Tuesday, February 28, 2006

Should Programmers and Content Contributors Be Licensed?

The blog directory is not showing all of the older entries. Here are the older entries:

Student Profiles, Teacher Blogs and Schools

Parsing Grownups and Kids on the Web: COPA: The Child Online Protection Act of 1998

Sensible Policies to Solve the Spam Problem

A Simple Way to Reduce Identity Theft

Log on Major Internet Issues

Blogs and campaign finance reform

Trademark Dilution Act of 2005

Inducing infringement of Copyrights Act

Jonathan Zittrain wrote a long article, “Without a Net: The Internet is vulnerable to viruses so lethal that they could gravely damage the online world—unless we upgrade law and technology now” in Legal Affairs, Jan-Feb. 2006. The main threat is a new destructive worm spreading catastrophically before anti-virus companies can catch it. Zittrain discusses the idea of licensing programmers and licensing the software that they create – an anathema to libertarians, except that this would be done by software vendors and distributors—which could expose contributors to business prejudices and to turf protection. An author whose software included a virus would lose his license. (Could this concept apply to general content creators like me?) He discusses concepts like end-to-end neutrality, which places more responsibility on untrained endusers than is desirable, and encouraging ISPs to take more responsibility for quarantining zombies themselves, which they are often loath to do.

Monday, February 27, 2006

"Self-promotion" and the Net: the media concerns mount

In early 2006 the media continues to make sensational reports about the dangers to high school and college students about misusing social networking websites (like myspace.com and facebook.com), and career counselors have joined the chorus with an increase in stories alleging that employers now routinely screen applicants and perhaps current associates for attention-drawing behaviors on the web.

While over the first decade or so of the Web’s availability to the public there has been a freewheeling, anything-goes culture, suddenly there is this backlash, with suggestions that unsupervised self-promotion on the Web is unprofessional and can endanger others, on the school campus, on the job, or even within the family. I am reminded of the rhetorical use of the phrase “self-promoting queer” in Clive Barker’s 1996 novel Sacrament (it would make a great movie), and suddenly excessive self advertising has become a pejorative. In an early novel, the massive fantasy Imajica (1991) (again, why isn’t this a movie yet?), Barker had developed the idea of “reconciliation,” where individuals and communities that have been living somewhat happily when separated cause unpredictable conflicts when technology (or magic) brings them back into ready contact. His idea does forecast what is happening with the Internet. His genius was communicating that the mechanics of radical cultural change extend way beyond the specific examples he may have learned from the GLBT communities.

It’s important to parse all of the concerns. Many things that are good are dangerous to immature people until they learn to use them properly. We don’t allow minors to drive cars until they are mature enough, and we should have a similar approach to their use of a global public space, the Internet. To their credit, sites like myspace.com are developing terms of use and safety rules, including limiting use by outsiders who might exploit children. You can look at myspace.com guidelines at this link. It is significant that these sites recommend that (minor) users not identify themselves, largely for security reasons. It is natural to wonder if this advice should apply to most working adults, too. That would all depend on what the adult does for a living (some jobs require a low profile outside of work), and what kind of dependents he or she has. In some cases, aggressive self-promotion is still the right course, given the competitive and global reach of our culture. Of course, there are major differences in practice distinguishing social networking, transaction oriented entrepreneurial business, and promotion of detailed content regarding social and political debate. Even so, with the latter, there are major potential concerns when that content is so tied to very personal experiences that can draw in other people.

We have seen a large number of problems associated with bad actors and crooks: spam, viruses and worms, scams, phishing, aggressive keylogging, using servers as zombies for DOS attacks or for conveying encrypted signs for criminal activity (steganography), illegal forms of pornography, and abuse of minors. NBC “Dateline” and the New York Times have recently run sensational reports on these issues, particularly with respect to chatrooms and the use of webcams by minors. These stories have been so disturbing as to convince some parents not to allow their kids to have their own profiles, websites or enter chatrooms at all.

You can see from all of this why there would be calls for increased regulation of individual users of the Internet as a public resource. I can imagine eventually the idea of requiring domain owners to be bonded. Already, some sources (like an early 2006 issue of Legal Affairs in an article “Without a Net” by Jonathan Zitrain) are examining the idea of licensing code and programmers (and maybe other content providers), not with government but with ISPs and various private associations, which might have partisan agendas to protect.

