Saturday, October 30, 2010

Recent broadcast and Web slurs point to a subtle and rapidly evolving problem

We’ve seen at least three visible examples of people in positions of “responsibility” making inappropriate comments in broadcast media or creating and self-publishing or posting inappropriate slurs on the Web. A NPR analyst made an unfortunate comment about people in apparent Muslim garb; an assistant Michigan attorney general created a blog to harass a particular gay college student, and an elected school official in Arkansas made horrific anti-gay slurs on Facebook.

Part of the reaction to this is not just the content itself or the groups affected. Professional journalists are not supposed to take up activism on their own politically, and in the HR world there is general knowledge that people with direct reports should not do so either. There is indeed some controversy with teachers, as the First Amendment protects their postings when they address matters of genuine public concern and some civility. But all of this can have a real effect on how many people use the Web, especially older forms (1.0) concerned more with publishing than newer modes concerned with networking, both social and professional. We’re only now seeing the necessarily public discussion on this subtle issue. Complicating the issue in the HR world would be prospective concerns, that a person with particular “intellectual property” interests on his own might be working for “journalistic” rather than professional motives (the ABC “Food Lion” problem from the 1990s).

Personal, self-managed and self-publsihed activism appeals to those who do not like to compromise with the oversimplified, partisan and compromising iniative of traditional pressure groups, parties, and political campaigns.

Anderson Cooper provided a comment from Dr. Phil on the Arkansas situation.

Friday, October 29, 2010

Righthaven seems to win legal victory for its "business model", at least for now

Steve Green has an important story in the Las Vegas Sun Oct. 28, about a ruling by a Las Vegas federal judge Gloria Navarro that Righthaven lawsuits will not automatically be dismissed because alleged copyright infringement occurred before ownership interest was sold to Righthaven. The link for the story is here.

The ruling involved Canadian website majorwager.com (link), and also dealt with some subjective 14th Amendment questions involving Nevada jurisdiction, especially with foreign defendants.

However the judge remained open to considering arguments about Righthaven’s “technique” during trial, and particularly the question as to whether “right to sue” is normally transferrable as an ownership interest. In Righthaven’s favor is probably the example that debt collection companies purchase that right from creditors as part of their business all the time. Another factor in Righthaven’s favor could be the strong deference to property rights, also subsumed by the 14th Amendment. The problem is that the property right argument could become important to bloggers and writers in other kinds of litigation, such as involving conflict of interest or employer blogging policies. So bloggers have their hands in both sides of the argument.

Update:
Monday Nov. 1 the Las Vegas Sun provided more material, including a counterclaum by Thomas A DiBase, here on Scribd. DiBase runs the "NoBody" website to help prosecutors in cases where no body is found after a disappearance. 

In answer to questions about requested seizure of domain names, Righthaven claims that domain names could provide revenue incase a judgment is not paid. (For example, a domain name could be used for a purpose other than what the defendant had been using it for.)  Also, defense attorneys are continuing to press arguments to the effect that Righthaven must make a reasonable case that a quoted story could earn its copyright owner income in a conventional mabnber.

Wednesday, October 27, 2010

Can "ordinary workers" get caught by insider trading? It doesn't always need the Web

I’ve followed the problem of “conflict of interest” in many guises, but here’s a story that doesn’t directly involve the web or even management employees.

Two blue collar employees of Florida East Coast Industries were charged with "insider trading" -- tipping off family members and trading in their company merely after seeing strangers (or maybe “strangelets”) in business suits in the railroad yards and taking special trips. Peter Lattman has a New York Times story on the incident (website url) here. The S.E.C. actually pursued the employees with a civil suit, while missing Madoff and a whole slue of “inside jobs” on wall street.

In the past, there have been cases where people have set up websites to traffic rumors and manipulate the share prices of companies they worked for.

Tuesday, October 26, 2010

YouTube case may lead to requirement that copyright plaintiffs consider Fair Use prospectively

Rebecca Jeschke has an important deeplinks story at Electronic Frontier Foundation, Oct. 21, “Mom Asks Court to Declare Universal Violated Law in ‘Dancing Baby’ Case”. This refers to a case in 2007 where Stephanie Lenz posted a YouTube video of a family scene where an excerpt from a Universal movie or show embedded on a television set was imputed and shown.

Lenz has apparently won a ruling from a judge saying that content owners must consider Fair User before filing DMCA takedown notices. While some aspects of the litigation are still continuing, the concept could become important in other copyright litigation, including Righthaven, where defendants have been sued with no DMCA takedown warning ahead of time (this controversy has already been considered, as on Oct. 14 here). Generally, Fair Use has been treated as an after-the-fact “affirmative defense”, but if a judge ruled that a plaintiff must consider it before-the-fact, that would be important.

The link is here.

Monday, October 25, 2010

Facebook's privacy settings still allow others to troll for "thou"

There’s more news on Facebook privacy settings, from a UK website called “The Register”, by Dan Goodwin, saying “Facebook pages very much public, even when set as private”, link here. Webroot advised everyone about this through Twitter today.

Essentially, “Facebook profiles that have been designated as private are viewable when browsing a list of friends that includes the profile.” But it’s probably true that in practice a person who sets his settings as private are remain a “low profile.” Technicians said it would not be difficult for Facebook to elaborate its scripts to look for these profiles and not present them.

