Monday, February 28, 2011

Righthaven Defendant in South Carolina countersues over the "domain name" transfer

A defendant in South Carolina originally sued by Righthaven is countersuing  in S.C., largely on the basis that Righthaven’s demands for domain name transfer are unsupported by copyright law. The action demands that all defendants from whom such domain transfer demands had been made. Steve Green has a detailed story Feb. 27 in the Las Vegas Sun here.  

Righthaven has claimed that the domain name seizure can be justified by theory of Equity, as a way to prevent future infringement.

The Righthaven Victims blog has called this the “Shock and Awe” counterattacks. You can follow this group on Twitter now here. The group says the Media Bloggers Association is now also assisting, although I can’t find any mention of Righthaven at MBA yet (there is still a lot of older material about the AP controversy there).

 

Sunday, February 27, 2011

NY Times reports that Google is tightening down on how its search engine treats 'riff raff"

The New York Times today ran a front page story by Clair Cain Miller, “Seeking to Weed out Drivel, Google Adjusts Search Engine”, about reported efforts by the search engine industry leader to improve the search engine placement of “quality” or “professional” content, and reduce the effect of paid placement and amateurism.  The link is here.  

I’ve noticed that many searches produce results where the “target phrase” appears in a category listing or forum comment and is not germane to the topic of the article selected. So this effort will help make searching for information more efficient in that regard. But what seems to be going on is an attempt to reduce the presence of web pages that are mostly links or reproductions of bits of content from other more original pages.

In the late 90s and early 00’s, before social networking sites became more important with Web 2.0, flat sites with straightline html content and little automated content (pulled off of databases dynamically) often placed higher, which meant that amateur sites often outperformed corporate sites with respect to some kinds of information. That has gradually changed since around 2003 or so.

In the late 90s, most literature on web programming advised webmaster to code metatags for the phrases they wanted picked up. This effort turned out to be largely unnecessary. Most larger services indexed sites with any substance without the need for application or special coding from web owners. Most of them warned webmasters against rigging, such as repeating the same phrases too many times.

But as noted Friday, the “reputation” of the speaker or content provider, outside of the content of a particular posting, is bound to become more crucial in future web presence environments.

There's another problem search engines could fix: semi-syndicated newspaper stories that come up first in searches ought to be the original (as with a NYTimes story), not authorized copies (or maybe unauthorized) in other newspapers. That only complicates the Fair Use and copyright debate (even in the Righthaven cases).

Google's own account of the change (dated 2/24), "Finding more high-quality sites in search" is here. The change affects about 11% of searches, and the posting mentions the Personal Blocklist Chrome Extension.

Friday, February 25, 2011

As business models move from "tracking", online and site "reputation" could become critical issues

As noted this week, there is increasing pressure on the Internet world not to track users or to base too much of corporate business models on visitor behavioral profiling.

As noted, much of the incentive for companies to offer users the ability to supply and self-publish content comes from this model, including its use in social networking sites. If behavioral advertising becomes less profitable because it has become less acceptable, companies would have to look for “other means”.  These could include trying to measure “self-publisher reputation.”

On my Internet Safety Blog yesterday, I noted how McAfee Site Advisor appeared to have suddenly marked most “amateur” sites (that had recently been “green”) as gray or untested again. I looked around at some of the other rating systems, including the “My Web of Trust” (MYWOT) plug-on for Mozilla Firefox.  I looked at my own for my blogs and sites, and even though I am marked green for “trustworthiness” consistently, I found that some of them were marked “yellow” for “vendor reliability”, “privacy”, and “child safety”.

Community-based rating systems like this would need to watch for "mutual admiration societies" akin to "link farming" and practices sometimes seen with "spam blogs" which have been a difficult problem for service providers since around 2004

All of these are calculated from visitor ratings, rather like starts on movie reviews on Amazon. I don’t expect anyone to log on to my sites, so the privacy seems irrelevant  -- but I would need to https anytime I decide to have a logon capability. I keep the content pretty much “PG-13” but I was a COPA litigant, and some people may not like some of my “subject matter”, however abstractly covered.  On the “reliability”, visitors could be referring to my now dated books (which are sold through Amazon, BN and iUniverse but not directly from the sites, which don’t take credit cards), or to the accuracy of the posted content, which I try to supplement with bibliographic links.  But I suspect some visitors rate text content on whether they “agree” with it socially and politically.  The yellows tend to occur on blogs with more controversial postings.

The general impression is that site safety is about whether it is free from malware.  That is certainly a big part of it (“trustworthiness”),  but other issues like the “reliability” of content or products sold can also be rated, as well as secure access (https availability) and freedom from “surprising” adult content.

I still wonder if we could he headed toward a world of “online reputation scores” a bit like FICO credit scores, except it would be difficult to pin down how they should be calculated.  The safety (freedom from malware) and reliability of a person’s offerings on the Web could definitely come into play, and I suppose they would have to be calculated from a number of rating services (which makes McAfee’s sudden graying of site ratings troubling).  It’s important to note that most anti-virus companies check sites against “blacklists” of sites known to be associated with malware, spam, or sometimes otherwise socially unethical behavior (see yesterday’s posting about one particular company and “reputation analysis”).

It’s prudent for bloggers and webmasters to start looking at how their sites are regarded by all these facilities and Internet security companies.  Otherwise, as business models change, they may find themselves without hosting  some day.

So Michael Fertik’s concept of online reputation (and his company Reputation Defender) is certainly expanding.

