Saturday, April 30, 2011

A volunteer experience with fixing a group home; what it's for


Today, I volunteered for a while at a maintenance project for a group home in northern Virginia.  There was a lot of painting (inside walls) and staining (outside deckwork) and garden work (mulch) taking place. I was struck by the observation that I probably wouldn’t put in that much time on  maintenance work on my own house; I would hire a contractor for major problems (like painting outside).  My idea of “house” is that it takes care of itself (as in the 1976 movie “Burnt Offerings”).  Or, that’s why a lot of people prefer highrise apartment or condo living; they can focus on their own abstractions of self-expression.

My own mother was not only a fastidious housekeeper; she would toil in the garden, and want to remove any weeds.  I rather like natural, wild flora. There's nothing wrong with dandelions.

There will surely be a lot of rebuilding service work in the near future given the tornado damage in the South; already there is discussion of bus trips to go down and help churches rebuild.  CNN is reporting that many homeowners struck by the massive tornadoes did not have adequate homeowner’s insurance; but a representative from USAA today (again, on CNN) was trying to provide reassurance that his company would help the company’s insured homeowners  (for this company, military families) get back on their feet with conventional builders and contractors quickly.

How well does the market rebuild infrastructure after a disaster, and how much depends on real volunteer service?

Below is a “Habitat for Humanity” picture from 2002 in western Minnesota.  

and this, nearby:

Actually, I remember another similar project in which AGCMCC (All God's Children Metropolitan Community Church) participated, an old house in the Phillips neighborhood of Minneapolis, back in 2002; in that experience, everyone was doing wiring and plumbing and reconstruction as volunteers.  It's hard to be useful; when you arrive, everyone is working along, quickly, and too many cooks spoil the broth.

It seems that an experience like this is much about "community bonding" as about meeting specific needs in the most efficient way. The Amish teach people about that.

Friday, April 29, 2011

"Blogger journalism": Pinning down "what it is", could pose new risks; and a note about "due process" with "free services"

Once again, I come to the topic of sifting “blogger journalism” with “social media”.  They serve different purposes – and that could be legally or practically significant – even if in practice what they achieve overlap one another.

I definitely entered this ménage as an “amateur journalist”, with the emphasis on self-publishing and distribution, originating in the desktop publishing culture of the early and mid 1990s.  But I think it’s useful to characterize what I think I did.

Some of the characteristics (almost as in a biology class, describing a phylum): 

.  Content that reports on current events with bibliographic references, usually (when online) with hyperlinks, sometimes video embeds.
. Content that adds some personal experience to give perspective on media-reported current events
. Content that offers commentary or interpretation of the news item with respect so some particular issue or controversy.
. Content that is intended to be available to “everyone” and indexed by search engines.

That is what I would call “blogger journalism” today (even if the personal components isn’t always necessary or even desirable).  This was largely how the Web 1.0 environment worked in the late 90s. True, content could be excluded from robots by metatags, but that typically didn’t always work. In general, most “free content” that had any substance got indexed for free by search engines.  It turned into a way to “get published” without the usual competitive process (convincing a conventional media outlet your content would make them a profit).  The desktop publishing world stayed in step with this by offering “print on demand” for self-publishing of books.  And generally whole books started to get indexed by search engines as well as web pages and blogs.

A practical result of this effort, say around 2000 or so, was “social networking”, even if a little more of it still had to happen in the real world (for me, that included the indie film community in Minneapolis then).  
Friendster, then Myspace and Facebook, and in slightly abbreviated way Twitter, would develop the “social networking” world as we’ve quickly acclimated to it. And these could, as a converse, somewhat be viewed as platforms for publishing. But usually the content was primarily seen by a list of “friends” or “followers” (as had been the case with listserver “publishing” in the 90s). So this was not “publishing” in the same sense.  It turned out, however, that social networking sites (most of all Facebook) could be extremely effective in advancing calls for social and political reform, especially overseas, and especially recently.

It’s important to note here that “publish” has more than one meaning.  Sometimes in libel law (both in the US and in Britain and Europe and western countries in general), to “publish” means to convey content (verbally or in writing) to at least one person who understands it. That certainly comports with the concerns over the way social media can affect “online reputation” and affect employment.  In practice, sometimes content that is announced to a specific “friends” or “followers” list does go viral. That can be especially true with someone who has many followers.

Still, there is another practical sense of “publication”, and perhaps “distribution”, which is making content available to anyone who wants to pay a fair market price for it, or often for free.   The author or publisher may not know who saw the content, and in fact is not entitled to know.  (One can in fact, limit blogs to a private audience and restrict Facebook or other social media content to specific parties, and one can even block specific IP addresses or servers (as with the “.htaaccess” file on Apache) from accessing a personal website; but that certainly contradicts the “spirit” of publishing in this sense.)