Facebook is supposed to be able networking rather than publication, but Zuckerberg’s philosophy seems to be that every person is essentially public. In a word of young professionals and artists that may work fine, but may not work for people in sensitive professional or familial situations, as many people of older generations understand.

At a forum Friday night in Washington DC (see my Movies blog Oct. 23) showing two films dealing with “don’t ask don’t tell”, some speakers noted that Facebook is probably one reason why the policy (for gays in the military) is becoming completely obsolete and unenforceable. No one in 1993 understood how the Internet could affect the concept of “private life” and also affect the balance between individualism and the notion of belonging to a family or group. (In comparison to Facebook, Myspace now seems like small potatoes, or pumpkins!)

Picture: Note the street sign (Washington DC).

Update: Oct 26

Ceclia Kang has a brief  "Post Tech" story in The Washington Post "White House forms federal committee on Internet, privacy policy", link here.

Sunday, October 24, 2010

National Mall holds science fair: some memories of high school come back

The National Mall held a “science fair” this weekend, Oct. 23-24.

One of the posters, about the effect of alcohol on the "drunken brain", reminds me of an eighth grade science experiment, where I had two mice in cages in the basement and gave one of the alcohol. In tenth grade, for biology, the project was a woodcut cross-section of human anatomy (the “draw and label” exercise), and somehow I remember going to the Georgetown University Library in 1958 for research materials. In twelfth grade, for my “Science Honor Society” initiation talk on Dec. 9, 1960 in my own basement (two days before a big blizzard), I tried some bizarre experiment substituting silicon for carbon in some acetone-like compounds. Later, in 1963, my first paid job would be in a rheology (viscosity calibration) laboratory at the National Bureau of Standards, when it was still on Van Ness St in Washington.

Somehow the "drunken brain" exhibit reminds me of the teacher's Facebook picture "drunken pirate" that cost her teaching career (see especially Oct. 29, 2007 and Aug. 6, 2010).

The main speech that Dec. 9 event was given by a young man who would be the official valedictorian (Washington-Lee High School in Arlington, Va – 50th reunion for me is next year), and he talked about the immune system, and actually predicted that a virus could destroy it. Only 25 years later would a gay rag like “The New York Native” (Charles Ortleb) would runs stories about what was known about AIDS-like illnesses back in the 1950s, and everything at the USDA’s Plum Island.

Note below the teen instructor in robotics.

My life has some examples of chilling prescience.

Enjoy your map exercise.  A geogrpahy test on Friday!

Saturday, October 23, 2010

Political activism, journalism, commentary: all HR issues (with almost no litigation record)

The NPR/Fox flap over Juan Williams has highlighted a certain problem that can affect bloggers. A spokeswoman for NPR put it this way: “It you want to be a political activist, you can’t be a journalist. That’s long been known…”

What worries me that is a more subtle problem in the workplace: if you’re in management, you shouldn’t “be” a political activist, at least publicly (on the web), because that could lead to hostile workplace claims. That seems to be believed in the HR world but I don’t know if it’s ever been litigated into legal precedence; and companies (outside of CNN) have been slow to articulate blogging policies that implement such an idea. (You could say this about lobbyists and trial lawyers, too.)

In general, most political bloggers engage in “commentary”, not basic journalism (even though EFF maintains that Bloggers can be journalists). Good commentary takes facts, generally already previously published but also attributed bibliographically, and sometimes comes from personal experiences, and draws logical conclusions from the facts by putting them together in novel alchemy. Maybe it's your basic English 101 "first theme" writing. But commntary can also morph into borderline activism (the "arguments" v. "converts" dichotomy).

But then there can arise, in the HR world at least, you can engage in “commentary”, at least without pre-publication review. That would lead to real challenges to the free flow of information on the Web.

Understand, also, that most lawyers would probably see “social networking” as distinct from “commentary”. In fact, professional social networking has become indispensable, a state of affairs that Facebook particularly has created for us. The ideology or belief system of even one person can make a real difference.

Friday, October 22, 2010

Wikipedia bans British blogger for bias on global warming

On Thursday, Oct. 22, The Wall Street Journal, on p. A16, ran an editorial “WikiPropaganda” applauding Wikipedia for banning British blogger William Connelley from editing any content on Wikipedia dealing with global warming. That’s because he had reportedly deleted material presenting views that disagreed with his aggressive position on controlling global warming.

Wikipedia has found it necessary to become stricter with spontaneous editing, for example, forcing any entry dealing with or changing any living person to go through pre-publication review.

Wikipedia does provide the public a way to provide content with, in a practical sense, relative anonymity (important for people in some sensitive situations). I’ve updated only one article, dealing with “don’t ask don’t tell”, providing information about the 1993 Rand Corporation report, and that info has subsequently been modified by others.

The WSJ editorial (may require subscription to see in full) is here.

By the way, I still don't seem to have enought "notability" (= "notoriety"?) to warrant a Wikipedia entry. My one reference is here.  But frankly I think I've had much more impact on the debate on "don't ask don't tell" and speech ("implicit content") issues than the public realizes. Time will tell.