Thursday, February 24, 2011

Righthaven has its own site! (Whee!); Victims' blog lists legal resources; DC news site falls on hard times with layoffs

Well, Righthaven LLC finally has done what any amateur self-publisher did by around 1997, set up its own domain and website.  It had to happen.  It calls itself (“s’appele” in French) “The Nation’s Pre-Eminent Copyright Enforcer”.   Steven A. Gibson even gives his business “PII” on the site, but not much else. (Note that McAfee Site-Advisor rates Righthaven as yellow based on "reputation analysis". Bizarre!  I have a posting about SiteAdvisor today on my Internet Safety blog.  I took out the link here as a result of that [it can affect my rating] but it's just spelled "righthaven.com"; McAfee says use with caution!) 

In the meantime, the Las Vegas Sun (don’t confuse this with the Las Vegas Journal Review; it’s the “other” Las Vegas newspaper) has a "roundup" Feb. 21 with little odds and ends about the Righthaven mess, link here.    For one thing, Righthaven apparently let its Nevada business license expire Jan. 31.  Technically, Righthaven belongs to Net Sortie Systems LLC.  It also has a business partner in Little Rock AR (Clinton country!) “SI Content Monitor”, part of the Warren Stephens group of companies.

Green reports that a number of suits have been settled with terms not disclosed to the press. That’s discouraging, people giving in.

However, Nathan and Linda Muller (in Pennsylvania) got Righthaven to drop action against them because they had sold the website “Wehategringos” about illegal immigration, and that the new owners had posted the supposedly infringing material.  But the couple would have had legal expenses defending itself anyway. So even after a site has been sold there is practical risk to original owners, who may not know what new owners may do.

There is now a page on the Righthaven Victims blog which lists five legal resources for defense, including Randazza  (link, note its First Amendment reference ) and Woods Erickson (link ) as well as EFF.
Whereas the direct targets for the Righthaven suits are supposed (and maybe actual) copyright infringements, the practical concern may have more to do with low-cost competition in the news business from what Andrew Keen has called “The Cult of the Amateur” (Book review blog, June 26, 2007).  Establishment news businesses keep having a hard time. For example, Allbritton Communication’s venterous news site “tbd” , launched in August 2010 (Arlington VA) will have mass layoffs as operations move back to station WJLA and become a local entertainment site.  (Washington Business story by Jeff Clabaugh here). 

 I have mentioned the ambiguity of the DMCA Safe Harbor provision with respect to Righthaven to my own Congressmann (Moran D-VA) in a recent email, and will be following up in more detail soon. Congress had better get back to work!  But one complication is this: recently, someone asked me to publish an article by her on 9/11 responders and their health on another of my blogs.  I cannot verity that the source did not come from Stephens or a similar source, and I do not have Safe Harbor downstream protection because I cannot qualify as a service provider, unless I set up a mechanism to accept other people's submissions in some volume and regularity. That still needs to be clarified. (In that case, I wrote my own summary of what she sent me, to play it safe, and posted on the Issues Blog today.) 

The Righthaven lawsuit count remains at 241, no new cases since Feb. 7. 

Picture: Pentagon City, Arlington VA. "Be brave and shave!".  Barbers' chairs are dangerous!

Wednesday, February 23, 2011

New "do not track" bills introduced in 112th Congress (by Democrats); what does "track" really mean?

Peter Eckersley has an important piece for Electronic Frontier Foundation, “What does ‘track’ in “do not track’ mean?”   He proposes that most users wouldn’t object to limited tracking in some circumstances, and mentions some concepts like “1st Party Website” (what you see when you run the mouse over a link).   He also supports the idea of an industry practice for allowing users to transparently limit tracking; he mentions “Tracking Protecting Lists”, “Adblock Plus”, and “EasyPrivacy”. The link is here.

He also discusses some important legislation introduced in the 112th Congress. There’s been talk that a pro-business GOP-run House won’t support concepts like last year’s Boucher Bill, but Jackie Speier (D-CA) has introduced a bill, HR654 (in conjunction with 653), the “Do Not Track Me Online Act of 2011” that sounds like it means business.  Her link is here.     

You can also look up the bill at Open Congress here, or Govtrack (website url) here

The Rush bill (Bobby Rush, D-IL) seems more moderate, story here

What I think people don’t see is that the business model that makes user-generated content profitable (and that indirectly exports “revolution” overseas as a result, which we think is a good thing) depends on a certain “openness” of individuals to the outside world, outside of what is mediated by their immediate families or home communities.  This is a generational thing, which helps explain why Facebook has been so successful.   But it couldn’t continue if legislated away, to the tribal and “family loyalty” standards of earlier times.

Of course, the same individualism has made many people less willing to accept telephone and door-to-door solicitations and to buy from "professional salesmen"; but the analogy between "do not call" and "do not track" sounds false.

Tracking should be based on IP addressing only (with analogy to physical postal addressing in the "real world"), and separated from PII (personal identifying information) as much as possible.

I have an important story Tuesday on the Internet Music Score Library Project (IMSLP) based on a New York Times story yesterday, on my dramas-and-plays blog.

Picture: Note the red fox (near the wood chip), watching me. Foxes are dogs with cat personalities!

Tuesday, February 22, 2011

Washington Times explores Sherrod's libel case against conservative blogger Breitbart

The Washington Times has a comprehensive discussion of libel on the Web in an article Monday Feb. 21 by Ben Conery, “Sherrod’s Suit vs. Breitbart tests libel in era of Web”, link here.