In view of all this, it may make sense to define “blogger journalism” in terms of the four dot-points I listed above. But that could provoke some problematic situations. Employers could adopt policies banning associates from engaging in “blogger journalism” even on their own time, while still allowing “subscription” model social networking as a practical reality (or perhaps even requiring it as part of the job).   In fact, around 2000 I had written a paper saying that people with direct reports in the workplace or who made decisions about other stakeholders (like underwriters) probably shouldn’t engage in what I call “blogger journalism” at all.  This suggestion had seemed sensible in the days before social networking, as, paradoxically, a way to get around censorship. The alternative was “pre publication review”, which some government agencies require of any publication by any employee with access to certain (classified) information.   Even so, employers did not, as a whole, start getting much wind of these potential risk until 2001 or 2002, when the term “blogging policy” started to appear, and when now lucrative “mommy blogger” Heather Armstrong was “dooced” for what she blogged (without mentioning names) about work.

Many jobs involve exposure to or accessing client-specific or customer-specific PII (personal identifying information) and adhering to confidentiality agreements, sometimes with severe legal penalties for violation, even for lifetime, after leaving a job.  Protecting specific information sounds like it is not a big deal (don’t “name names”, to quote gay journalist Randy Shilts).  But sometimes an “interpretation” of well-published events (as backed up by traditional media sources) may be colored by a personal experience that others can track back from the specificities of a particular comment, particularly when that comment occurred in conjunction with work. 

For all the kind words about blogger journalism (and Electronic Frontier Foundation has a major page on it), it’s rather significant to recognize the commitment that it involves.  This is, as I noted, usually commentary as well as “traditional reporting” (which in old media companies involves very strict standards of “objectivity”).  Once you are commenting or evaluating what you discover going on in your world, it can become harder to work for other people’s goals (to “sell”, for example, or even to teach or mentor), not to mention the risks of “accidentally” crossing legal lines on confidentiality. And others may not consider your content “valid” if you don’t have a real personal stake in “their world” (the “privilege of being listened to”).

When you publish, it’s a good idea to own or pay for some of the web space that it is on, rather than over-depend on free services (whether in social networking or self-publishing or both), who can pull the plug without much due process.  Just today, there was a story about how Ars Technica got bounced from Facebook for a while (it’s back now), because a possible “enemy” made an accusation of “copyright infringement”.    It can be very hard for free services to respond to bullies who are determined to get rid of low-cost competition. We’ve all heard about the recent problems from “copyright trolls” (Righthaven), who seem to be trying to shake down publishers who don’t have the resources to “compete” the “old-fashioned” way. It’s all too easy to imagine other ways trolls could operate.   

A "blogger journalist" (or "citizen journalist") may face questions about his or her "purpose", and these can become significant (leading into the "implicit content" area).  True, citizen journalism "keeps them honest" and that's a source of satisfaction. But that goes against the idea of being responsible for providing for specific people, which almost implies loyalty and partiality. 

Thursday, April 28, 2011

Publication of college English theme leads to teacher arrest: another warning about how sensitive school officials can be about any media at all

An essay written originally as a college English theme and then published in a college newspaper (because the professor thought it was that good)  at North Carolina Central University has led to arrest and criminal prosecution of a high school teacher, according to numerous newspaper stories, such as this one from Winston-Salem (website url link) and a later in the Washington Times (link).

The paper detailed an affair between the student, Jessica Martin, and a male teacher, now 28, facing 64 counts of illegal relationships with a student in the same school.  (I generally don’t reproduce for search engines names of accused her until there is a conviction.)

From an intellectual property viewpoint, the story is important for (and reinforces) a reason already presented here before. School districts, and other kinds of employers (and sometimes law enforcement), are very concerned about published material (especially when self-published on personal sites, blogs, or more recently social media) that maintains that a crime like this has occurred. Fiction can present a problem if it is not clear to a visitor that it is fiction, or if it hints that a perpetrator (particularly the writer) might have a propensity to commit the action in the future, or if it seems to have no purpose other than to goad others into illegal behavior.  

This area was covered July 27, 2007 on this blog.


Wednesday, April 27, 2011

Friendster to erase older content; a warning about "somebody else's free service"

A story by Jenna Wortham in the Business Day of the New York Times Wednesday (April 27) reminds us of the risk in relying on “free services” to preserve content. Friendster, an “earlier” social networking service pre-Facebook, will erase early posts and old photos, in a story (subscription) here .

There have been other “erasures” (a term Clive Barker used liberally in one of his famous novels).  AOL cut the plug on its Hometown AOL publishing, although users were given a facility to move content to Blogger.  And Yahoo!’s GeoCities is no longer around; in the early days (before 2000), many smaller organizations used GeoCities for free sites. 

It’s still best to save your data (and postings and pictures and videos) yourself, in the Cloud, or, better still, on a flash drive – more than one, with a copy kept in your safe deposit box if you travel a lot.  If you have more than one laptop, keep multiple copies of your stuff. 

The trick, however, is to figure out how to keep your presence effectively deployed if Internet business conditions change, which is possible in a future “do not track” environment.  If you are a publisher, know your content and your own goals. 