Picture: Kipton, Ohio (near Obelrin), recent trip by me; I spent my summers (July anyway) there as a boy. I got to know the Cleveland Indians as well as the "notable" Washington Senators.

Thursday, October 21, 2010

Righthaven cases point up a flaw in the idea of Fair Use as an "affirmative defense" rather than as a limit to the "scope" of copyright

The Bureau of National Affairs, Professional Information Center for Intellectual Property, has an issue in the Media Law Reporter, Vol. 38, No. 40, Oct. 19, 2010, “Righthaven’s Litigation Tactics Raise Concern for Online Publishers”, link here, authored by Anandashankar Mazumdar.

The most interesting point is that Fair Use in copyright law is set up as an affirmative defense to a complaint and case law has evolved that way. But Fair Use doesn’t limit the scope of copyright law per se. If a copyright owner feels infringed because he or she wasn’t consulted for permission, it seems it is legally correct procedure to sue and force the republishing party to defend itself, sometimes a considerable expense. In practice, that could be a real threat to “amateur” blogging. The legal standard for bad faith filing is pretty low, and Congress would probably need to act to prevent abuses—by working it into the original scope of the law. I recall that the Cato Institute took up this idea in 2006 in a public luncheon forum in Washington DC., link here ; I had met one of the speakers, Tim Lee, during my days in Minneapolis networking with the Libertarian Party of Minnesota. At Cato, there was a robust debate on whether copyright law really works for content creators and functions properly in a market economy (including consideration of the DMCA and maligned but necessary "safe harbor").

At least one Righthaven defendant (as of Oct. 21) has prevailed with a Fair Use defense, and it is likely in practice that many others will win if they can afford to defend themselves rather than settle, or find pro bono representation. (The dismissal ruling in the "Nelson" case is here on Scribd).

The article mentions the Poynter Institute, which is used by the Media Bloggers Association.

Down the road, this weak implementation of the Fair Use concept could become a real problem for providing bloggers with media perils insurance, if the legal system doesn’t do enough to prevent frivolous suits, but we already know this from SLAPP problems. And some day there could develop pressure to make the insurance mandatory.

As of today, the number of lawsuits is 160 and counting. As I’ve noted, there is more than one take on the idea of aggressively mining one’s “property rights” because otherwise others could sometimes make unrelated claims against them.

It’s interesting, too, that this problem has developed with the old “Web 1.0” model for publishing (including forums) and doesn’t seem to be affecting the social networking world yet.

Wednesday, October 20, 2010

Copyright: contemplating it from the viewpoint of a copyright owner

Yesterday, while in a full service Internet cafĂ© in New York City, I tried searching my name again, and did find that some sites do “broadcast” some of my postings, sometimes with a title and first sentence, such as with this example (link).

Occasionally I do find examples of plagiarism on the web. I am aware of a few examples of college or high school plagiarism from my work and than of others.

It’s interesting to turn the copyright question around and think about it as an owner, when encountering cut-and-paste by others. I think that “amateur” bloggers of posters (like me, quite frankly, for 12 years or so) benefit from the exposure, even from outright copying, particularly if they post their content for free viewing without requiring user logon (even if displaying ads).

Some commentators have suggested that reproducing an article’s title and first paragraph is acceptable practice in Internet news aggregation; others, however, have said that this undermines the intrinsic value of some news sites used as sources, especially the Associated Press, which has objected. Bloggers probably benefit from this being done.

There is an opposite side of this coin, however: if one does not protect one’s intellectual property rights, one might lose them later in a seemingly unrelated matter. No, I’m not going to “sell” any articles to Righthaven or any such operation. But Stephens Media may really have a point. For example, the right of a blogger to continue posting his own “property” without third party review could be questioned in some employment or even domestic situations, and a history of defending one’s rights vigorously could work in one’s favor.

For travelers to NYC, there is a full service Internet Cafe at Bleeker and Jones streets, near Sheridan Square and the notorious Stonewall Inn.  The local Kinkos and FedEx on West 4th doesn't have customer computers.

Tuesday, October 19, 2010

Gulliver's Travels (that is, Bill's)

I made another visit to Ground Zero today, before going to a show in the Village. I can see that the Liberty Tower (or obelisk) has added about 100 feet. But originally the new WTC was supposed to be completed in 2008. I don’t know why there are so many extra years in getting it built. There is another structure in lower Manhattan that I had never noticed that has two towers offset, much like the original twin towers,


I found the site of the proposed mosque, two blocks north, and it’s rather unremarkable; there is an Amish Market right next to it.


There is also a cross made of the original WTC steel one block north.


I went up to the George Washington Bridge on the A train, site of a tragedy in the bullying controversy. Next to it are the scenic Palisades.

I understand that a federal judge did not budge on “don’t ask don’t tell” today. I’ll check this tomorrow; it’s late.

When the cat's away, the mice play; but Greenwich village cats are friendly, and one caught a bird right in front of me, ready to present it.

