordinary group of people that I met there this year was about to scatter to the four winds – not to mention the fatigue associated with blogging the sessions (I am in awe of Donna’s perseverance; I think I’ve learned my lesson and will leave such things to the pros!)  However, upon reflection, I find that there’s something else to it, although it took me a couple days to put my finger on it. 

The New Structure

First, the positives.  As Terry Fisher described, this year’s ILaw was a significant departure from what had gone before, based in large part upon a set of structuring ideas credited to Larry Lessig.  These changes have, I believe, given the program a kind of conceptual integrity that was lacking last year, although there are some rough edges still to be worked out.

A look at the lecture topics can be used to show this conceptual structure.  According to my rough descriptions, we have the following course syllabus (thanks to Etienne for his help on assembling the URLs!):

(Aaron’s overall notes; Scott Rosenberg promises some, starting, it appears, with this bit on semiotic democracy; VentureBlog on Larry’s presentation skills; Jim Flower’s followup thoughts on meme propogation and conference

blogging)

A first cut at this list suggests the following basic structure of the five days:

  • Day 1: Background and Introduction To The Concepts of Code (with a little antidote to the pessimism of Larry’s vision in the form of the blogging panel)
  • Day 2: The Layer Model of Communication and Freedom & Control at the Physical Layer
  • Day 3: Copyright and Culture: Freedom & Control of Creative Expressions At the Content Layer
  • Day 4: Freedom & Control in Software: The Logical Layer
  • Day 5: Emerging Issues In Freedom & Control and Wrapup

Here, then, is the key structural innovation brought to the course – the merging of the layer model of communication (physical, logical and content) with the framework from Code

that Larry used to describe the different mechanisms of control: markets, law, norms and architecture. While Larry’s now-famous mandala pervades all of the course, the addition of the three-layer communication model brought a very powerful way of framing a set of issues around a particular battlefield/layer.  And, because changes in any one of the layers influences communication, the presenters did not have to limit their discussion of consequences to a single layer.  I found this to be particularly effective (and not just because I spent the past term working on developing a course with the indentical layer metaphor as a basis!)

Essentially, we saw the workings of the modalities of control at each of the three layers of the model of communication, with a focus on the role of law and, to a lesser extent, the other modalities in shaping both the problems and their resolution in this area.

Some Missing Pieces

What I find interesting as I reflect on the week are the other models and structures that emerged over the course of the week, several of which were left unexamined, largely because they are part of the underpinnings of most legal education.  A short list:

  • The law as the handmaiden of equity rather than justice.  This is, as I have been led to believe, a well established concept within the legal profession, but it is probably not as widely appreciated by outsiders.  At several points, the audience was confronted with economic analyses of the relative costs and benefits of one type of control or another, and I’m sure that at least a few wondered when ILaw became an economics class.  While it’s certainly not the place for a reopening of a long-settled debate, I would think that a summary of this current construction of the law (as well as alluding to the economics and law movement, illustrated with a little Posner) would not only help the audience understand what’s going on, but would also give the instructors a context within which to explain why articulating the importance of intangible benefits (c.f. freedom, speech)  is particularly difficult in the current environment.

    Alternatively, if this is a perspective that the organizers of ILaw have differences with, I think there are some obvious benefits to hearing them air their views in this context.  Either way, with the large number of attendees from fields other than the law, there are good reasons for touching upon this issue, since so much of the arguments around topics in this area are based upon this sort of analysis (or the inability to conduct such an analysis).

  • Copyright as an instrument of government policy, rather than a natural right.  Terry Fisher brought this idea out only at the close of the class, yet it’s a vitally important notion in American jurisprudence that is being systematically eroded.  This was pointed out in the readings, but the fact that Terry pointed it out again on the last day suggests that it’s worth commenting on a little bit within the class.  Copyright is probably the most pervasive and potent instrument of a policy that formally restricts freedom of speech, yet it is enshrined in law because the benefits of that restriction outweigh the costs.

    Again, this is an idea that is part of any discussion of the evolution of the case law in this area, so the legal professionals will not need this exposition.  But it’s a pretty key concept in the explanation of the directions that the law has taken in the past that people without legal training miss.  And the interesting conundra (word?) that emerge are generally illuminating, at least they have been for me – (e.g. White-Smith Music v. Apollo)

Pragmatists?

But I think the hardest thing for me to work through was the almost universal assertion by the members of the ILaw teaching team that they are pragmatists when it comes to internet law.  

Over the course of the week, it was perfectly clear that each member of the team brings a substantial amount of ideological baggage to the effort – and this baggage dramatically influences their work.   The participants clearly do not inhabit the same indeological niche, but the claim of pragmatism is pretty hard to defend, particularly in light of not only what this group has accomplished, but also how they have accomplished it.

The claim of pragmatism was disappointing, in fact.  The thing that I have found so inspiring about this group is the degree to which they hew to a very clear set of principles (e.g., freedom), and the extent to which they have the courage to pursue the consequences of the application of these principles in the realm of cyberlaw.

Perhaps what they really meant to say was that they were not dogmatic about their ideologies – that they are willing to employ what works, rather than insisting upon ideological purity.  

I hope so; the realm of cyberlaw has already shown us that the consequences of poorly considered policy emerge on “Internet time,” and careful, principled consideration of both the problems and the alternatives is exactly what is needed.   The good certainly can be the enemy of the perfect, and progress is only going to come with a certain amount of compromise.  But, as we have seen in this area more than once, it’s also important to know the limits of compromise – at some point, principles have to trump expediency.