In 2010, Mr. Breitbart, a “conservative” blogger, posted a video on YouTube excerpting a Sherrod speech (to the NAACP)  excerpted in such a way as to suggest that Sherrod had engaged in or supported reverse discrimination. Sherrod lost her job at the Department of Agriculture (she received and email while driving him ordering her to resign immediately, and was offered it back when the ruse was explained, but she didn’t want it. 

Theoretically, there may have existed copyright questions, too. But here Sherrod maintains that Breitbart intentionally defamed her by taking her remarks out of context and not showing the entire speech if he were to show anything at all. The libel claims rather resemble those of the “false light” concept in privacy law. Had her entire speech been shown, it would not have been misleading. 

In the United States, "truth" is a definitive defense against a libel claim, but falsity may exist when an excerpt leaves out material (like a conjectural conjunction "if") in such a way as to mislead. 

Also relevant is the question as to whether Sherrod is a “public figure”.  If so (and she is), a libel action would have to meet a higher standard, of actual malice and reckless disregard for the truth. (Along these lines it’s interesting to ponder possible libel action against Lifetime by the Amanda Knox family, discussed in the movies blog Feb. 21).

The “public figure” concept is itself complicated by the Web, because almost anyone (like me) can become a public figure “without competition”.

I’ve also had the issue of “context” in my own “self-libel” case that I describe here July 27, 2007.  


Monday, February 21, 2011

RIAA explains its strategy now on illegal downloading, dives its side of the "Download Martyr" case

The Minneapolis City Pages has published a reply from the RIAA (Recording Industry Association of America) in its five year battle with Brainerd, MN resident Jamie Thomas-Rasset, who was recently assessed a whopping $1.5 million judgment by a Minneapolis jury after she refused a “shakedown” settlement when she maintained she had never downloaded the songs.  City Pages had called Thomas-Rasset the “Download Martyr”.

The RIAA has a reply where it maintains it had evidence that she actually had contributed knowingly to the infraction, here.  It’s significant, however, to remember  that parents could have been responsible for kids’ downloading, or that PC owners could be held responsible for activities on their computers by visitors or, say, domestic employees.  It’s a little unclear what would happen if a Wardriving snoop used a home router for illegal downloading, or a domestic employee brought a laptop and used your connection.  It’s interesting because sometimes homeowners are expected to provide Internet access to live-in nannies or caregivers.

The RIAA says, however, that it has moved away from individual lawsuits to working with ISP’s to warn users and cut off service to repeat infringers.  There is still a presumption of responsibility for what goes on in your own home or on your own ISP account.

There is also a story of piracy in Europe by using Trojans to infect the computers of record companies to illegally download songs, in Info Security, here.
Update: Feb. 23

The Justice Department has filed a brief supporting the huge award against Thomas-Rasset under the "Doctrine of Remittitur", according to a Digital Media Wire story by Mark Hefflinger, here.  I naturally wonder if "remittitur" could be exploited by Righthaven.

Saturday, February 19, 2011

Be careful with work-related use on your own computing resources

As I noted on my “IT jobs” blog, it’s become more common for people to get legitimate work-at-home jobs, which may be hourly, commission, or be paying them as independent contractors. Some of these opportunities are predicate on people having their own computers and broadband connections and using their own cellular service, and sometimes other services like fax, as for signature paperwork.

Also, more of them are becoming predicated on the worker’s using social networking sites for work promotion purposes.  Perhaps this comports with a nouveau theory that a person with integrity has only one public “identity” that integrates work and personal (hence the end of “don’t ask don’t tell” thinking).  No double (or multiple) lives anymore; no schizophrenia.

It’s not hard to imagine situations where a person could get into trouble with activity authorized by an otherwise legitimate employer.  For example, a person might have only a “home” license for Microsoft Office, but if he or she is using it for work, a Professional or Business copy might be required to avoid copyright infringement.  (Conceivably that could apply to bloggers who earn ad revenue, too.)

A person might be expected to mass “mail” through an ISP or Facebook in order to get leads for a commission driven business (like an insurance agent), and get in trouble with TOS violations for generating “spam”.  It might happen with work-related blogging if it involved anything viewed as “link farming”.

 Generally, the individual would be held responsible for violations individually and could lose accounts or access even if done for the benefit of the employer.

Or an ISP or cellular service might expect to gain a subscription fee from a separate account in the name of the employer, in some cases. 

The possibility that work-related Internet use at home could lead to legal or TOS issues with service providers ought to be more carefully explored. This discussion inverts the more common problem of personal use of computing services at work. 

(See also posting on IT jobs blog today.)

Thursday, February 17, 2011

Library of Congress website can be used to track Righthaven "purchases"; American Justice admits champerty is probably legal; Congress needs to fill DMCA loopholes


A posting on the “Righthaven Victims Blog” provides a writeup on how to look for all the “intellectual properties” that Righthaven has so far “purchased” and registered with the Copyright Office.The link is (website url) here.  The basic idea is to go to the US Copyright website, public catalog page, type in “Righthaven” as a “keyword” and get a list of all articles.   Right now there are 151 such articles.  The blog posting notes that as of yet there is no automated program to scrub a site (or Blogger or Wordpress account) for these articles.  Somebody could make money by writing one.

American Justice has an article, Feb. 13, “Righthaven is a Black Eye on the Law Profession”, link here.     According to the article, Righthaven’s practice is probably legal under the letter of the law, and Congress should fix some serious loopholes in the process, especially the Safe Harbor mechanism. Otherwise suing blogger for “shakedown settlements” could become a “cottage industry” and make them uninsurable.

The article mentions one of the victims, Uswgo, which seems now  to be back up with a discussion of Righthaven, here

As of this morning, Righthaven has 241 lawsuits in three states. The most recent was filed Feb. 7.