Monday, October 18, 2010

Bloggers bringing sleaze and "little brother" to mainstream media, and even into the home

Howard Kurtz has a column Oct. 18 in his “Media Notes” in the Washington Post, “Bloggers are scooping sleaze into the mainstream news world”, p. C1 print, link here. His examples deal mainly with rumors in the sports world, but they could be anywhere. Bloggers are forcing mainstream papers to play “gossip girl”, which is rather reversing the accusations of Stephens Media and Righthaven, who claim that bloggers are just stealing their stories. Kurtz himself is moving over to become bureau chief of the Daily Beast (link).

I don’t think my own blogs get into sleaze; a few dirty dancing pictures are about as far as I go.

Then, today on page B3, “John Kelly’s Washington” talks about the kinder, gentler newsroom (at the Post) where stories are now “deleted” rather than “spiked” or “killed”. The mainstream newspaper world used to be a picky, brutal place he says. Read Foster Winans’s “Trading Secrets”.

Then, The New York Times Magazine on Oct. 17, page 17, Walter Kirn has an article in “The Way We Live Now”: “Little brother is watching: in the web era, we are eroding our privacy all by ourselves”, link here.  He develops his thesis on the Rutgers tragedy. “Ours is a fragmentarian society, infinitely divided against itself and endlessly disrupted from within by much the same technologies that, in Orwell’s somber novel, assured a dull and deadening stability”. But we still want some people to be “more equal” than others.

I did see Michael Radford's UK film "1984" (with John Hurt) that year while living in Dallas, and even then the movie and Orwell's novel (so often read in high school) sounded dated.

Saturday, October 16, 2010

Bullying can be dealt with by basic ethical and civil principles

The media has rightfully focuses a lot of attention on bullying recently, both on physical bullying and cyberbullying.

One troubling question is whether schools should teach students about the issues of specific targets – such as LGBT people – as part of the program to end it. Many insist that this is necessary.

It has always shocked me that school administrators look the other way and say “Boys will be boys” and tell targets not to attract unfavorable attention to themselves, as if bullying were a semi-legitimate way to impose the social norms of the group.

Instead, there should be a consistent standard of expected behavior. Individual people may exhibit various characteristics and behaviors that some people may, for whatever personal (or particularly religious) reasons, associate with “moral” issues; but in a civilized society one does not confront others directly with judgments like this, likewise one should not single out others online this way. This is the way people are supposed to behave in the workplace, in schools, and now in the military.

One wonders a bit about online presence in a more abstract sense. As I found out in an experience when substitute teaching (July 27, 2007 here), others may wonder what the “purpose” is about dealing with some matter on line, and believe that if the speaker has no direct “standing”, that the speaker is motivated by animus or by a desire to stir up trouble. This is the old “implicit content” problem that some people might want to connect to cyberbullying, although that seems a bit of a stretch.

I was teased a lot in grade school (starting about grade 3) and “junior high” for being physically uncompetitive as a male, but not for perceived sexual orientation in itself – all this back in the 1950s. In those days, there was an unpleasant connotation, that someone physically “behind” could become a “burden” on the safety of others if wartime conditions occurred again – all of this occurring in a time when male-only conscription was practiced. (Contemplate this: teen bullying leads to adult bullying, which can go down the political path of either Nazi Germany or Communist Russia and China with its “Cultural Revolution”, depending on circumstances; or it can go down the road of radical Islam.) I sometimes retaliated, such as a time in seventh grade when I scratched a boy’s arms with my fingernails after teasing, maybe leaving scars. The teacher actually though the boy had gotten “what he deserved”. Toward the end of ninth grade (still junior high in 1958), I participated in spreading rumors about a boy’s seizures in class, and actually confronted the boy myself in gym class, in front of the teacher. I was called in and bawled out by the school nurse! (and she used the word bullying). It’s hard for me to understand my own insensitivity then, even at age 14, even though psychiatrists today say that the “teen brain” is not fully developed to understand consequences or even apperceive empathy. It is true that those who bully were often bullied themselves or fear it. In senior high school (grades 10-12) I had no issues at all (at Washington-Lee in Arlington, VA, at the time one of the best high schools in the nation). But at William and Mary, as a freshman in 1961, the problem would come back (see my Nov. 28, 2006 posting). One result of the "teasing" (quasi bullying) in my own tween years the development of a feeling that the courtship and competitive aspects of the heterosexual world were humiliating; I would desire to live on another planet and have nothing to do with it (and become very aware of the same apparent "difficulties" in others). For years, that is effecitvely what I did, until "The Reconciliation".

Thursday, October 14, 2010

Question on downstream liability for copyright infringement for forum hosts?

If you run a discussion forum on your website, you have Section 230 protection regarding defamation. But if you use shared hosting and don’t have your own Internet connection (are not a service provider), and someone else posts an article in a forum posting that commits copyright infringement, are you exposed to downstream liability, since you had no way to register yourself as a copyright agent for DMCA safe harbor purposes? Does anyone know?  A few of the Righthaven defendants appear to be forum hosts, to me at least.

Conceivably, a blogger using this service (or Wordpress) could be liable for a comment that itself made an illegal copy of an article without recourse to DMCA safe harbor first.

Tuesday, October 12, 2010

Security company (LIGATT) tries litigation to silence "trash board" critics

Even before 2000, I had become familiar with the “trash talk” boards on stocks, and had once written that employees of a company should never write on them, even anonymously.

