A Question of Intent

So, a new test of the “inducement” theory of secondary copyright infringement? After all, the fact that Wordscraper doesn’t make it impossible for users to mimic the classic Scrabble board may be enough — especially if there’s a provable “intent:” On Facebook, an 11-Letter Synonym for Scrabulous Turns Out to Be Wordscraper

People who were addicted to playing Scrabulous on Facebook have migrated by the thousands to Wordscraper, a Scrabble-like game created by the two brothers who built Scrabulous, Rajat and Jayant Agarwalla. Last week the brothers removed Scrabulous from Facebook.com for North American users because of a lawsuit from Hasbro, which owns the North American rights to Scrabble.

Unfortunately for Hasbro, players are not universally flocking to Hasbro’s official Scrabble game. Instead thousands are downloading Wordscraper, which has been available on Facebook since January but attracted little attention until Scrabulous shut down, and heading to their old favorite, Scrabulous, on the game’s independent Web site at www.scrabulous.com. Wordscraper had about 80,000 daily users on Facebook as of Sunday night and the Web site Scrabulous.com had thousands of players online on Sunday.

Hasbro’s official version of Scrabble on Facebook, meanwhile, has registered about 91,000 registered users, while a version from Mattel, which owns the rights to Scrabble outside of North America, has less than 15,000.

Unlike Scrabulous, which exactly mimics a Scrabble board, Wordscraper lets players pick a board size and put high-scoring spaces wherever they like — meaning that they can, if they choose, create an exact replica of a Scrabble board.

Open Cellphone Networks?

Well, baby steps, maybe. There’s still a long way to go: Applications Spur Carriers to Relax Grip on Cellphones

Consumers have long been frustrated with how much control carriers — AT&T, Verizon Wireless, Sprint and the like — have exerted over what they could download to their mobile phones. But in the last nine months, carriers, software developers and cellphone makers have embraced a new attitude of openness toward consumers.

[…] But the pressure on AT&T is also coming from another direction: Apple, its iPhone partner. AT&T has no control over the applications downloaded to the iPhones, which AT&T offers exclusively. But the proliferation of new applications and the realization that they only make cellphones more popular has convinced executives there that they need to give consumers more freedom.

The industry, of course, has selfish reasons for promoting openness. Applications spur the use of higher-priced wireless data plans and the purchase of more expensive smartphones. “What is most important for us is to have a customer sign up for a plan,” said Ralph de la Vega, who is in charge of AT&T’s wireless unit. “We think we can have multiple ways to make money.”

“Unreasonable Search and Seizure”

The fourth amendment? Fugeddaboutit! Travelers’ Laptops May Be Detained At Border (pdf)

Federal agents may take a traveler’s laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

Also, officials may share copies of the laptop’s contents with other agencies and private entities for language translation, data decryption or other reasons, according to the policies, dated July 16 and issued by two DHS agencies, U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement.

“The policies . . . are truly alarming,” said Sen. Russell Feingold (D-Wis.), who is probing the government’s border search practices. He said he intends to introduce legislation soon that would require reasonable suspicion for border searches, as well as prohibit profiling on race, religion or national origin.

[…] The policies cover “any device capable of storing information in digital or analog form,” including hard drives, flash drives, cellphones, iPods, pagers, beepers, and video and audio tapes. They also cover “all papers and other written documentation,” including books, pamphlets and “written materials commonly referred to as ‘pocket trash’ or ‘pocket litter.’ ”

Might as well save it for the historical record here:

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It’s Official

With all the accompanying posturing and ideological positioning one might expect from a 3-2 decision — enjoy! FCC orders Comcast to modify network management – Yahoo News (pdf)

Comcast Corp has been ordered to change how it manages its broadband network after U.S. communications regulators concluded some of its tactics unreasonably restrict Internet users who share movies and other material.

  • Press release:
  • Martin Statement:

    While Comcast claimed its intent was to manage congestion, they [sic] evidence told a different story:

    • Contrary to Comcast’s claims, they blocked customers who were using very little bandwidth simply because they were using a disfavored application;
    • Contrary to Comcast’s claims, they did not affect customers using an extraordinary amount of bandwidth even during periods of peak network congestion as long as he wasn’t using a disfavored application;
    • Contrary to Comcast’s claims, they delayed and blocked customers using a disfavored application even when there was no network congestion;
    • Contrary to Comcast’s claims, the activity extended to regions much larger than where it claimed congestion occurred.

    In short, they were not simply managing their network; they had arbitrarily picked an application and blocked their subscribers’ access to it.

  • Copps Statement:

    Let’s be clear about what today’s Order does and does not accomplish. We do recognize that unreasonably impeding the performance of an Internet application (like peer-to-peer file sharing)—and not just outright blocking a particular website or program—violates the FCC’s Internet policies. We do require that Internet providers inform their customers when they make important technical decisions that change how the Internet works. And we do give consumers who feel their Internet experience is being unreasonably interfered with a right to seek help at the Commission. We do not, however, prohibit carriers from reasonably managing their networks. And we do not prevent engineers—either now or in the future—from coming up with new and better ways to serve their customers.