You can search the Copyright Catalog for my works under name “Boushka Bill”.  It "still" works.

 Picture: My third grade report card.  More about that later.  

Wednesday, February 16, 2011

English teacher in PA suspended for "anonymous" blog critical of students and school

An English teacher, Natalie Munroe, in Doylestown, PA (Central Bucks East High School), blogging unfavorably about her student and school under the pseudonym “Natalie M”, has been suspended with pay, after her blog was “outed” and went viral.  She did have a picture of her. It was up for over a year before being found, because search engines would not have found her name.

The news story is by Andrea Canning and Olivia Katrandjian on ABC “Good Morning America”.  It sounds as if she might have been writing about identifiable students. One of her comments was “I hear the trash company is hiring.”  (Remember “Trashcan Man” from Stephen King’s “The Stand”?)

The blog asked "Where are we going and why are we in this handbasket?”  Actually, I see that's the name of her blog.  My aunt used to say that!  

Her lawyer says she will litigate on First Amendment Grounds if fired.   ABC also offers a link here to another video “The dangers of Blogging.”

The URL for her blog is now easily found, here.  She gives a vivid account of her suspension ("Bloggate: Day 1, etc.). She never gave her last name, and never mentioned the school, and the school (or school district) did not have an employee or teacher blogging policy. 

 

A site called “Philly Burbs” and “Intelligencer News” has a story “Blogging teacher blogging again”, story by Christina Kristofic, here. There are several older stories. 

Again, my own personal experience with this problem as a substitute teacher is detailed here July 27, 2007. Since my incident occurred in 2005, it really was too early for blogging policies or much awareness of social media. Remember, Heather Armstrong's doocing had occurred back in 2002!

Picture: Dover PA , where there was a controversy over creationism or “intelligent design” in school curriculum in 2008.

Tuesday, February 15, 2011

NRLB reaches "weak" settlement in case of med tech fired over social media posting


The National Labor Relations Board reached a settlement early February with American Medical Response (in Connecticut), which had fired a technician for discussing the company (unfavorably) on Facebook. The company agreed to amend its policy to allow employees to discuss working conditions online in public spaces. But the settlement does not set a legal precedent, since it ddn’t  go high in the process. And there is concern that it means little for non-union environments.

Workforce Management had the story here.  There have been many instances of people being fired for what they say in blogs or social media, especially about their workplaces and their stakeholders (including customers).



Monday, February 14, 2011

What's the point of Righthaven's "buying" articles before mass litigation?

As I ponder the whole mass litigation reports of Righthaven’s activity reported here, I wonder, what is the real point of buying a “gone viral” article first before suing?

It seems to me that a newspaper like the Las Vegas Journal Review or Denver Post could simply make arrangements with a law firm to file litigation, without selling ownership rights.  The RIAA artists didn’t have to give up ownership for their litigation against downloaders, did they?

Maybe the “purchase first” speeds up the “process” and saves money somehow, for the plaintiffs.  But it’s beginning to sound very risky – for the plaintiffs.

But it would seem that Righthaven (and all its newspaper customers) are opening themselves up to much stronger fair use defenses. If a newspaper has little prospect of making money off a story or image without a “lawsuit mill”, then one of the pllars of fair use, the effect on the original market, is affected.

So far, the judiciary hasn’t given a clear idea as to whether it will accept “champerty” and we don’t know how appeals courts would look at the issue, much less the US Supreme Court.  The “frivolous” nature of these suits and the obvious intention to shake down “low cost competition” could weigh heavily at the appellate level.   

(See also Jan 22 posting.)

Picture: A shadow out of "Strangers on a Train" perhaps, or film noir.  

Friday, February 11, 2011

Webmasters and YouTube posters would do well to learn about how royalty rights management works

Thursday YouTube announced an agreement with a company called RightsFlow to assist in licensing, royalties, and music rights management. The story by Mark Hefflinger on Digital Media Wire is here

The RightsFlow site is worth visiting./  It describes itself as a "licensing and royalty services provider".

Yesterday, I made my first video with my digital piano. I don’t think it needs royalty management yet (rather in the vein of "Teaching Little Fingers to Play"). But I do have a large collection of handwritten composed classical music that I want to get entered, perhaps requiring a MacIntosh with Logic. 

Filmmakers and webmasters might do well to become familiar with how royalty services companies work, given all that is “going on” these days. 
video

Thursday, February 10, 2011

Colorado site suspends access out of fear of frivolous lawsuits from Righthaven; Another film joins US Copyright Group's mass suits against BitTorrent downloads


"The Expendables", an action film distributed by Lionsgate last fall, has joined the list of films (which includes Summit’s “The Hurt Locker”) generating mass litigation against some BitTorrent users from the “U.S. Copyright Group” of Dunlap, Grubb & Weaver.  In fact, about 6500 users were targeted, according to a Digital Media Wire (website url) story by Matt Hefflinger.   These are “John Doe” suits (identified by IP address) that usually result in shakedown offers for quick settlements.

In the meantime, the Righthaven count is now up to 241, with more filings in Colorado, and some more bizarre twits.

A smaller news site called the Rocky Mountain Right has shut down temporarily to expunge not only stories or quotes but even any links to the Denver Post. It says it must protect itself from the expense of “frivolous lawsuits” even when within Fair Use as the law designed it. This sounds like giving in to bullies or to the Mob. The link (“access denied”) is here.  Rocky Mountain Right says it has not (yet) been sued by Righthaven.