A company called the LIGATT Security Group has sued some IT consultants (including former employees) who do not own stock in the company for “stock bashing” for personal reasons. The defendants had supposedly made anonymous comments bashing the OTC stock. There are three prongs in the complaint: defamation, business disparagement, and the “tortuous interference” known from the movie “The Insiders”. The suit was filed in a Georgia state court.

There have been cases where people (including employees) of some companies have behaved illegally online in order to manipulate stock prices (this happened early on, like in the 1999-2000 period, late in the Dot-com bubble), and in fact a few of these cases (such as a 1999 case in North Carolina) were among the early warnings that “gratuitous” online speech (even in a Web 1.0 environment) in the view of newly effective search engines could have unanticipated effects.

Here’s a story from Investor Village “Stock bashers facing litigation (FWIW) from another board (entirely)”, link here.

Kurt Opsahl has a more detailed analysis from Electronic Frontier Foundation (July 27, 2010), “LIGATT Security Tries to Silence Its Critics with an Unsubstantiated Lawsuit”, link here .

Sunday, October 10, 2010

My own "intellectural property" protection policy

Given all the speculation and uncertainty discussed about copyright, implicit content, and other matters in some of my recent posts, I thought I would reiterate my own policy as to my own content. I want to place particular emphasis on the notion that any body of material for which I have spent a lot of time to develop does need the protection of a clear i.p. policy.

(1) These policies apply to material that reasonably qualifies as “intellectual property”. They would not apply to brief comments made in forums or on social networking sites or emails mainly for networking, rather than publication purposes.

(2) And items of substantial text (books to blog postings), images taken by me, and videos taken by me, or future items such as films, belong to me. I retain the right to sell and distribute these items in a manner of my choosing, as is usually expected with property rights, unless I sign a voluntary contract with another party (for example a trade book publisher or a motion picture distribution company) assigning publication or distribution rights. I will inform visitors of any such arrangements.

(3) Text items may be quoted without permission within reason, as long as attributed (by direct or “tiny url” hyperlink when possible on the web), under the Fair Use doctrine of copyright law, as normally understood. I am not concerned whether the material in which they are quoted is commercial or not, or whether my original was commercial (carried ads) or not.

(4) Original videos or music audio clips may be embedded in any site, including commercial sites, if I provide embed code.

(5) For still images, permission should be sought, unless I have specifically said otherwise or provided embed code.

(6) Although I think my need to resort to filing copyright complaints may be unlikely in practice for the foreseeable future, I will assure visitors who republish my material that I would follow normal DMCA safe harbor procedures as long as the potential infringer was served by a provider capable of serving as a registered copyright agent. I will not sell intellectual property to other parties just in order to litigate.

(7) If I enter into an employment arrangement with any party as an employee, hourly worker, or contractor but as a non-management “individual contributor” (for an entity that deals with the public in a neutral manner), I reserve the right to remain active as a self-publisher on the Web or in print without third party supervision. However, such an employing or business party may have policies requiring associates to submit their own materials to third party review; but if so, the parties must inform me before employment offer or business contract is offered, and should inform the public through websites if at all possible of any such policy. This would include government agencies.

(8) If I enter into an employment or business agreement where I have direct reports (in the usual sense of this concept in human resources) and will have such an arrangement with the same individuals for 120 days or more, or have the responsibility to underwrite customers or “grade” students, I will agree to submit anything I self-publish to third-party review to prevent prospective conflicts. Special considerations may apply with employers or business partners that are themselves media companies (for example, film studios or production companies). These provisions do not apply when informally supervising employees or contractors from third party agencies when the arrangements are expected to be temporary, and do not apply to lineage familial situations.

(9) Similar third party prepublication review processes would occur if the employing party were normally viewed as biased (a political party or a lobbyist).

Saturday, October 09, 2010

Mayor Bloomberg blasts self-display on Web 2.0; maybe he is leading somewhere

Saturday, Oct. 9, the New York Daily News ran a story on p 3 by Adam Lisberg and Larry McShane, titled “Get me off this dumb Facebook!” in print, and “Mayor Bloomberg may have his iPad, but hizzoner is no fan of Facebook or Twitter”, link here. Bloomberg couldn’t understand why people post the details of their daily lives (as in Richard Strauss’s “Sinfonia Domestica”); I agree, I don’t need to know from Twitter that my favorite classical music critic couldn’t make it to a garden party because his kid had just vomited. Bloomberg was also critical of the tendency for kids to publish compromising photos of themselves, and thought it was perfectly appropriate for employers to vet people online before hiring them. After all, clients might do it.

That brings us to a couple points we have made about “online reputation”: some people give undue weight to tiny things, like a couple of cases where teachers were fired because pictures of them (as legal adults over 21) holding apparent alcoholic drinks appeared on line. (It didn’t take anything like Olympic swimmer Michael Phelps’s bong hits.) Again, you could appear in a random picture at a disco taken by someone else. Furthermore, it is frightfully easy for an employer or private investigator to identify the wrong person online, and no one will ever know.