The Internet has provided enormous opportunities for a certain kind of person: introverted, content-oriented, preferring to set his or her own goals, resenting the idea of competing by rules set by others whom one perceives as stronger but corrupt. Such a person might be viewed as a coward who does not want to fight lie a man, or a real artist, visionary, or reservoir of intellectual objectivity. There is a natural tension between the ethical goals of accountability to others and intellectual honesty. But, unfortunately, many people who paid their dues the old fashioned way have their turf to protect.

Visit my essay on this problem. See also an earlier post in this blog. My blog on safer Internet practices is at http://billsinternetsafety.blogspot.com/

Tuesday, February 07, 2006

"The Kids" learn the hard way about ethics and copyright infringement

Today’s teenagers have grown up connected to a virtual dominion that seems to offer them a continuous flow of freebies. These facilities have, since the 1950s, included broadcast television, followed by cable TV and in the past ten or more years Internet content. Generally, kids have no obvious way of realizing that this content is paid for, often by advertisers, or by the expectation of future legitimate business, even when there is no immediate demand to put money in a cash register.

And higher income kids often see their parents borrow money, and go into debt, for the big SUV’s and homes, clothes and other necessities. They live in an artificial world of high school grades and popularity, and have not yet been confronted with supporting themselves. Of course, I am over generalizing, as there are so many lower income families, and as many teens take minimum wage jobs. Occasionally, kids catch on and start their own businesses, even for charity (as in the Project Greenlight film “Stolen Summer”). But the point is well taken, as it is not easy for teenagers to see what it really costs to produce goods and services, particularly when technology is changing so rapidly.

Psychologists and parents also object to the lure of the virtual world of entertainment and music, as replacing the need for family connections and real involvement with others. All of this is quite variable from family to family, as content can also enrich family experience.

It should not be surprising, however, then, that teens would look at downloads from a peero-to-peer computing network as like refreshments at a social.

I do want to digress here and relate my own experience with music. I took nine years of piano from elementary school to high school, and started collecting records. I remember that record care was a big deal, in the days of heavy tracking tone arms and sapphire needles, just as stereo came in. I collected over 800 records and since the 1980s over 500 classical CDs. I used to get together with a friend in the 1960s and make tapes of records. This was probably copyright infringement, but we justified our behavior by claiming that we were giving the record companies business. Those were the days my friend! Mono records listed at $4.98; discount prices were typically $3.69; half price sales were common and budget labels were coming into being. How many minutes you got on a records was a point of interest, as was inner groove distortion and record wear.

A common complaint of teens has been that record companies stopped issuing singles and sold their music only on expensive CDs. Of course, this has all changed in the past few years; since free downloading has come under legal fire, companies have started offering legal downloads at low prices per song. These companies include the renewed Napster, Apple’s iPod, and Dell and other computer vendors which typically offer legal subscription packages to computer purchasers.

The story of how illegal downloading came to be is itself interesting, as much of it was the work of one Massachusetts teenager, Sean Fanning, who invented the programming concept and implemented it as Napster, first on his campus, probably not understanding the significance of the battles he would start. That has been the asymmetry of the Internet, as with measures that are themselves totally innocuous, individuals with unusual motives can destabilize whole industries or force them to do business in new ways. It’s all part of creative destruction.

Napster became legally vulnerable quickly because it had a centralized server; succeeding peer-to-peer services did not and were able to defend themselves until the Supreme Court ruling for MGM v. Grokster in 2005, discussed in another post here.

Movie piracy poses similar problems, although the large bandwidth required to transmit movies is an issue. It vexes common sense to buy pirated DVDs, but the threat to the industry from perfect digital copies of their product is real. Individual music and movie piracy users have been hunted down from subpoenaed server logs and sued and forced to settle for fines of several thousand dollars each, and sometimes unaware parents or computer owners have been dragged in.