Tech Dirt reports that an entity with a valid DMCA safe-harbor registry, Pamajas Media, was sued, in this story   The theory may be that the supposedly infringing article came from an employee rather than an outside user (where the downstream liability law actually works), which could mean that someone who invites others to post and somehow registers as a “service provider” might not be protected by safe harbor notification for his own postings. TD says that Righthaven might encounter a fair use "smackdown" in court because the article was mainly commentary about a photo (which admittedly has appeared embedded or reproduced in the original article), although copyright fair use claims may be more difficult with images (and music) than with text. 

In fact, the current Pajamas Media story (here) seems only to link to the image. 

And the Las Vegas Sun reports that "white supremacist" David Duke is a defendant.

Update: February 11

MIT Technology Review has an article by Christopher Mims, "Post a Copyrighted Picture, Face a $150,000 Lawsuit; Righthaven waits for content to go viral, then buys the rights to it and sues everyone in sight", link here. The article also mentions the shakedowns of posters and comments, and says that the company buys up the article to sue after it goes "viral" on the web.

Update: February 16:

EFF posted a tweet about a BitTorrent Lawyer story about the apparent dismissal of all or most of the US Copyright Group cases on jurisdictional grounds, story here.  I'll have more on the theory involved later. It might even matter to Righthaven. 



Wednesday, February 09, 2011

Internet user liability for Wikileaks publication is at issue again; Mozilla offers new "do not track" in Firefox Beta 4

Today, two different issues that could affect bloggers caught my eye quickly.

The first issue has to do with "blogger journalistic immunity", or how much legal liability bloggers might have for publishing or knowingly linking to materials leaking classified national security secrets. 

A federal court in Alexandria VA will hear a case around Feb. 15, 2011, to determine whether the Justice Department can gain identifying information about Twitter users who have posted Wikileaks contents.

The legal procedures at issue are complicated.  Judge Theresa Buchanan’s Dec. 14 order was a “2703(d)” order which gives law enforcement access to ISP or service provider “relevant and material to an ongoing criminal investigation”.  The CNET story by Declan McCallagh (featured in the Jan. 25 panel reported here Feb. 6) is (website url) here.

The legal stakes are important because they could be construed as meaning that someone who publishes leaked information (a newspaper) is liable along with the cause of the leak, and idea supposedly put away by the Pentagon Papers case.  Because of the asymmetry involved, it seems as if the government wants bloggers and social media users treated differently from the journalistic establishment.

The second issue involves the momentum of browser vendors to give uses a "do not track" option, not entirely welcome by the Internet publishing industry (and "amateur service provide platforms") as a whole. 

 Mozilla, in Firefox  4 Beta, is releasing “do not track” capabilities to users, who may not want to receive ads according to behavioral profiling.  The press release is here.

Sid Stamm has an important blog post on “Extreme Geekboy” here.  The discussion is complex, and it appears that it will take a while for it to affect home users’ experience and some cooperation from advertising. It’s important that the “free entry” Internet model is based on the profitability of aggressive advertising, as we’ve noted before. 

Update: Feb. 16

The Washington Post has a story  by Dana Hedgpeth today, "Wikileaks, free speech and Twitter come together in Va. court case, here.  Judge Buchanan agreed to rethink the case. Attorneys for defendants agree that if the government can covertly seek identities of posters, all free speech on the Internet is compromised, and that the United States would be guilty of the same sorts of repression as those practiced in Egypt. 

Monday, February 07, 2011

To what extent does the "morality" of behavior depend on choice?

I’m not modest about my own story, as I think I achieved something, with a great deal of irony along the way that makes for a plot comparable to that of any good novel. Specifically, I believe that I played my own unconventional role in the repeal of “don’t ask don’t tell,” and this led me, somewhat concentrically, to my own style of journalistic innovation, putting me on the stage of many battles over freedom of expression on the Web today.

But there has to be a point in telling one’s story. It’s new to viewers, and not part of an obvious entertainment franchise. I am motivated, perhaps driven, to explore publicly why at a few critical points of my life, my “freedom” was intruded upon, interfered with. What did others really want from me?  I can look back over decades of teen and adult life and imagine what others would say I should and done and why they would say it, but what does it add up to?  Inductive reasoning is inherently dangerous. It’s not sampling.  What can others really learn, of general nature, to apply to their own situations?

When one says he was put upon or “victimized”, he must be able to characterize what he wanted, to say what he lost.  To say that there was a real “loss” is to presume that his goals had some moral legitimacy.  Right there, one encounters a question (yes, one echoes Mark Zuckerberg’s famous line “Is that a question?”)   To what extent does a person have control over his own goals, and how much of his purpose should be integrated with or mediated by the needs of the group?  (We really find that in the military, don’t we. Les Aspin said so in 1993 when dealing with Bill Clinton’s proposal.)   On the other hand, we have a debate over conscious choice.  The Left, in particular, tends to argue that people are “born” the way they are, as if this eliminated any moral consideration over their actions because there is ultimately no choice. The libertarian position is that Choice is Good, but that one has to account for the outcome of Choice (and that’s a kind of political “Axiom of Choice”).

In 1997, when I published my first “Do Ask Do Tell” book, I accepted “absolute personal responsibility” as a postulated requirement for maximal personal freedom.  That fit well with libertarian-oriented reporters (John Stossel) and politicians and businessmen (Steve Forbes and now Donald Trump), and with a certain kind of objectivism, even traceable to Ayn Rand, that sit well with some parts of the modern gay community (such as Gays and Lesbians for Individual Liberty).  It even made it into Southpark (“Big gay Al”).  In time, as I lived past 9/11, my own layoffs, and then an eldercare situation, I certainly came to question the limits of individualism, particularly its “sustainability”.