This bring back to mind the whole Andrew Shirvell episode in Michigan (where the assistant MI attorney general targed a gay college student at Ann Arbor in his screed-like blog). The story may be complicated by reports that Shirvell had followed the student physically at least once, but even the blog itself sounds like inappropriate output from a state official, whose objectivity in doing his job as a prosecutor would then be questioned. But this observation itself takes us down a slippery slope. Suppose I am a manager with many direct reports and ability to make performance appraisals and to hire and fire. Even if I say on a public personal blog (in a moment of “recreational outrage”) that, for instance, I am opposed to “affirmative action”, could some subordinate who happens to find it online claim I was biased if I ever some disciplinary action against the subordinate? Maybe that leads (some day) to a legal rule that anyone (with workplace direct reports) who wants to publish his own “intellectual property” must submit it to bureaucratic third-party pre-publication review before publication, to stop “hostile workplace” claims. What it I have a Facebook page, and put only pictures of “desirable” co-eds on it as friends, and let it be open to “everyone”? (That is, Mark Zuckerberg’s definition of “Everyone”). A less stunning employee gets fired and sues. (This could happen in either a gay or straight setting, but it might even matter if I first “told”). All of this can lead us into some esoteric scenarios that could generate more than one independent movie (“courtroom drama”) screenplay for the Landmark Chain. (Remember “tortious interference” from “The Insider”?)

Maybe some of my ruminations here are speculative, but we have a worldwide community with extremely variable notions about reputation, and how one person’s can affect another’s. Self-display is a good thing in a community committed to individualized democracy, but it causes real issues as it moves away from its annular origins into the hot starlight of the real world. Imagine, if you will, the Internet once we have colonized other worlds and have to transcend the speed of light. Maybe we will depend of telepathy.

Friday, October 08, 2010

Ohio governor's race inspires a DMCA controversy

Copyright infringement takedowns under the DMCA have surfaced as an issue in the Ohio gubernatorial campaign this year. Congressman John Kasich put up a commercial with a clip by actor Clip Redden, playing a steelworker discussing governor Ted Strickland. The Ohio Democratic Party put up a YouTube video explaining the use of the actor and showing previous clips, including some material by production company Arginate. The studio ( link ) served YouTube with a DMCA takedown notice, which was honored. The video has remained available on Vimeo. Arguably, this was fair use and YouTube risked no downstream liability by leaving it up; the takedown order sounds as if it is politically motivated. Back in May, YouTube had restored a National Organization for Women video, claiming fair use.

Nevertheless, the video remains on Arginate’s own site, with embed code offered to bloggers; could there be a dilution of a fair use case if a blog serving ads used it?

The Copyrights and Campaigns blog has a posting by Ben Sheffield here, discussing the incident and Electronic Frontier Foundation’s position also, here

It’s well to remember that copyright owners of music and video are sometimes very strict about any “unauthorized” use of their material, fearing a slippery slope. Commercial movies seek licenses for even one second clips from previous films shown embedded on televisions. It’s true that Vimeo can control the use of its “property” as a general principle, but here, in an election, where the purpose is so obviously political speech and where there is no real diluting impact, there seems hardly any question that the YouTube posting is fair use.

I suppose that, had the FEC not calmed things down in 2006, we could be talking about this video in relation to campaign finance reform, too.

At least, the Ohio Democratic Party was notified of a DMCA complaint, however ill founded. A plaintiff like Righthaven just would have sued anyway.

Here’s Michael Moore on copyright law. He speaks negatively of copyright, but says he just doesn’t want anybody to reproduce his work “for profit”. How does that impact fair use?

Thursday, October 07, 2010

Facebook refines privacy concept into "cliques", good for business, closer to pure "networking" as opposed to broadcast

Kurt Opsahl has a commentary dated Oct. 6 regarding Facebook’s most recent moves to safer privacy controls, which he says is closer to the recommendation of Electronic Frontier Foundation’s Bill of Privacy Rights. The link is here.

Although EFF has provided some more “functional decomposition” of its privacy bill, it focuses the discussion in two big areas.

The last one, the right to leave, and Facebook’s provision of a zip facility to keep data, gets a lot of detailed refinement in recommendations, that would probably cause programmers a lot of tedium (but maybe not for those with Zuckerberg’s speed, as in that recent movie). But the more interesting part of the discussion concerns the ability to segment friends’ lists into separate partitions, and share or “publish” different sets of information among these, I suppose in a way that is reflected in the News Feed and Wall. The facility does tend to emphasize the idea that Facebook is turning back more toward actual social interaction --- however modeled in a digital media network – and away from broadcast publishing, which can be very useful for political organizing (especially overseas) but which raises serious “conflict of interest” or “implicit content” issues for people in certain jobs or personal situations. But that was Zuckerberg’s original intention – the information you share has something to do with the people you actually share it with, almost as a moral principal (and certainly as an element in the way you define system classes and objects, your basic OOP stuff).

PCWorld has a story today by Tony Bradley that summarizes Facebook’s changes, link here but puts it more in the frame of an aggressive, competitive business strategy aimed at Google. The article speaks of “cliques” of friends, which might be particularly suited to business (or marketing) as well as personal use.