Summation

So, it was a great week all in all – an exposure to a set of extraordinary teachers, expounding upon a set of topics that is intellectually challenging and immediately relevant, with a host of issues that forced each participant to think carefully about the “whys” of some of the positions taken in this field today.

2003 July 9

(entry last updated: 2003-07-09 17:30:51)

  • I found this site yesterday, but couldn’t find a good reason to cite the WebCaster Alliance – things are a little different today: Webcaster Alliance, Inc. Alleges RIAA Anticompetitive Conduct; also in the Washington Post: Net Radio Group Threatens To Sue RIAA [pdf]

  • You knew it was coming: Google cache raises copyright concerns

    Google offers publishers a simple way to opt out of its temporary archive, and scuffles have yet to erupt into open warfare or lawsuits. Still, Google’s cache links illustrate a slippery side of innovation on the Web, where cool new features that seem benign on the surface often carry unintended consequences.

    The issue is particularly relevant at Google, a company that prides itself on creativity and routinely floats trial balloons for new features and services. Its culture of innovation may become increasingly risky as Google, which draws millions of visitors to its site daily and redirects them to others through secretive search formulas, cements its position as one of the most popular and powerful companies on the Web.

    At the heart of Google’s caching dilemma lies a thorny legal problem involving a core Web technology: When is it acceptable to copy someone else’s Web page, even temporarily?

    One more challenge to the infamous 1995 CONTU White Paper that arguably established the policy that all online copies are "copies" in the eyes of copyright law.

  • Hmmm – so how does the educational exemption work, exactly, given this suit: Major Publishers File Copyright Infringement Suit Against Collegiate Copies. Collegiate Copies WWW site; as this Indiana University Bookstore page says: "Also, the primary source for course packets at IU; you’ll probably make at least one trip to Collegiate each semester." I suppose I’m going to have to track down the complaint.

  • Larry Lessig and Cory Doctorow point to what Cory describes as "1937 public-domain radio propaganda" – a 6.4 Mb MP3 of a radio show illustrating the public domain by "freeing" some classic characters and giving them something different to do (recall this cartoon?)

  • I keep forgetting to post this, even though I’ve been seeing the article on every newsstand – from BusinessWeek: Hollywood Heist:

    Will tinseltown let techies steal the show? [pdf]

    For Hollywood moguls, that script is more terrifying than anything they could ever put on the big screen. More and more, the first showings of the latest Julia or Mel flicks aren’t in just the local cineplex. They’re on KaZaA, Morpheus, or iMesh, Internet sites known mostly for music file-sharing but now snapping up pirated movies with remarkable ease. Within a few days of Keanu Reeves battling his first black-suited bad guy in theaters in The Matrix Reloaded, an estimated 200,000 folks had already taken in the action, according to an online rating agency, downloading the long-awaited sequel in their dens and dorms. New episodes of HBO’s hit Six Feet Under are on the Net, too, and you needn’t be a computer whiz to find them.

    It’s all too reminiscent of the monster that ate the music business. For a town that loves a good sequel, that’s one repeat performance Hollywood isn’t keen to produce.

    It’s a very extensive write up, with a host of supporting materials:

  • The Register runs down the state of online newspaper/news access in the UK. Note the suggestion that BBC.com is considering charging non-UK readers for content.

  • A different look at the copyright status of Happy Birthday from kuro5hin: Exposing the Happy Birthday story

2003 July 8

(entry last updated: 2003-07-08 17:35:38)

  • Today’s Senate Commerce Committee hearing on media consolidation, with its close focus on the Dixie Chicks boycott and the McCain questioning of Lewis Dickey of Cumulus Broadcasting, is making NPR this afternoon, so I expect to see ink tomorrow – hmmm, Blubster and online anonymity tools are the next story on All Things Considered — with Jonathan Zittrain’s dulcet tones emerging from my radio now <G>

  • More from Declan on anonymous P2P: P2P’s little secret

  • Slashdot on the New Yorker article about business method patents: The New Yorker on Business Process Patents

  • While Scott Rosenberg promises some comments on ILaw 2003 (how did we miss him? – I’ve added a link to my draft ILaw 2003 writeup/commentary), the other half of his posting is a nice take on the latest in media political reportage – and something to give Zack of the Dean Campaign heart!

  • Declan McCullagh: Piracy and peer-to-peer. A look at the countermeasures to the RIAA suits.

    News.com: Should file swappers have any expectation of privacy?

    Ian Clarke [of Freenet]: Everyone, including file swappers, should have the ability to communicate freely without someone looking over their shoulders. Free communication is essential to free thought, which is essential to democracy.

    Matt Oppenheim [of the RIAA]: An individual who illegally distributes music on a peer-to-peer network has less of an expectation of privacy than a bank robber wearing a mask when holding up a teller. And, just as the bank robber cannot be heard to complain when the guard pulls off his mask, an infringer on a P2P network cannot complain. The bank robber can at least claim that until his mask is pulled off, nobody knows who he is. In the case of an infringer on a P2P network, the (Internet service provider) knows exactly who the individual is and has typically told the user in advance in their terms of service that they will turn over information when they receive a subpoena.

  • From the NYTimes: How to Make a Sonic Puree From Pop Snippets [pdf]

    This mangled medley was not remixed by a mischievous D.J. Instead, the mismatched music was generated by new software. N.A.G., as the interactive program is called, works like a cross between Google, the Morpheus music file-sharing network and a Cuisinart kitchen appliance.