Nevertheless, anyone forms a set of goals and expectations that have legitimacy at some level in the personality. If those are taken away or compromised by others, there is a problem. And it is particularly an issue for those of us who are "different" and that others perceive us as cheating or gaming their system.

My goals had a lot to do with individualized self-expression, which had grown in music, and spread to other areas (writing) and which also intermixed with my interpersonal “needs”.   When all is said and done, I’m struck by the idea of a “social contract”, which would stipulate the rights and responsibilities of individuals as members of their families and larger community and social groups, outside of what is normally “measured” by a fiat market economy.  Starting sometime in the 1960s, there developed an increase in the expectation of individual rights – call it “individual sovereignty” or “personal autonomy”, centered around the idea of “private choices”.  Since about 2000, particularly since 9/11 (and also since other catastrophes like the financial bust in 2008), I’ve sensed a backpedaling from this trend, a sliding back toward what had been older social norms, as in the 1950s, with which many of today’s young adults (the disco crowd) are not very familiar.  
In considering what a go-forward “social contract” might look like, I’m struck by a few major points:

First, many people have a need to see their own belief systems ratified by the behavior of others. This is particularly true of religious fundamentalism (in any faith, not just radical Islam or the extreme religious Right in our country). They feel  that if others are allowed freedoms denied them, their own lives and personal commitments lose the meaning necessary for sustainability.  This observation bears on the durability of traditional marriage.

Second, many people do benefit from the unseen sacrifices of others, both in previous and current generations.  “Fairness” (or “absolute justice”) ideology sometimes demands the forced sharing of risk, sacrifice and hardship, as with the military draft in our own history, or the Chinese Cultural Revolution of the 1960s when carried to logical extremes by Chairman Mao.  Today, the concern can show up in calls for mandatory national service.

Third, we’re faced with concerns about “sustainability” that earlier generations never encountered. A lot of this has to deal with the environment and climate change, more of it has to do with debt, but the most striking part has to do with population demographics.  Sometime in the 70s or 80s, it had become customary to think of having children as a completely private choice, morally significant only in that one had to follow through with that choice when made (support one’s own children, preferably in marriage).  But now we have a burgeoning elderly population needing care from those with little such interpersonal experience. In general, it’s no longer morally acceptable for someone to maintain that he won’t know what’s wrong after he (or she) has passed away.  Everyone should have a stake (or experience being a "stakeholder") in what will follow his or her life, before complaining or being heard from.  We can call the new concern “generativity”.

And Fourth, we have a Fundamental Problem about just how separate we should see or experiences ourselves as.  Sometimes the goals of others in our communities and our families are just more encompassing and “real” than those of our own.

This comes back to what “happened to me.”  Is it about my sexual orientation?  It sounds like that’s a “No” because the music seemed to appear first in my life as an issue. But there’s no question that my own expressive goals and intertwined  (in areas of subsumed or imputed meaning) with what “properties” of others “turn me on” and, just as significantly, repel me or drive me away.  Sometimes I have been called aspie, or schizoid, and others accuse me of running from “real life” to a world of quasi-narcissistic fantasy.  There’s no question that some of the worst of the incidents in college years had to do with the desire of others to see me open to having a family and the same responsibilities that they had (but not exactly by “choice”).

All of this suggests a “chicken and egg” problem.  When does a responsibility for “faithfulness” start? Is it when one “chooses” to have intercourse, and “risk” having a child or intentionally have one?  A better question seems to be, where to “responsibility for others” (not just self) start?  Sustainability concerns seem to take this beyond the narrow idea of choice. It’s more that everyone has a moral responsibility to meet the real needs of other people, and be open to some level of connection from or with them, and to develop the skillset necessary to support sociability, even at some loss to one's own purposes. Parents have the right and responsibility to impart this on children. Indeed, family cohesion transcends choice; not only is this obvious now with eldercare, but it appears in other scenarios like those in movies like “Raising Helen”. Parents expect siblings to back each other up, even though sibling relationships don’t occur from one’s own choice, but from the choices of one’s own parents. This argues for social structure (familial and political), and in the past it was leadership that resolved political issues; today much more of that resolution capability rests with individuals (which relates to the journalistic innovation that I mentioned at the beginning of this piece). That added individual capacity (“free entry”) is at some risk today, and that concerns me because social and family structures are always vulnerable to corruption otherwise, leading to the moral and political problems for familiar to us from the past (including racism and tribalism).

In my own history, “upward affiliation” rears up as a moral issue.  It was good to like or love people who seem “good”, but that raises the old problem of “the knowledge of good and evil.”  Logical consistency means that one retreats or avoids people who are not “good”.  But yet, almost every religious tradition has to deal with complementarity, that people back up one another and that everyone has need.  (Vatican anti-gay teachings rest on this point.)   Christian theology of Grace seems to play with moral “double standards” and that has always perturbed me.   In fact, it seems to me in the Christian world it would logically be very hard to predicate one’s well  being on what others do, but that is how the “Religious Right” seems to behave.  

I’m struck by how the Internet age (and the new openness and sharing – the Facebook Effect) has magnified “upward affiliation” which used to be protected by narrower and older versions of privacy as they had developed in the 1970s.  Now it seems as though this psychological process raises real existential questions about one’s intent, particularly when one is challenged by others (as in eldercare or other situations of “need”) to become more emotionally receptive, and be willing to step in and function as a role model, regardless of choice.  To refuse to do so when implored now gets taken as hostility; benign neutrality no longer plays. After all, "upward affiliation" wouldn't develop in someone who had been able to perform "in the community" according to all required social norms.  "Democracy" gets linked to complementarity and a "love everybody" system of values.  This is what I had to deal with during the last months of my own mother’s life.