Tuesday, October 05, 2010

Boston Globe will up the ante on requiring Internet users to pay for subscriptions

The Boston Globe will be joining the New York Times (2011) and Wall Street Journal (now) in requiring paid subscriptions for much of its leading-edge content. In the second half of 2011, it will bifurcate itself into Boston.com and BostonGlobe.com, with the Globe site having most of the globally relevant content. (Boston.com will focus on local news and sports.) Users will have to enter paid subscriptions to see any content here, where as they will have to register to see Boston.com content but not pay. People who pay for printed home subscriptions will automatically be able to use full content.

Wall Street Journal allows users to see abstracts and beginnings of stories but requires paid subscriptions for entire stories of many articles. Likewise, most medical and academic journals require paid subscriptions to see more than abstracts (for state-of-the-art content articles dealing with issues like HIV, H1N1, Alzheimer’s, and the like).

Bloggers generally find abstracts as sufficient links to document facts they are citing in their own postings. However visitors could find it impractical or unaffordable to link to sites for so many different papers in different cities, so news interpretation blogs could become less useful. Most visitors would be able to subscribe to the full content of one or two local papers near their hometowns, as well as perhaps a paper like the WSJ.  Perhaps newspaper holding companies would offer group subscriptions in many cities.

If more newspapers adopt a paid subscription model , the legal ante for “copying articles” or major sections thereof on blogs could increase, an issue behind the mass litigation by Righthaven.

The New York Times news story is by Tanzina Vega and appeared Sept. 30, 2010, link here on the NYT blogs ("Media decoder").  In 2011, this might be a paid story.

Monday, October 04, 2010

More on DMCA "copyright agent" for safe harbor eligibility; what about copyright and chess games?

Previously on this blog I’ve discussed the confusion as to who can qualify as a “copyright agent” under the “safe harbor” provisions of the DMCA. The best definitive document seems to be summary by the US Copyright Office, starting on page 8, “Title II: Online Copyright Infringement Liability Limitation”, at this PDF url. The safe harbor is offered only for four activities: “1. Transitory communications; 2. System caching; 3. Storage of information on systems or networks at direction of users; and 4. Information location tools. The last item would appear to include search engines. There are special protections or provisions to protect service providers from making a “hobson’s choice” between disclosing a subpoenaed identity and keeping liability protection.

Since the US Copyright office document is in public domain, it is well worth quoting one passage: “For purposes of the first limitation, relating to transitory communications, “service provider” is defined in section 512(k)(1)(A) as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” For purposes of the other three limitations, “service provider” is more broadly defined in section 512(k)(l)(B) as “a provider of online services or network access, or the operator of facilities therefore.” In addition, to be eligible for any of the limitations, a service provider must meet two overall conditions: (1) it must adopt and reasonably implement a policy of
terminating in appropriate circumstances the accounts of subscribers who are repeat infringers; and (2) it must accommodate and not interfere with ‘standard technical measures.’”

Corynne McSherry at Electronic Frontier Foundation (her article on “copyright trolls” is discussed in my Sept. 28 posting here) answered a question to me in an email about this with (in part) “It is true that the Section 512 safe harbors only apply to service providers -- the idea was to create protection for intermediaries. Those categories can be broad, but won't encompass everyone.” EFF tells me that it will develop (and presumably soon publish on its own site) a more detailed explanation for bloggers to see who could benefit from self registration as agents. But in general (and to bypass all the confusion on Facebook and various other sites pointing to USCO interim and amended registration forms, with fees), most people, it would seem to me, would need to be operating their own content-bearing servers to qualify. It would certainly appear that those who publish using only shared hosting (including using "native" Blogger or Wordpress) could not name themselves as agents. 

Remember, the safe harbor provision aims to control downstream liability so that the business models for service providers can work. In a practical world, at least until Righthaven and its “Nightbreed” minions came along, most copyright owners found that takedown notices were the expected and effective procedure (and indeed takedown notices were often abused). The Righthaven world is claiming that this is ineffective and that only punitive deterrents and the practical threat of large self-defense costs (“shakedowns” or even outright legal bullying) work. As with SLAPP, one wonders if this is really about just infringement deterrence or it is about silencing low-cost competition or detraction. On the other hand, Righthaven does have a valid “philosophical” point about the strict enforcement of property rights against potential infringement, which could matter in non-copyright areas (such as “implicit content” or “conflict of interest” ownership problems). (Note, as in the paragraph above: a few of the Righthaven defendants appear to have been using native Blogger and Wordpress and could not have made sure they would get safe harbor notices.) 

By the way, in perusing some old chess magazines today, I noticed on p. 26 of the May 2006 “Chess Life” a question and answer indicating that chess games themselves are not copyrightable, but annotations and analyses are. The writer speculates that most people who solve chess problems like to see their solutions quoted. I wonder, however about something this: someone watches a game at a non-rated 5-minute tournament at the local chess club or at a private home where someone comes up with an apparent refutation of some controversial line in some opening, and publishes the line in his own chess blog, maybe commercial because of ads. Maybe it’s his own defeat. Is this potential infringement, or just reporting of “fact”? For my drama blog, someone found the chess game supposedly played in the musical “Chess” and posted it in a comment on my Sept. 1, 2010 review. I also chuckle at another situation: a couple years ago, the New York Times published a picture of a supposed chess game being played by Mark Zuckerberg and another Facebook employee at the company, and visitors found that the published position could not occur legally. Some “i.p.” you don’t want to protect.