    It allows users to search for words – like “Presley” and “love” – in areas of the Internet where MP3 song files are, for the most part, illicitly swapped. But the program is not designed to play complete tunes. As N.A.G. retrieves song files labeled with the selected words, it slices off audio snippets and blends them into sonic collages.

    […] “N.A.G.” results can resemble coarser versions of “mash-ups,” recordings on which D.J.’s combine two musically related tunes to startling effect. A search for “Beethoven,” for instance, might yield a blend of the “Moonlight” Sonata, a techno remix of the Ninth Symphony and “Roll Over, Beethoven.” Or pick a sufficiently rare search term like “Norah” or “Ginuwine” and hear what sounds like a defective greatest-hits album.

    But surprises can occur when the program successfully merges musical material whose relationship is primarily linguistic, as when a search for the singer of “Beat It” produced a crosscultural patchwork by an unusual version of the Jackson 5: Michael, Janet, Alan, Wanda and Browne. And by running two searches in quick succession, users can forge imaginary duets between Toby Keith and the Dixie Chicks or another improbable pairing.

    Debra Singer, associate curator of contemporary art at the Whitney Museum of American Art in New York, said Mr. Freeman’s software turned anyone into a sample-crazed D.J. “The spirit of it is a sort of subversive populism,” she said.

  • A striking article on Milton’s Areopagita, a 1644 essay on free speech – an annotated online version

  • For anyone who wanted more details on what Reed Hundt had to say at ILaw, see this posting from David Weinberger from another event (SupraNova) where Reed spoke recently: [SN] Reed Hundt

  • This doesn’t happen often: an article from TechCentralStation that I recommend – Perfect Pitch is a discussion of the technology of music recording. Another illustration of one of the key points of The Audible Past: the notion of what constitutes a "good" recording is a carefully constructed artificiality that has emerged out of a extended trajectory of technological change and social convention. And, increasingly that technology is beoming accessible to more and more performers without having to go through the record companies for financing.

  • Today’s Tangled Web is all about WWW sites that offer concert downloads: U2BloodRedSky.com and LivePhish.com

  • From CNet, some newsmaking by the president of Grokster: Trade group to back P2P efforts

  • From CNet News: Court backs thumbnail image linking

    The 9th U.S. Circuit Court of Appeals’ decision is a partial win for defendant Arriba Soft–an image search engine now known as Ditto.com–in its case against photographer Leslie Kelly. Kelly sued Arriba Soft in April 1999 for copyright infringement when the company’s software had recorded miniatures, or thumbnails, and full sizes of Kelly’s digital photos and made them accessible via its search engine.

    The court ruled that use of thumbnail images in search engines is legal, confirming an earlier ruling by the same court from February 2002. But the court withdrew a previous decision on the display of full-size images, which it had deemed out of the bounds of fair use because it was likely to harm the market for Kelly’s work.

    Note also that the reason the court overturned the finding of the district court in the case of full-sized images was that these images were not a part of the plaintiff’s original complaint, not that the full sized images were found also to be fair use.

    For anyone who was confused by my writeup of Terry’s talk on the doctrines used to evaluate a claim of fair use under copyright, the opinion in this case is a very clear example of the application of the current doctrine.

  • The Boston Globe has some details on the emerging Roxio/Napster business plan: Napster founder developing new file-sharing technology [pdf]

    Regardless of whether the gambit works, it demonstrates that the now 22-year-old Fanning has moved beyond the service that made him a household name. Yet Fanning, who lives in the San Francisco Bay Area and declined to be interviewed, is still trying to shape the future of the music industry — this time by working with his onetime competitors.

    Fanning’s new program relies on audio fingerprinting that identifies every song being offered by users on a file-sharing network. As the user submits the song, it would be checked against a database at Fanning’s company to see whether it is copyrighted. If it is, the song couldn’t be distributed without payment.

    […] Fanning has been acting as a consultant for Roxio while also pursuing his new file-sharing venture independently. Record-company executives say Fanning has been making the rounds of the major labels in recent weeks, demonstrating his technology and urging them to invest in and endorse his system.

    If they do, he has told the labels, he will ask Kazaa and other leading peer-to-peer networks to sign on as well.

    ”It’s fantastic, but it only works if Kazaa goes along with it,” said a label executive who asked not to be named. He said his label was impressed with Fanning’s demonstration and is reviewing the plan.

  • Pursuant to Yochai’s discussion of peer-based production systems, this Slashdot article on the distributed translation efforts underway for the latest Harry Potter: Harry Potter in German, not Czech

2003 July 07

(entry last updated: 2003-07-07 18:27:25)

Back from ILaw, although I’m still workigh through a few thoughts. With luck, I’ll have something more to say as recap today or tonight. In the meantime, back to the news.

  • From CNet News: Sharman can’t squeeze antitrust claim

    Sharman Networks, the company behind the popular Kazaa file-swapping software, cannot pursue a suit accusing record labels and movie studios of antitrust violations, a federal judge has ruled.

    In the ruling [referring page], dated July 2, U.S. District Judge Stephen Wilson dismissed Sharman’s argument that major entertainment companies have colluded to drive potential online rivals out of business, saying the company lacks any standing to make such a claim. Sharman does not provide movies and music online but rather distributes software that allows individuals to swap digital files, the judge said.