(See also the "Bill retires" blog Feb. 9 for coordinated post.)

Sunday, February 06, 2011

Homeland Security official thinks linking to copyright infringing sites is grounds for your own site to be shut down

Tech Dirt has a disturbing (or perhaps amusing) story of an interview with a Homeland Security official James Hayes, who somehow thinks it’s illegal to link to a copyright- infringing site.  This is with respect to COICA, but it’s as if Righthaven could now go after anyone who had linked to one of the infringing stories of its 240 or so defendants in three states.

The link (at my risk, I guess) to the story on the “seized Domains” is (website url) here.  

I remember the concerns about linking to “harmful to minors” material back in the days of COPA and even the old 1996 Communications Decency Act (minus Section 230).

Homeland Security is moving to where it deserves to live -- on the grounds of old St. Elizabeth's.  

Also, there’s more talk that people who spend all their time on social networking sites are more alone together than ever. Time for some parties (like last night). 
Update: Dec. 6, 2011

The question of links has come up again with Protect-IP and SOPA (see other postings). Some legal commentators defend embeds on the theory that they are "just links".  Another good question would be whether a link that intentionally skips an introductory ad (by including some javascript code in the link) could be perceived as infringing.  There will be more about these possibilities in later posts.  




Saturday, February 05, 2011

"Next Digital Decade" conference in DC hits Internet "exceptionalism", examines future of Section 230

The conference held Jan. 25 at the Washington DC Hyatt Regency, The “Next Digital Decade and Tech Freedom Launch Event,” is available online as five videos: a Fireside Chat with an FCC official (reviewed on the Network Neutrality Blog), a “Welcome and Interview”  (or an “Introduction and Allegro”) with Declan McCullagh (CNET) and Berin Szoka, which predicted some pessimism as a force that we could use, especially the anti-tech writings of Andrew Keen (“The Culture of the Amateur”, reviewed on my Books Blog June 26, 2007); and three hour-plus panel discussions.

The first panel is called “Internet Optimism, Pessimism, & The Future of Online Culture”, with Berin Szoka of Tech Freedom, Andrew Keen, Adam Thierer (Mercatus), Ann Bartow (South Carolina School of Law), and Frank Pasquale (Seton Hall Law School).

Andrew Keen denied he was against technology, but spoke for the need to maintain a professional class of media content creators, publishers and distributors; not everyone can become a star movie director.
Professor Bartow said that women were less active in the current debate of Internet law than they had been during the 90s.

There was also discussion of “net loving pessimism”, and information “over-abundance”, which is a tremendous flip for young people compared to past generations.

The second panel is called “Internet Exceptionalism & Intermediary Deputization”. The moderator is Adam Thierer; the speakers are Dr. Eric Goldman (Santa Clara Law School), Josh Goldfoot, Dr. H. Bryant Holland (Texas Wesleyan School of Law), Dr. Mark McCarthy (Georgetown University), and Frank Pasquale.

The term "exceptionalism" refers to proposals to require intermediaries (ISP’s and publishing platforms) to monitor users or accept downstream liability for them in some cases.  There will be a major conference on proposals to limit Section 230 on March 4 (I’ll have to get the details). The comment was made that Section 230 (of the 1996 Telecommunications Act) does encourage innovation. In the absence of tort norms required of intermediaries, these providers will encourage users to develop their own social norms.  There was talk that there should exist and Internet Regulatory Council for intermediaries.  

There was also discussion as to whether the Internet world was better off with relatively few large and trusted providers (Google, Facebook) with voluntary standards, rather than fly-by-not cesspools.  The smaller number of companies were seen as de facto gatekeepers with whom ordinary people have to work.  The panel discussed the difference between having the ability to speak publicly (with free entry) and actually gaining an audience.

There was an idea that Section 230 should be examined in detail, with “knowledge” as the breakpoint in a tort situation where there might be intermediary liability. A “Public Utility” model (Frank) may lead to monopoly and paternalism, and some laws may actually enhance freedom.

Examples of execptionalism were suggested. Could advertisers (as opposed to ordinary speech) invoke intermediary liability (Craigslist)? COICA was discussed, with its panoply of parties (like credit card companies) potentially on the hook. Trademark liability was mentioned as possibly falling outside 230 now.  COICA “blacklists” could provide the “knowledge” that triggers intermediary liability.

The third panel is called “Who Will Govern the Net in 2020?”, moderated by Berin Szoka, with Dr. David Johnson (New York Law School), Dr. Milton Mueller (Syracuse), Shane Tews (VeriSign), Chris Wolf, and Hogan Lovells.   The question of exceptionalism, “Is the Internet different” continues.  But web users could find themselves affected by the laws of other countries besides those they live and work in. 

There was constructive discussion of the problems with hate speech, civil behavior, and even anonymity and multiple identities.  There was also discussion of copyright, and a comment that some copyright owners had behaved boorishly, carrying "rent seeking" behaviors to extreme. There was also discussion of "policy competition". 

There was some healthy skepticism about some of the apparent "internal contradictions" in libertarianism in the conference. 

The link is here.



Friday, February 04, 2011

Sports owner against a local free newspaper in a test of libel law; who are David and Goliath here?