One could have a similar discussion of recipes, whether using gravlax or malfatti or anything else for people who really like to cook!

Marketers in trade group plan to offer voluntary "opt-out" tracking to web visitors: a "business model' issue for service providers?

A trade association of about 5000 advertisers has announced a voluntary “Self-Regulatory Program for Online Behavioral Advertising”, as explained here. (I’ve encountered relatively few domains ending in the “.info” tld.) There will be an icon, shown here (it is already legally trademarked with USPTO) which will allow users to opt out of behavioral tracking. That could lead to users seeing more general material or none at all from these companies in the future. The plans have been under discussion since mid 2009.

The New York Times ran a story on Monday, on p B8, by Tanzina Vega, “Ad group unveils plan to improve web privacy”, link here.

Some people are saying that this is not enough, and that government must do more to protect privacy. This voluntary plan may in part be motivated by the Boucher bill, discussed on this blog June 28, 2010.

It's likely that users with anti-spyware (like Webroot spysweeper) will notice fewer "spy cookies" being identified by scans.

But remember that advertising makes user-generated content and free entry on the Web profitable for service providers. It’s important even for webmasters and bloggers who do not serve ads (as at one time I did not, and still don’t on some content) to understand this. Without a profitable model, the opportunity for speech and debate from anyone could go away some day.

It reminds me of how people used to (and still) complain about commercials on broadcast TV, which are sometimes excessive (even on cable). It’s a bit much in movie theaters or in major league sports events where you have already paid admission.

Sunday, October 03, 2010

Images of people on the web and in blogs: What are the expectations of privacy (especially in public)?

Kathleen Parker has a piece in the Washington Post, Oct. 3, p A19, “Let’s try friending decency”, with link here.  The article does refer to Tyler Clementi’s tragedy, but at the end she writes “never publish or distribute images of anyone without his or her permission.”

I suspect that protesters at a rally want their images (and signs) distributed. When people are out in a public place, they have no expectation of privacy with respect to their presence or portrayal or ordinary behavior. That’s pretty much true in a bar or disco, too. Of course, there are issues. Someone in the military still might be discharged if a picture of same-sex dancing at a disco showed up on a blog. But there’s another issue here – germaneness. One problem, as Rand pointed out with the military back in 1993, some behavior, while not necessarily private, just isn’t germane for suitability for service or employment.

John Schwartz has a perspective on cyberbullying and the privacy expectations in the New York Times today, link here.

Picture: This may look like the "Solar Flare Disco" in my "Baltimore Is Missing" screenplay. Here, you can't make out the people, but on some other photos you can.

Saturday, October 02, 2010

"One Nation" rally: highly spirited, and gives one to soliloquy (as in Carousel)

I walked through the “One Nation” Rally in Washington, gathered on the Lincoln Memorial Mall around the Reflecting Pool.


I was thinking about the “paradigm” of morality that I grew up with in the 50s: If “I” didn’t step up like a man when the community or family demanded it, then someone else would have to make the sacrifice, and you can see how that made me look. This played into the issues of the day, for example the Vietnam era draft and deferments.

Then today, it seems as though the underlying message from both the far Left and far Right is, everyone has to have his own skin in the game before partaking of the public theater. There are still some existential challenges to “free entry” and our rights to speak for ourselves. One of the reasons that I entered the debate the way I did (with my “screed book” and Web 1.0 search engine exercise) was that I didn’t want to let some group talk for me. (There's a difference between "victimization" and "injustice" -- although, just like you can't go the speed of light without infinite energy, you can't have freedom and perfect "justice" at the same time!) I wanted to own the debate on my own welfare. But the debate spread concentrically to cover everything. Now, I find you can’t be a “know it all” without a real stake in specific other people. Something will be assigned to you, or even dumped in your lap. Your attitudes about “personal responsibility” and “consent” when you have to experience again what others have.

I heard Sharpton talk as I walked in the sunshine. This wasn’t a “Million Man March”; it was much nicer. It’s supposed to be an answer (or rebuttal) to Glenn Beck and the Tea Party but the underlying spirit was similar.


One appealing young man told me that there were only 50 “Al Qaeda” among the Taliban in Afghanistan. I doubt that’s true.

Friday, October 01, 2010

Supreme Court will hear a major First Amendment case in Phelps "anti-gay" protest case

Robert Barnes has a front page story in the Washington Post on Friday, Oct. 1, “Church protests at military funerals a free-speech test for the Supreme Court”, link here.

The (conservative) 4th Circuit in Richmond had overturned an award to the family of Albert Snyder against the family of Fred Phelps from Kansas for a protest at the veteran Synder son’s funeral in 2006 in Westminster, MD (still in the 4th Circuit). The protest had been based on the idea that the Armed Forces have “homosexuals in their ranks”, a laughable idea for a protest given the debate on “don’t ask don’t tell”.

The 4th Circuit said that it was a danger to free speech if the plaintiff could sue just because it disagreed with the message, no matter how offensive.

Perhaps a constitutional line is crossed when the message is intended to subjugate those to whom it is addressed, however.

Newsweek has a video about the case (10 min, not embeddable) here.