  • From LawMeme: Patent Bending [pdf] in The New Yorker:

    All patents, of course, stifle competition. That’s why inventors like them. But business-method patents have an especially chilling effect, in that novel approaches to commerce can be ruled off-limits to others. What eBay was accused of copying was a concept, not a computer code. As James Boyle, a law professor at Duke, put it, "Under this logic, one could get a patent on the idea of fast food-not a different way to broil the burger but the idea of fast food itself."

    Although intellectual-property experts like Boyle have loudly criticized the State Street decision, Congress has shown little interest in doing anything about it. (In fact, lawmakers have proposed bills that would make things even worse, such as allowing sports "techniques" to be patented. Imagine pitchers paying a royalty every time they threw a forkball.) That has left the matter of business-method patents in the hands of patent judges and the staffers at the Patent Office-people who spend most of their time working with patent-seekers, and who are therefore more sympathetic to their interests than to the public’s. (Economists call this phenomenon "regulatory capture.") The office says on its Web site that its role is "to grant patents," but surely its role should be to distinguish between innovations that are worth patenting and those that are not.

    […] The new regime’s defenders insist that in today’s economy such vigilance is necessary: ideas are the source of our competitive strength. Fair enough. But you don’t compete by outlawing your competition.

  • Wired News has a writeup on the Illegal Art exhibition in San Francisco: Artists Just Wanna Be Free

  • One of my students came to my office with an e-mail from a friend who has been notified that the RIAA has sent an e-mail to MIT Network Administration including the following text:

    Because many ISPs have requested that we give them advance notice, I am writing to alert you to a forthcoming subpoena which will be issued pursuant to section 512(h) of the Digital Millenium Copyright Act (17 U.S.C. Sec. 512). The subpoena will request the name, address, telephone number, and e-mail adderss of a user, customer, or subscriber of your system or network who has infringed our members’ copyrighted sound recordings. For your information, that user was located that the following IP address: nn.nn.nn.nn on 6/27/2003 at 9:29 a.m. (EDT).

    This student received this notice from the living group network administration, whose records showed that the IP address had been assigned to the student’s computer at the time indicated.

    I am not aware of how MIT has acted in the face of these letters in the past (see this notice), but I cannot imagine that MIT is going to stand on principle (tragically) following the denial of the stay in the ongoing Verizon decision. I wonder how many subpoenas the RIAA is preparing….

  • From early last week, Julie Hilden’s take on the recent libarry filtering decision: A Recent Supreme Court Decision Allowing the Government to Force Public Libraries to Filter Users’ Internet Access Is Less Significant Than It Might At First Appear – a discussion of the filter litfing option and the notions in Breyer’s opinion.

  • Wired News has an article on Last.fm, a webcaster using collaborative filtering to set content. It would be interesting to know how US regulators would view this approach, in that webcasting on demand is more like a performance than a broadcast, with different fees.

  • I see that Donna worked on Copyfight this weekend – I’m afraid I just gave myself a rest, so I’m glad to point to her links: Quotable + Notable

  • Something to think about: New Anti-Piracy Checks On Terminator 2 DVD

    A recent reissue of the blockbuster Terminator 2 contains a DVD-ROM version of the movie with a new anti-piracy technique: 5-day viewing licenses issued over the Internet.

    The new digital rights management (DRM) system also looks up a PC’s Internet address–if the computer has a non-U.S. number, playback of the DVD-ROM will be prevented.

    The Web-checking system means that even if the DVD-ROM is copied, only one PC at a time around the world can play it back–bad news for DVD pirates located in Asia and elsewhere.

    And anyone thinking of copying the movie file from the DVD-ROM onto a hard drive and sharing it online can forget it: The file is only playable from a valid DVD-ROM disc–again, only after online verification.

    Digital Envoy, a provider of rights management technology, and SyncCast, which specializes in media streaming, worked together to create the digital rights management (DRM) system.

  • Read this one on the filght back from SF: Searching for a Dial Tone in Africa [pdf]; Slashdot discussion: VoIP Booming in Africa

  • From Slashdot: File Swappers to RIAA: Download This! [pdf]

    The Recording Industry Association of America’s announcement on June 25 that it will start tracking down and suing users of file-sharing programs has yet to spook people, say developers of these applications.

    “Forget about it, dude — even genocidal litigation can’t stop file sharers,” said Wayne Rosso, president of Grokster, one of several systems that allow users to upload and download files — many of which are unauthorized MP3 copies of songs published by the RIAA’s member companies. Rosso said file-trading activity among Grokster users has increased by 10 percent in the past few days. Morpheus, another file-trading program, has seen similar growth.

    From the comments, I learn of the existence of PeerGuardian, a program that apparently is used to block TCP/IP access to a machine from machines within certain IP address blocks – a kind of blackhole program, with IP addresses submitted by members of the community. Opportunity for abuse, I agree, but an interesting response.

  • Today’s Boston Globe has two articles, representative of the continuing escalation of the P2P music wars: an article on file spoofing, Small companies are big in battle against Net piracy [pdf] and Hiawatha Bray on Freenet, The music industry might want to listen to this swappers’ deal [pdf]

The Wrap Session – 2003 July 4

(entry last updated: 2003-07-04 18:38:18)

Charlie will facilitate; the group will respond

Charlie: Can we think about this week in self-reflective terms in the hopes that we can crystallize a question. It’s been an interesting week; I started out to the left of Terry, and I have ended it as an RIAA helper. So I have a question for Terry: The tension that I found myself in has to do with this position withrespect to digital music and I found myself particularly faced with this tension as I considered Terry’s proposal. Would we like to see a digital music world in which people buy their music through iTunes and like delivery services? If we’re not going to displace the copyright system, it’s looking like iTunes is the direction music distribution will take. Would Terry say no? – because his system is better. Or, if yes – will an iTune-like model thrive for as long as free music is available? The split between free and for-pay exists; how will the business model evolve in the face of this split. A balance? And, if so, what sort of balance and how will it be maintained?