The motion picture business, particularly the system of distribution companies, many of which have merged or been acquired in recent years, as well as theater chains, needs to take a hard look at how to deliver what customers want and will pay for. In some cases, antitrust rules interfering with the ownership of theater chains by studios may be counterproductive. Ideas like simultaneous release of a film on DVD and in a theater (as with Magnolia’s 2006 release of “Bubble”; in the late 1970s PBS did the same with “Breaking Away” with a TV and theatrical release) should be tried for experimental content, as the public is likely to react more favorably. DVD rentals like Netflix have made movie rental much cheaper and reduced the temptation for infringement; the main problem is the time wait for a DVD release, which is probably going to have to shrink for many films. (But some classic films, for unknown reasons, still are not available on DVD.)

There is one other big topic regarding infringement, and that is academic cheating on term papers. On a couple of occasions it has come to my attention that a few items on my site (see my profile) have been used in schools for plagiarism. I fully support the idea of teachers’ using sites like turnitin.com to detect academic cheating. A term paper or research assignment in high school or college is a warm-up for the workplace in the real world. Yet, I came into adulthood in an academic environment buttressed by the Cold War and a political environment that supported student deferments from the draft, with the possibility that academic failure could increase the chances of death or being maimed in combat. I do not see quite the same pressures today. Instead, we have developed a hyper-individualistic culture of extreme capitalism that naturally encourages cheating, as well documented by David Callahan’s 2004 book, The Cheating Culture.

Deep linking: is this essentially footnoting as on a term paper?


Ever since it became common for individuals and small companies to have their own Internet domains (in the mid to late 1990s), there has been some controversy about unauthorized or unsolicited links, especially deep links, to other websites.

I can recall writing term papers in high school and being taught the arcane details of footnotes (the notorious Ibid and op cit) and bibliographies. This was decades before personal computers, and the only device in the house was a 1940s Royal typewriter with elite type. I can recall a handwritten junior English paper on James Fenimore Cooper (his treatment of female characters, which was not flattering) and the painstaking calculation of making the footnotes fit on handwritten pages with lined paper. In college, as an undergraduate, I once had to write an annotated bibliography on a later term paper.

So my view of links is that they are essentially footnotes. They provide the source for bombastic claims and arguments made by others about any controversial issue, and help the writer of online material build a case that some particular set of circumstances really does create a problem. Of course, one can just give the name of the source, but providing the html hyperlink makes the research experience much more efficient for the visitor.

So what is the big deal? For one thing, some people feel that deep links bypass the home page of a site and prevent the visitor from understanding the intention of the reference. In the physical world one had to go to the library and get a physical book or periodical article. They are concerned about loss of advertising of the reference site. They are particularly, and perhaps rightfully, concerned about framed links, where the referrer copies content into a frame on his own page. This may indeed be legitimate copyright infringement and should not be done without permission. Many news sites have terms of service that allow general linking but prohibit framing. It is well to remember also that the stories on most newspaper and news service sites are archived in a couple of weeks and that links to them will not work for long (or the visitor may be directed to a mechanism to purchase an archived article for a small fee).

There is a psychological point, that some people feel that an unauthorized link implies that the reference endorses the use of the material. This sounds like a well known problem from intellectual property law called right of publicity, but it is a false analogy. There have also been arcane arguments posed that some who provides deep links may in some cases be guilty of contributory infringement. There have also been cases of infringement claims for linking to sites that themselves have infringing copies of material, which in at least one case had been presented to show that a particular company’s products were defective.

In early 2003 the Ninth Circuit weighed in on a critical case (Kelly v. Arriba Soft) involving a site Ditto.com that linked to copyrighted photo images in-line. The Court discussed the use of thumbnail images for linking in an opinion that is thought to set important precedents. One can find more details at an Electronic Frontier Foundation link. There had been a major ruling in 2000 involving Tickets.com, discussed at this B.C. Intel Prop link, in which Judge Harry Hupp maintained The customer is automatically transferred to the particular genuine Web page of the original author. There is no deception in what is happening. This is analogous to using a library's card index to get reference to particular items, albeit faster and more efficiently." (Other claims in that case were upheld.)

But (Nov. 2005) Mark Cuban (Dallas Mavericks owner and a principal player in Magnolia Pictures and some independent film ventures) suggests that major news sites pay for links to their stories when advertising revenue results for the original content owner. This is a “win-win” that would discourage print content infringement, at least, and pay for links, which have themselves been controversial. His argument is at this link.