  • Adelstein Statement

    Going forward, this decision sets out a marker, making clear to providers that discriminatory network management practices must be carefully tailored and not unreasonable. As providers craft their network management practices, the Order sends a strong signal about the importance of engaging industry standard setting bodies, such as the Internet Engineering Task Force, the Internet Architecture Board, and the Internet Society, which offer the best forum for resolving network management issues. It is certainly preferable for facilities-based providers and applications providers to work collaboratively, in an open and transparent manner, without the need for governmental intervention. To the extent that engineers can work out these issues among themselves, it obviates the need for Commission action. I am pleased such an effort is now underway among these engineering bodies to tackle the issues raised by peer-to-peer traffic, and that Comcast is an active participant in those discussions. The Order makes clear, though, that the Commission will not abdicate its role in preserving and promoting the open and interconnected nature of the Internet. That open platform has been the basis for unprecedented innovation and I am confident that the approach we take today will, in the end, lead to the greatest opportunities for continued innovation.

  • Tate Statement:

    As my colleagues on the Commission know, a long-time concern of mine has been fighting the proliferation of online child pornography and unauthorized illegal downloads of creative content. In fact, next week I will be traveling to Tennessee to attend the launch of a partnership between Connected Nation and iKeepSafe. Connected Nation provides computers to children across the state of Tennessee and iKeepSafe provides DVDs and other educational materials to teach children about the risks associated with internet use and how they can protect themselves online – yet another example of a positive market and industry driven public-private partnership to address a very real problem: child online safety.

    While I may be the only Commissioner raising these concerns, certainly many Attorneys General, the National Coalition for Missing and Exploited Children and even leaders in other countries share these concerns. If the Commission interferes with the ISPs ability to manage their networks by imposing a strict legal standard, will such regulation have a freezing effect on the fight against illegal content? By requiring ISPs to “carefully tailor” their network management practices, I am concerned that we will potentially be stripping them of the important tools they use—and we need– to purge their platforms of illegal content which negatively impacts every type of intellectual property, from software to pharmaceuticals to of course, songwriters and motion pictures.

  • McDowell Statement

    For the first time, today our government is choosing regulation over collaboration when it comes to Internet governance. The majority has thrust politicians and bureaucrats into engineering decisions. It will be interesting to see how the FCC will handle its newly created power because, as an institution, we are incapable of deciding any issue in the nanoseconds of Internet time. Furthermore, asking our government to make these decisions will mean that every two to four years the ground rules could change depending on election results. Internet engineers will find it difficult, if not impossible, to operate in a climate like that. Today’s action is raising many questions across the globe. Is the next step for the FCC to mandate that network owners must ask the government for permission before serving their customers by managing surges of information flow? As a result of today’s actions, Internet lawyers around the country are likely advising their clients to do just that. Will the FCC be able to handle that case load? Will other countries like China follow suit and be able to regulate American companies’ network management practices, with effects that could be felt here? How do we know where to draw the line given that the Internet is an interconnected global network of networks? Given the Internet’s interconnectivity, are we now starting a global race to the lowest common denominator of maximum government regulation all in the name, ironically, of Internet freedom? Keep in mind that societies that regulate the Internet less tend to be more democratic, while regimes that regulate it more tend to be less democratic.

    I am being asked these and many other questions, and I don’t have answers to them. No one does. But two things are for sure, this debate will continue, and the FCC has generated more questions than it has answered.

    […] So today, for the first time in Internet history, we say “goodbye” to the era of collaboration that served the Internet community and consumers so well for so long; and we say “hello” to unneeded regulation and all of its unintended consequences. Accordingly, I respectfully dissent.

“Warning — Thar Be Trolls!”

The NYTimes is offering up this “preview” from their Sunday magazine today. While I think everyone who’s been online knows about trolls, I’m not sure what it is that the NYTimes wants us to take away from this article. Proof that there are jerks in the world? That one needs to learn to get over the existence of jerks? Or, more insidiously, that someone needs to “fix” the Internet so jerks can’t do jerkish things (an argument that our society has already swallowed wholesale when it comes to other things)?

On the other hand, like my reaction when I get an innovative phishing email, it’s always useful to keep up with the latest notions in troll amusement:

Malwebolence – The World of Web Trolling

In the late 1980s, Internet users adopted the word “troll” to denote someone who intentionally disrupts online communities. Early trolling was relatively innocuous, taking place inside of small, single-topic Usenet groups. The trolls employed what the M.I.T. professor Judith Donath calls a “pseudo-naïve” tactic, asking stupid questions and seeing who would rise to the bait. The game was to find out who would see through this stereotypical newbie behavior, and who would fall for it. As one guide to trolldom puts it, “If you don’t fall for the joke, you get to be in on it.”

Today the Internet is much more than esoteric discussion forums. It is a mass medium for defining who we are to ourselves and to others. Teenagers groom their MySpace profiles as intensely as their hair; escapists clock 50-hour weeks in virtual worlds, accumulating gold for their online avatars. Anyone seeking work or love can expect to be Googled. As our emotional investment in the Internet has grown, the stakes for trolling — for provoking strangers online — have risen. Trolling has evolved from ironic solo skit to vicious group hunt.

“Quick, lock up your (insert a class of valuables here)!!”

Mostly, I have to confess that I just return to this Wondermark cartoon (#338), which I think really sums it all up — In which Marcus gets the Inside Scoop