Is the fight between copyright and the Net going to lead to the death of one or the other? And can we risk the crash that will come, whoever crashes?

Terry: A brief response. This book I’m writing has two parts – how we got to the problem; and then how we get out. I have three possible routes out, all of which are better than where we are now, while the one we saw in class is my most extreme set of changes. So spoofing and other technological tricks can lead to a host of iTunes variants. The bottom line would be a lot better than we have now, but it would have three disadvantages – 1) you would retain the current music industry structure/concentration of the industry; 2) it preserves the distortions that emerge with pricing above marginal cost – a deadweight loss to society; 3) the iTunes marketing systems is likely to generate some sort of constraints upon the product – usability, copying. It would fail to fully realize the opportunity of the internet.

Now, you might think it’s a nice picture, but the problems in the interim means that the legislative reactions will limit the internet as a whole. But, I believe that there are win-wins in this area that will preserve the structures of the internet that we wish to preserve.

Terry, got a question to pose to one of the others? Terry: Here’s a question that puzzles me – a zoned internet or an unzoned internet. Should we promote/acquiese to it, or oppose it?

Z: It’s a question to me too – zoning seems antithetical to the net, but the jurisdiction/constitutional issues suggest that governments ought to be able to exert the controls that we associate with governments and their instruments. Zoning breaks the libertarian gotcha of the internet; for myself, since most of the internet is speech, I think it’s better to have more unfettered speech than not.

It is a hard question, leading to my question to Larry: what’s the right political process through with we should make the decisions about the sort of internet that we want? You’ve tried a bunch of things, up to a constitutional convention for the internet – what should we be using to effect change.

Larry: That’s a great question. The thing that’s surprised me in the last year is the extent to which we have come to realize that all significant politics are things that are broadcast – w/o CBS or the NYTimes, it didn’t really happen/isn’t really valid.

The blog space seems to have inverted that notion; the notion of a centralized space within which things happen politically is just a bad idea – it need to be distributed and happening at the individual level – exposure to the responsibility of making good and bad arguments, and responding in this space. A conversation from the bottom up on these perspectives, increasing the appreciation of the implications of these issues and to see an invigorated process in the political arena.

Larry’s question: Someone ask Yochai a question.

Q: Europe is grappling with the question of copyright and databases. Could you comment on database production under copyright?

Yochai: Mid-1990s the EU creates IP in raw data – 5 years earlier, the Supreme Court says facts cannot be protected by copyright. Since then, the database industry has petitioned Congress repeatedly for this same right. The basic economics of database protection are similar to those of copyright; the costs to scientific research would be particularly large – a strong reason to resist. The reality of the strong database market in the US in the face of the EU decision suggests that there isn’t a strong economic advantage as the EU thought when they offered the protection – the advantage has not resulted in a change in the position of the EU industry in databases

I mentioned it here as one of the many components of the enclosure movement in information. The fallacy that stronger property rights is needed in this area is gaining increasing momentum in the political process, and this is one instance among many in which there is hope – it continues to fail in the US. moreover, it’s a possible example of why the enclosure movement is an error.

Q: One thing that hasn’t really been addressed but is really a concern has been the fact that we are forcing groups to blatantly ignore the law – and we are forcing them into becoming criminals, rather than achieving interdiction and eroding real belief in the law – a culture of lawlessness. Comments?

Larry: There are many contexts in which the Prohibition mentality leads to people who routinely break the law. Yet we rarely account for the consequences of this sort of lawless culture. I would say that this is what Fred was talking about when he spoke of the collateral damage of this policies.

This view leads to a need for a stronger consideration of the things these laws are actually accomplishing, rather than what they are claimed to achieve, and to ask ourselves if the consequences are worth the aims?

Charlie: Teaching the law is pretty hard when everyone in your class is a lawbreaker, especially when you are trying to instill the ethics underlying as well as the appreciation of the law.

Terry: An anecdote – in the summer of 2000, when Napster had been declared illegal although not yet shut down. I gave a talk in Brazil to a set of lawyers and judges, on music. I begin to describe the system – how many people here have used Napster? and 50% raised their hands. Testament to the speed of deployment and the prevalence in a room full of judges and lawyers

At the time the Betamax case was contested, two Supreme Court justices owned VCRs

Q: For Yochai, can you speak to the political effect of the internet – how the internet contributes to the regional alliances; how do you relate your cuture democracy to political mobilization? Particularly for poor neighborhoods?

Yochai: There are three questions in your first question. The first is the digital divide question; the question of when the necessary precondition for capturing any of the benefits of the internet in political space requires capital expenditure to provide access, does this exclude the poor. Second, does decentralized internetworking provide opportunities for political mobilization across geography – an easy question, yes – the marches against the Iraq war/smartmobs/etc. So, the first question returns, into giving access to this instrument.

The digital divide means, particularly for developing economies, that with new instruments it should be possible to overcome this barrier.