Here is another copyright sidebar: In Britain, authors Michael Baigent and Richard Leigh of the 1982 book The Holy Blood and the Holy Grail, from Random House, are suing Random House for publishing Dan Brown's novel The Da Vinci Code (2003), which the authors claim unfairly expropriates detailed research presented in the earlier non-fiction book. Ideas cannot be copyrighted, but in Britain, at least, there is legitimate controversy about detailed factual research. It is not clear yet what effect the lawsuit could have in the United States. It could affect release of Sony-Columbia's film of the novel, at least in Britain, scheduled for May 2006.

Writers and working from a home office: sometimes zoning laws can matter

At this point, it’s useful to provide a functional decomposition of just what zoning means with respect to “work at home.” In many cases, a person will get a business license from his or her locality, and may very well pay some local taxes based on income from the business, or may have to pay tax on physical property (computers, vehicles, equipment) used in the business. The taxes may be very low for small businesses, or may not kick in until a certain income stream is reached. The license will normally be associated with an assumed name (or assumed business name) legally registered with the local and/or state government. The assume name is recognized by financial institutions, vendors, creditors, and other stakeholders. Registering a business license and an assumed name must take place, for example, if one wants to self-publish or self-distribute a book that one has authored, or even a small independent film that one has made. (The ISBN system for books is keyed to these names.) Registering an assumed name (even if that name is used only as a domain name on the World Wide Web and is properly registered with an ICANN-recognized registrant) will help protect the business owner from possible trademark infringement claims (although the name might have to be registered separately in every state if the product is shipped to every state (even electronically by the Internet), usually not a practical option for a small business.) The business, wherever it is operated, normally must comply with zoning laws, and if it is operated from the home or apartment as a home based business, the business owner usually needs a home occupation permit (and often a sales tax permit from the state). However, the converse is not true. A home occupation does not necessary imply the existence of a business entity (proprietorship, partnership, or corporation). A free-lance writer who submits articles for publication to third parties and gets paid at least once for such a submission and who created and submitted the work from home technically has a home occupation. (So would the writer who at any time in the past got his or her own ISBN under a business name or even his or her own name—which is allowed—to publish a book.) A locality like LA, Chicago or some New Jersey communities known to have pursued writers in the past, would likely follow a “don’t ask don’t tell” rule on home occupations that don’t have separate business names—they would be likely to act or even find out only if another party complained (and such a party could be a competitor, a person who lost a “real” job to the freelancer, a heckler who did not like the person or what the person says or exposed, or even in some cases a family member who feels insulted). Therefore, zoning laws could be invoked for reasons that have little to do with the actual residential values of the property where the person works. Of course, a home occupation that actually does affect the neighborhood (with traffic, hazardous materials, appearance, and the like) would easily attract attention of zoning regulators even without the need for a business license.

Book search projects

As many readers of these blogs know, the company that owns the blogspot space is involved in a controversy over its plans to offer total book searching: to store most published books on its servers and include in search results, and to offer royalties to publishers and authors when books are sold. The company did not plan to offer entire books or large segments of books for free browsing beyond what is normally called “fair use.” The plan always offered an opt-out feature for any publisher or author. Amazon.com has a partial similar capability with its “search inside the book” feature.

This sounds like a win-win for authors, who putatively would increase sales and for newbies especially. Why, then, has there been an outcry, and even a lawsuit by the Authors Guild, seeking injunctive relief?

Some of the reason may be practical. Some publishers and writers (myself included) offer their books for free online browsing. This may be all right for books with long narratives (especially fiction or biography) that cannot be easily read without eventually purchasing a hard copy for the beach (or perhaps an e-book for an e-book reader, a technology from the late 1990s, including Softlock, that does not seem to be taking off). Sales of books with a reference aspect, however, like cookbooks with recipes, or “how-to” books, might be harmed by such easy online availability.

But the objections seem to be more fundamental. If you go into a Kinko’s store, you probably won’t be allowed to copy an entire book, or even any pictures, because of copyright infringement, even for your own use. (It probably would be more practical in economic terms to buy a copy of the book anyway, unless it was out of print.) There has always been a legal expectation that authors and publishers may withhold consent for large amounts of copying, even for personal use. (There sometimes exceptions for teachers or librarians or other school use.) Established authors, especially those who make a living through writing and who normally expect advances for future work, simply do not want to yield any turf on this. Too bad. Okay, maybe they really think that people will waste time, toner or jet ink printing out books on homer or office printers.