Washington Redskins’ owner Dan Snyder has sued the Washington City Paper for defamation and libel regarding some articles dating to last fall. ABC affiliate WJLA has a video interview (not embeddable) (website url) here  (By the way, WJLA, as "TBD", seems to invite neighborhood reporting by bloggers.)

The City Paper has a web link for its own Defense Fund here. The story series had been called "Cranky Redskins Fan's Guide to Dan Snyder". The appeal reads "We think the value of our paper will survive this lawsuit." It's scary that the paper thinks it has to say that. 

The suit does highlight the risks of smaller publications and probably blogs when they go out on a limb. In this case, it seems that there are real questions as to how the “Opinion Rule” could apply as a defense. In the US, factual truth is an absolute defense to libel (less so in Britain, inviting the problem of libel tourism, which the British Parliament is said to be addressing).

Here’s Huffington Post’s account (link). Snyder at one point said he just wanted an “apology”. 

The City Paper says, Snyder doesn’t  get to pick his own sports reporters (like Mubarak does in Egypt). And he doesn’t get to pick his bloggers.

It’s pretty hard to envision mass litigation with libel. 

Thursday, February 03, 2011

Can one return from the other side, after making an inventory of "regrets"?

I suppose “anyone” could identify a number of moments in his life where he (she) regrets some instance of personal behavior. 

The 90s film “Reviewing your Life” comes to mind. Imagine one being in some sort of cell where he is being “interviewed” (as in an Australian indie film “The Interview”). The interviewers could come from the cops, an employer, a slow-motion speed-dating game, or the Heavenly Host (comprising permanently Perfect People).  You come to terms with what made you tick, and with the fundamental indestructability of your own chain of personal consciousness, for which you are held responsible. But if you get to go back, and tell people what’s on the other side (or share it with some intergalactic form of Facebook), you’ve enjoyed something for the last time. What makes you tick must change. Your motives must change.

Perhaps your future consists of movie out of a cell (or an endless maze or tunnel), back to a dorm-like setting, where you will again enjoy water, and finally food, even if just pea soup at first. Finally, you find a room with a window, and with star-rise, you look out on a forest where the plants are darker than on earth, rather like those in AMC’s pre-feature outdoor theater. You know you’re on another world, and you might have some sort of a future again. Slowly, the right to make decisions will return.  Will you let them take apart your body and disfigure you, put you in the Zipper Club?  Come on, you haven’t liked your legs for decades.  But fess up, this is the Purification.

I could look back over four or so decades or adult life, and pick out maybe eight specific occasions where I deeply regret how I behaved.  Four of these occurred when I worked for NBC in the 70s. About three of them are quick examples of particularly boorish behavior on my part in social situations, as in bars (one on jury duty in Texas). I won’t give details.  But had I been more mature then, and behaved differently, my seven year eldercare experience would have been easier to take and deal with.

I give the interviewer my past, most of it true, some of it black-and-white fiction which others hold me to as if it were true.  What is witchcraft, except a belief that you create your own reality?

I think that the loss of an opportunity for a rich college social experience, from the whole William and Mary expulsion and the NIH “therapy” that followed, in a very troubled period historically (Cuban Missile Crisis, Kennedy in Dallas), does help explain some of my actions later.  So does the fact that I could not fight off the sidetracking from my greatest gift, which was an ear for music.  I was late to mature.  That doesn’t have to happen today. 

Tuesday, February 01, 2011

Up to 25% of broadband Internet traffic may be P2P-related organized "piracy"; Another mass litigation suit (XPays), this time back to P2P

Shaun Waterman has a story on p. A5 of the Feb. 1 Washington Times, “Pirated content almost 25% of Net traffic, Copyright violations ‘large-scale, organized”, link here 

According to the article, illegal download, most of it in P2P and BitTorrent environments and driven by underground “profitable” enterprises, take up 25% of our bandwidth and increase costs for all broadband users.

On Jan. 21, a number of media outlets reported that XPays, Inc., had filed 843 suits against “John Does” identified only by Internet addresses, for illegal downloading by P2P of content including the Paris Hilton tapes,  a typical story on Seedbox here.

It’s questionable that trolling for home Internet users of P2P would do much to deter criminal underground infringers, and it is even more dubious that suing bloggers (Righthaven) who reproduce stories in conventional web publishing environments will do much to stop mass infringers or save newspapers.
The TWT story did not mention Righthaven specifically. Interesting.

Picture: last May, near Baltimore (unrelated)

Getting "rescued" by telepathy, and being called to do the rescuing

I recall a few occasions in my life where a “good Samaritan” appeared, almost as if by telepathy.

Back in September 1992, I was on a bike trip with Adventuring (DC’s lgbt outdoors group, link) in Delaware, when I fell behind the group in a heavy rain. Once I approached Maryland 301, a nice older couple with a pickup truck (and room for a bike) offered me a ride back to Millington so I could get carpooled home to DC (after dinner, pantless but with sheets because of the soaking rains).

It’s hard to be prepared for meeting “the real needs of other people.”  I once got a lecture from a female Dallas coworker back around 1981 about how men are supposed to be able to change tires for women (or jump start them), when she had a flat in the Zale Building parking lot.  For me, prevention of physical challenges or loss is a much easier, if evasive, strategy.

Sometimes, I find that the communication of need happens through telepathy, with one's showing up at just the right time to forestall harm.  Maybe that's the next advance in technology, to tap into telepathy as well as microwaves.  Maybe telepathy can go faster than the speed of light to other planets and solar systems. 

I’ll come back to this soon as I prepare to say more about “The Social Contract” (not just “The Social Network”). But this is all about "Inception". And it's about karma.