The third problem is the extent to which the internet fragments local communities in favor of others, in other geographic contexts (I think I’m off track here).

Charlie: Here’s something different – what were your academic interests that led you into this area?

Jonathan: It was the internet that brought me into the law. At age 12, responsible for moderating a forum at Compuserve (TI-994a Forum) and having so much fun, exchanging ideas, etc. that I realized that how these communities justly governed themselves let me to the law

Larry: Julian Dibbell’s The Rape in Cyberspace – the power of words to create damage – a place where people don’t really understand their politics. Teaching in this area meant that people had to think rather than parrot what they were suypposed to say

Yochai: Market structures and freedom were my concern; I had been looking in the past, and I discovered that it was actually going on now in cyberspace

Terry: Property rights have been my interest; the subject that implicated power; I have been teaching it for 19 years. Then gradually, the impulse to follow power led me to IP (for the last 10 years) and the internet became the hot topic in internet. Less than Charlie, Jonathan and probably Larry, this is really not my zone – I do IP.

Charlie: I took a course on the Univac in 1958; then not much until Jonathan turned up in a class of mine, and I had a grant to buy Mac Quadras which were then internetworked for a class project. The use of the internet as a teaching context.

Z: Two groups – one group generally asks is the Internet going to be a US centric space;

Charlie: Over here I’ve got some – Who’s going to take your ideas and run with them/ Is it possible to govern the internet? Is the US going to run the internet?

Larry: The fact it that we are already neing governed – the question is whether we are going to take responsible/reflective consideration of the nature of this governence.

Q: Is there a possiblity of a global internet law?

Larry: it’s possible, we may find some common principles, but there are real distinctions among locations that mean we will never see a true global law

Z: I worry that the reason so much of the Internet was a success because the key decisions took place in the back rooms in a different context. As it becomes a public game, the true amateurs will be driven out (as in those who do it for the love of it), leaving us in a muddle of competing and disruptive interests.

Larry: Would you rather developing countries used free software or pirated MS software? Of course, freedom means using free, while tying to network effects suggests that Microsoft will want you to pirate (although they can’t acknowledge this publicly)

Yochai: What are the politics of this set of movements? Terry, your work clearly looks progressive – economic based directives toward freedom; Yochai and Larry vacillate into and out of libertarian perspectives.

My own perspective is that I am a pragmatist. Given the historical facts, the law, the technology, what can be woven together to find a way to a certain moral vision; the political methods, however, are not so sharply defined in this area. It’s a context specific set of operational mechanics – whatever works

Terry: This is a crucial theme, and I have a set of related questions here. What is the role of the state in this? I agree with Yochai that pragmatism is what is necessary.

“The market assigns value to IP objects. How does Terry’s mechanism accomodate this equity issue?” The narrow answer is that the mechanism is based on use, so it works on popularity.

There is an analytical error here, too. Copyright system is a massive intervention of government power into the way that people would otherwise behave. This means that the market is grossly manipulated by the state – it is not a natural instrument. So it’s not a choice between non-state natural markets and a bureaucracy – both regimes are government interventions.

Larry: A smaller question – your regime is like the current regime – payment on the number of times something is consumed. But isn’t it odd that all songs cost 99 cents; aren’t the Beatles worth more than Zittrain’s – what about setting up this sort of market?

Terry: All these markets are imperfect in that respect

Larry: Why wouldn’t you do it if you could avoid the transactions costs?

Terry: It appears that this is unneccessary today – already the current industry could accomplish this sort of thing, meaning that there is no reason to do this – temporal price discriminate is not the same as discrimination among different products.

Elizabeth: I’ve been buying new and used CDs on eBay; which would seem to yield this sort of market.

Terry: I don’t know much about this, but I would imagine that there is another economic factor in play here – scarcity. That generator of inequality would have an effect. It would be interesting to examine the behavior in this market over time.

Charlie: A question – Could the iTunes model be used to bring forward out of print works? My answer would be that this might be the basis for a two tiered market – where out of print works appear in the free nets, and the current material appears in the for pay market.

Larry: Let’s try compulsory licenses – suppose there is a compulsory rate for out of print work. It might generate a couple of different things – a market in recordings (like the Deadhead tapes) as well as a set of incentives to lead to rereleases in the face of demand

Z: Reflect upon the academic enterprize in which you are working – is it really the case that the internet is different? And I note that there is a lot of advocacy in this presentation. Will internet law be here in the future?

Larry: in the 1940s there were two farmers who were near an air force base whose chickens kept dying of startlement when the planes flew over. In order to try to deal with this, they sought to bring suit using the claim of trespass. Justice Douglas, in the Supreme Court, wipes this right out in a single paragraph – “common sense revolts” at this idea of ownership

What attracts me is that the adjustment to new technologies in this space is being queered by the efforts of strong interests – a lind of land grab. It’s necessary to point out that this is going on – so that a decision can be more sensibly be made in the political sphere.

Z: So is that why your life is an Oliver Stone conspiracy movie?

Charlie: I believe that internet law is a real thing – there are many things going on here that are all prevasive, and the integrative nature of this arena means that there is real changes that have to be considered carefully and in the face of real potential novelty

Z: For now – it may all be settled in 15 years

Yochai: I’m not sure that’s an important question. When asked what I do, I give a generic meta description that I believe will always remain a problem – the internet is a context within which we work now.