Truth to tell, there may even be a more subtle concern with some authors. Most non-fiction issue-oriented books, particularly those oriented toward current events, run the risk of embarassing or exposing certain parties. That may in fact be part of the author's intention and may not seem out of line when the visitor has to go to the trouble and expense of purchasing a whole hard copy book. When a "book search" makes it easy to find a particular party mentioned in a book with no effort essentially forever, this may expose the author to a greater practical risk of legal complaints. All of this is very unsettled, as search engines have created new practical perils for "controversial" people that were not significant before. Some publishers, when they display portions of book text online for browing, exclude robots from harvesting the book content. Many publishers give authors the option to opt-in or opt-out from submitting their books to complete search programs, which may or may not include the ability to browse the entire book online.

That means that this book catloging (essentially an electronic "Library of Congress") may have to start out modestly, with historical archives and works in the public domain. A lot of this (Shakespeare) is easily available online to search now. But it would be good, from a Freedom of Information Act point of view, to get more government material and national archives into the search engines. Some of that impacted me earlier in life.

A couple of other points: companies that want to offer internal book searching or publishers (including cooperative publishers) that allow free public browsing of online copies ought to have considered becoming plaintiffs challenging COPA (see below). Furthermore, some search engines offer visitors cached copies of documents, often converted from other formats (particularly PDF) to HTML. Theoretically, these might be viewed as infringements if done without permission, although they cause little practical objection. However, when a document needs to be removed or changed for some particular issue, it often takes some time before the cache can be removed or changed, particularly if the item is to be deleted so that the link becomes orphaned.

Inducing Infringement of Copyrights Act of 2004; the MGM v. Grokster ruling

In 2004 the Senate introduced a bill that would strengthen civil and perhaps criminal penalties for companies (or perhaps) individuals who intentionally encourage others to engage in copyright infringement. This activity probably focuses largely on illegal music downloading (as through peer-to-peer computing) and movie piracy.

The bill would appear to strengthen the idea of downstream liability for the copyright infringements of others. This has always been an issue in copyright law. A company that abets copyright infringement (such as a copy center, printer, publisher, or retail company) can be held liable if it participates in deliberate infringement.

Detractors from the bill have been concerned that it would penalize hardware and software vendors who provide instruments for legitimate use, such as for filmmakers to share their own films or burn their own DVDs.

The concept of downstream liability was tested in June 2005 with the Supreme Court, in MGM Studios et. al. v. Grokster. Ltd. The Court held that companies whose business model is predicated upon encouraging copyright infringement could be held liable for the actions of their customers. This is so even if the services of these companies have some legal uses. There was concern that a ruling in this case could impute downstream liability to ISPs for their customers, and some ISPs have been more aggressive in pursuing infringement claims against their subscribers and in providing mechanisms to for complainants to report infringement. However, ISPs probably would not be held liable for the actions of their customers if they act in good faith and if their business model as a whole is not predicated on infringing activity.

Editorial on filesharing problem

Letters to Senators Allen and Warner, and replies

Another important concept is the DMCA "safe harbor" for ISPs and OSPs. See
http://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act

Monday, February 06, 2006

The Trademark Dilution Revision Act of 2005: tread carefully

This item has been moved to a new blog specifically set up to keep track of the Trademark Dilution Revision Act of 2005. It apparently (as of 06/2005) is still in committee. The comment is still here, but I have provided a link to the comment from the new blog. The link for the blog is this.

Here is the March 4, 2003 Supreme Court ruling
http://www.supremecourtus.gov/opinions/02pdf/01-1015.pdf “Moseley et al. DBA Victoria’s Little Secret v. Secret Catalogue, Inc., et. al.”