Terry: Thanks to Robyn and Larry for everything. This is a collaborative program that has evolved over the last 5 incarnations of the program – but the degree of change between the last one and this one is a very large one, and Larry is responsible for that transition – a reflection of his perspective and structure that he sees. Thanks, again!

(close)

A few pictures

(entry last updated: 2003-07-04 21:37:47)

Sorry – editing over SSH is a little painful, so I only offer up these three bits from last night (I promise to use thumbnails when I get home).

Yochai’s Session – Speech

(entry last updated: 2003-07-04 15:40:11)

An overview and a mapping of the thoughts this week onto ideas of freedom and morality. Here’s a leading pamphleteer of the 17th century – an icon of freedom in the print era who effected political ideas that led to parliamentary democracy in the UK. He represents an ideal of freedom of speech, exercised through the use of a liberating technology – print. I’m going to use him as a central illustration of the idea of freedom of speech and political freedom – as well as the question of how much and anarcy – John Littler? Littlebon? Littleburn?

So, law and speech through formal censorship. By identifying certain things that people want to say but government’s don’t like – In the US, smut; in europe Nazism; in other places, political opposition.

Now, law is not the only way we regulate speech. Consider Lady Chatterly’s Lover – an appropriate subject of an order to confiscate because the book was obscene. Since the early 1970s, obscenity has become something that has to be really bad; and only then is it bannable. However, there are plenty of things that are distressing to some, without being obscenity.

Other modalities come to use – brown paper covers, or location of the material in hard to reach places of a store. Not a legal hurdle, but one nevertheless. Add to this, norms – the shame of having to ask where to find the smut in the store. Lastly, the market: here we see pervasive violence, but not a lot of sex/nudity – what forms of material is allowed to have in generally available media is somewhat influenced by markets (advertising,etc)

Radio doesn’t require a brown label. Thus, radio has been cleaned in law – FCC v Pacifica Radio – a nonprofit station aired a social critique by George Carlin (the seven dirty words skit). This was considered reason enough to impose a penalty by the FCC, and it was upheld by the FCC – plays the seven words skit – actually a different skit, but equally relevant.

The Supreme Court upheld on the basis of the need to protect children. A management of public cultural spaces to clean up things

Leading eventually to the Time cyberporn cover – the Marty Rimm scare. Leading to the CDA; struck down. The Children Online Protection Act; ambiguous results so far; and filtering requirements (CIPA).

One of the responses at the basic political level could potentially have been a claim that the problem is an exaggreration. However, the communication revolution has made things more visible than they used to be. It is, in fact, pretty easy to find these things.

Let’s return to the Nuremberg files; this is speech; this is debate. It’s an easy system, for those with all sorts of views, to create political communities; to undertake actions. (It’s ugly and horrifying as well)

So – is this a good thing?

A response: the simplistic answer is that this should be permitted; it’s distasteful to many, yet free speech is a necessary thing, even with its ugliness. I like that we can publish what we like, offensive or not.

Another: We are getting back to the point from the last session. I think that being able to present Nazism should be allowed; but this Nuremberg stuff is a different thing – this is intimidation – the threat of action is clear – and it’s taking away someone else’s rights to do what they want.

A distinction is drawn between a photo of a woman entering an identifiable car versus a graphic photo of an aborted fetus and the 9/11 attack, claiming a connection between the two. The first is not speech – the second is free speech to defend.

Yochai: The Nuremberg Files site lost, and what they did is to change the context of the data – the data is not changed. It’s the context within which the data is presented that seems to be the thing that leads to a distinction in our minds. Is this still a good technololgy?

Andrew: We have to acknowledge the dark side of technology developments – they exist and we have to consider them in the cost/benefit balance

Another: This picture of the woman entering her car; this is not political or commercial speech – it’s something else.

Some allusions to the texas anti-sodomy law

Yochai: A very heavy weight given to the privacy of the home, and the privacy of individual decision making – this would support deciding to get an abortion, but little tothe issue of the exploitation of the notion of public spaces as we see here.

One of the CDA fallouts was the introduction of the notion of an age barrier, via the need for credit card information. What does this do? First, it regulates access, limiting it to adults. Second, if you are a free site, setting up this sort of check is expensive, so it would lead to a market barrier to operating. Third, it increases the opportunity for social surveillance, putting you in a circumstance where the norms of the community might be brought to bear onto you.

Let’s turn to technology as an instrument of control. Maybe we should use law to refine the technology in a way that we can regulate in this space. So, we get the V-chip, CIPA filter requirements, and filtering in Saudi Arabia, China and elsewhere. The Supreme Court says filters are not an onerous burden, so it’s ok. Let;s hear from someone who’s learned a lot about this.

Jonathan: So i have already spokenn some about this; lets talk in more detail. The isu.net.sa site is the ISP that sits astride the pipeline that connects the country to the rest of the internet. The site is somewhat open about the doing of this – use of SmartFilter, meaning that they don’t know what the entire list is. What they did, was give them two weeks to get a proxy server in SA so he could experience the SA browser experience. See also attorneygeneral.gov as another place to recommend sites to filter.

The Saudi Arabia game is more about appearance rather than actual; China is more the opposite (more bite rather than bark)

Chia does something different – individual routers are programmed to drop packets to specific sites. This is both more sophisticated and more crude because they must block an entire WWW page. So, for example, they blocked Google.com – diverted to other sites.

An uproar – so now what happens is that searches that they don’t like means that there is a sudden loss of connection for about 20 minutes. Does it work – not perfectly, but small fences can constrain large mammals.

Yochai: So, we reach the point of asking how much freedom do we want – a political discussion

There are other ways of regulation – so called benign regulation that is looking at some other objective, but ends up restricting speech. Copyright, for example, is a limit on speech, in the interest of getting more creative speech. Trademark, another restriction – certain expression cannot be used (e.g., “freedom of expression” is purportedly trademarked). Spectrum allocation can also be a restriction on speech; standard setting is also a kind of restriction – we agree to speak in a certain fashion.

These benign regulation cascade throughout the space we have been working this week. In the Market: derivative works, low power FM, NET act. Laws that are aimed at markets. For example: Here’s a site called the Free Republic news forum – a slashdot for a certain political bent. Seems democratic

(Larry Injects the TM listing for Freedom of Expression – owned by Kembrew McLeod – in the form of a typed drawing)

The NYTimes and the Washington Post say that this site infringed copyright when the text of article were reproduced in the “slashdot-like” article – and won. So the argument is that the archived story of the Washington Post is likely to be worth more than giving a group the opportunity to construct a discussion around the article.

Q: How is this different than a movie class that can’t afford to pay the ticket price to see a new movie?

A good question: the courts have found in a similar case that fair use does not mean you get a chance to make the most perfect copy – copying video crudely is potentially ok, but grabbing an object in commerce is not allowed.

Our complicated metaphor for IP makes this a difficult line to draw.

So, we get market-forcing law. For example, low power FM. The technical staff of the FCC determined that, because of the nature of the current technology, it was possible to add a large number of low power FM broadcasting without a loss to the commercial broadcasters. A local content channel for FM, essentially. Within a few months, there were a thousand applications to set up these small stations. Congress passed an act that set standards that made it expensive to do, plus took away the FCC ability to act in this specific area. So, again, not exactly censorship, but with consequences that limit freedom of speech.

We also get technology-forcing law as well. The DMCA, eBook, 2600; we also have the CBDTPA/Fritz chip; Hatch’s vigilante capitalism; and HDTV as the primary appliance instead of an OWL node/broadband deployment.

So, we get to see more pixels, but in only a limited number of contexts – vs. getting more sources.

So we get pushback. From the market: WiFi, KaZAA, Google, and IBM & Red Hat. Pushback from the technology: WiFI, KaZaA, WWW, Freenet,…

So, what are the values at stake? (1) Political Democratic Discourse. There have been critques of mass media and its effects on democracy for a long time – especially market driven media. One effect can be called the Berlusconi effect – power through aggregation of media; the other the Baywatch effect – better to make money than to support political discourse. The money effect on this industry, means that there is a cycle of money and political access that leads to a possible “Bloomberg effect” – campaign finance issues.

What effect does the internet have upon this situation? (Worf’s “we missed” -and- Dangerous Squid’s Teletubbies/Dubya bit)

The “fuck the draft” – one man’s vulgarity is another man’s lyric (Harlin, US supreme court)

With the internet, an open and neutral network, you get other perspectives – democracynet.org – a platform for a kind of transparency in political dialog that is otherwise unavailable in the commercial media.

Anther area – cultural democracy/semiotic democracy. How does the structure of the means with which we construct our culture effect the content of that culture – the Phantom Edit story. (Gone with the Clownz?) (The pornographic anime version of star wars, with some sort of remix/reversioning – it didn’t go over any better this year than last, IMHO)

So, Terry – cultural democracy?

Terry: So, it’s awkward to use this limited clip as a premise for semiotic democracy – ugly, unfunny and offensive – yet it is suggestive of the good things that I would like to see go forward.

A firm will be distributing soon a combination of hardware, software and metadata that will allow the user to modify the content on the fly – set the sex, violence, language sliders and then the content is edited on the fly – you are making a derivative work, on your own, in the framework of this technology. A kind of semiotic democracy – a way to influence. And there are much more powerful implications there.

The Phantom Edit, a VHS tape that was essentially an extraction of Jarjar and a limiting of the childish feature of the infact Darth Vader. This should now be possible to do within the context of the technology suggested above.

IOW, giving people a chance for creative engagement in this sort of effort, improves our condition. Moreover, it increases the diversity of the available cultural object, enriching the cultural space. Finally, it leads to a kind of collective cultural development, leadig perhaps to a shared cultural construction.

Yochai: Possibility and Challenge

This is a moment of both possibility amd challenge. Industrialization of information production has become a steady theme of our development. This increases the capital cost of participation in this activity. The internet technology has reversed something of this trend – now the desktop is all it takes to participate. So, we get radical decentralization of information and content creation and delivery. Moreover, there has been an increase in non-market behavior as the basis for a number of actions in the information and content arena. And we get a freedom from many regimes of both private and public censorship.

Given these developemnts, will we run with it, or will we retreat from it? A key opportunity is the development and sustenance of an information commons – a core cluster of resources that can be employed by everyone as a basis for conducting communication in effective ways.

We’ve talked about the physical layer – but less about the notion of a government funded interstate highway system in this space; at a logical layer, we spoke of the need to change some laws, as well as promoting more freedom in software; and at the content layer we need to stop the enclosure movement; and we need to develop an intellectual structure that helps us better to defend these development by being able to articulate more clearly what is at stake. (Missed the infrastructure point) And we need to work on the development of social practices that support this. And finally, what are the politics of freedom in the commons? How does the necessary political thinking emerge to support this so that we can develop this progress more thoroughly.

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