The text of the act is this link: Trademark Dilution Revision Act of 2005

Friday, February 03, 2006

A note about self-publishing

It used to be that getting published was a big deal. You worked with literary agents, and authors of books and periodical articles had to jump through hoops. You submitted hand typed drafts and were careful about making physical copies. You were very conscious about what other people wanted to read. Publishing, like everything else, had its turf to protect, and publishers were properly concerned about the public credibility of the author and would go to great lengths to do the legal due diligence before putting books out. Over time, trade publishers have become even more concerned about their numbers-driven business, and have tended to be less willing to continue working with “midlist” as opposed to "best selling" authors. Small presses and university presses have taken up a lot of the slack with specialty content. For years, subsidy publishers or "vantiy presses" offered newbie authors a chance to pay someone else huge sums to publish their books. Nevertheless, old economic models in media would have seriously reduced the variety of media and book content available to the public had technology not come along to empower individuals and very small businesses and organizations.

In the 1980s, with personal computers and printers, the potential productivity of writers started to improve. By the early 1990s, desktop publishing had become economical. For a reasonable price, you could prepare a manuscript with a word processor and publisher’s software (like Quark Express), get your own ISBN (International Standard Book Number) from the “Books in Print” people, and hire a printer to do a print run. Printers varied enormously in what they charged, with web press technology making small runs cheaper, and then specialty book manufacturers made the process even more economical. The author would set up her own publishing company, which could be either a proprietorship or a corporation (sometimes a partnership).

Around the year 2000, “print on demand” began to take off. A company will store an electronic copy of a book on a database and print specifically only the copies ordered. E-commerce retailers like Amazon and Barnes and Noble began to work with “print-on-demand” products, which could either be self-published or be legally published by the POD company, which then would be known as a “cooperative publisher.”

In the mid 1990s, personal publishing on the World Wide Web took off. First, large ISPs like AOL offered their personal publishers, but quickly individuals became able to obtain their own domains and present their materials for others to find through search engines. Blogging (a particular format where entries are usually presented in reverse chronological order) took off. Even if one could not make much money, one could get an audience for subtle points of view about things that organizations, who had to be loyal to dues-paying constituencies, could not afford to express. Debate became more honest.

One fact about self-publishing is that it tends to streamline the legal due diligence typically followed by large publishers. Technically, self-published materials are held to the same legal standards (regarding copyright infringement, libel, invasion of privacy, obscenity, and other matters) as trade books, periodicals, and movies. Large trade publishers have liability indemnification clauses that would require authors to replay them if any legal judgments are entered against. Typically, ISPs and print-on-demand companies also have the same clauses, although in practice they are rarely invoked (with the generation of spam being the one big exception). Even so, media perils insurance companies have often been unwilling to insure self-publishers.

Which brings us to the nexus of the controversy. Self-publishing seems to bring capitalism and its opportunities down to the individual. However, some people do not see it as legitimate; “self-published doesn’t count!” There is a certain appearance of a lack of accountability, since self-publishers typically do not have to answer to outside interests and investors. A third party's interest (that is, "other people's money") gives the author credibility by keeping a "Chinese Wall," although, truth to tell, even mainstream trade publishers have put a lot more responsibility for sales back on authors in recent years. Along these lines it's noteworthy that sometimes writers have paid to have their books reviewed. With less outside supervision, there is the risk that controversial self-published materials could inadvertently affect others associated with the author, certainly in the workplace (depending on the author’s job, if he or she makes most of his income outside of writing), or even the author’s family. Sometimes there is a suspicion that a writer wants to create a stir because he does not like more conventional social intimacy and interchange with other people against his will, and sometimes the author may not have accepted the personal or family responsibilities of those whom he is criticizing. Ultimately, there may evolve legal questions as to whether the “right to publish” is really equivalent to “freedom of speech.” In certain circumstances the established press may have certain rights and protections not enjoyed by individual authors (a point that has come up in the discussion of blogging and campaign finance reform, the next topic).

Writers, after all, must often defend what they do as a real profession. With me, there is writing and then there is writing. Often when writing is paid for by a client, it must express a particular point of view for some interest and therefore cannot be objective. That’s been a rub that I have with “professional” writing, although certainly journalism as a profession insists on objectivity as a professional standard. But ultimately, the writer has to satisfy other people; his readers are his customers. Some guilds and organizations accept for membership only those writers who prove that they can get advances and make a real living at it; they insist on this in order to maintain the view that writing makes a real career.