Tuesday, April 26, 2011

ACLU, and now AOL join the discussion on protecting Internet privacy rights (see ACLU petition)

The ACLU has a petition link “tell these companies to protect our privacy”.  The link for the page is here.     The emphasis on this page is companies all too willingly sharing info with the government; but of course the concerns jive with the recent concerns over selling information to marketeers and the whole “do not track” controversy, and the concept of an “Internet Privacy Bill of Rights”.

Today Alison Haislip talked on AOL about watching your privacy on Facebook: the possibility that  some “friends” are robots collecting information to sell to companies.  I think the same thing happens with “followers” on Twitter who come and go quickly.  Maybe not a big deal for most people.




Also, check out The Washington Times editorial today "Government tracks your iPhone, too; Apple isn’t alone in the privacy invasion department", link here.

Monday, April 25, 2011

Conflict-of-interest: state laws that restrict the right of elected officials to vote on their own matters

The Supreme Court will take up a case involving a Nevada state conflict-of-interest law that would prevent elected officials from voting on matters in which friends or relatives have a financial interest.

The case involves Sparks councilman Michael A. Carrigan, whose friend and volunteer campaign manager was hired by a casino developer, where Carrigan voted on a matter related to developing the casino.

The case is being cast as one of free speech.

Robert Barnes has a story on the matter on the front page of the Washington Post on Monday, April 25, link here

Business interests, especially real estate, of politicians have long been sources of controversy.  In a few cases, they have resulted in libel suits. 

The case would seem to be tangentially related, at least, to a controversy between 2002-2005 about whether bloggers were making illegal “political contributions” when blogging in favor of or against political candidates, a measure which the FEC eventually settled quietly.  But that matter was an indirect cause of a major incident when I was substitute teaching (covered July 27, 2007). 

Wikipedia attribution link for PD picture of Lake Tahoe, nearby.  I last visited the area in November 1995. 


The Washington Times on Wednesday, April 27, has a COI story about a judge who ruled on the California Proposition 8 case, by Valerie Richardson, here.  My own life was marked by a potential "conflict of interest" with work when I announced I was writing about about the controversy over gays in the military, back in the 1990s. 

Saturday, April 23, 2011

Righthaven demands all domain names and related assets, despite prior federal court rulings

In the latest flap of Righthaven, apparently the “copyright troll” has upped the ante in a lawsuit April 21 against Tony Carl Loosle and TCS, at least one publication of which is Las Vegas Info, here

According to a story April 22 by Kurt Opsahl at Electronic Frontier Foundation, Righthaven is demanding (again) the domain name, and adding to the demand, all domain names belonging to the defendant and all computer hardware used in the supposed infringement. That is, the litigation takes on the malicious nature of trying to shut down the defendant from ever publishing again.

That certainly comports with a theory that copyright trolling of bloggers sounds more like an attempt by relatively marginal newspapers to eliminate low-cost competition.

EFF points out that Section 505 (link) in the Copyright Code has nothing to do with domain names; Rule 64 in Civil Procedure, in "my reading", might just be vague enough to allow some such extension.

Federal courts have already previously denied  domain name seizures.

The Electronic Frontier Foundation story link is here

What’s even more amusing is another story, in Vegas Inc, that Righthaven has claimed that defedants have lifted stories out of competitor Las Vegas Sun (Steve Green), which has covered the Righthaven litigation in detail since it started.  The Sun has not chosen to join the effort to troll (and so far, larger mainstream newspapers have not).

I still wonder how Righthaven looks on a lawyer’s resume.  Talk about online reputation. 

Note: Please revisit my April 14 posting for more info on the Foreclosure Blues situation, since I posted it first ("update" at the bottom.) 

Thursday, April 21, 2011

Maybe cell phones also need a "do not track" feature? -- story on iPhone, and ability of police to read phone memories for whereabouts

NBC Justice correspondent Pete Williams tonight (April 21) reported about the ability of the Apple iPhone and iPad to track the user’s movements.  This was a discovery by British forensic experts. Michigan State Police have been using a device to copy a cell phone’s memory of people it stops, although the police deny doing this for routine traffic stops.  The Michigan ACLU is suing to have the practice stopped, and there are real legal questions as to the need for a search warrant before reading cell phone geolocation memory.

Do other cell phones and Blackberries have this ability?

This story seems to enrich the debate on “Do Not Track”.


Here's another version, discussion the "Universal Forensic Extraction Device", on Network World here. Police can "suck data" out of cell phones in two minutes.

Wednesday, April 20, 2011

In early 2010, a "Social Sentry" service was launched to allow employers to monitor associate's "homemade" online activity; is it still around?

In March 2010, there were a number of news stories about a product called “Social Sentry” introduced by a company named Teneros (link).  The product allegedly could monitor public online activity by associates, even when using aliases, from home or anywhere with public Internet access as well as at work. It’s likely that the focus of monitoring would be to track the leak of trade secrets or of unfavorable comments made about the company or customers online (especially on but not limited to social networking sites).  In a sense, it sounds like a corporate “online reputation defender”.

As I noted on my “IT Jobs” blog yesterday, employers might be concerned that employee comments show that they are not serious about staying in their jobs or are distracted by conflicts.

One of the biggest stories was on Fiercecio, here.

Another good story was on Trends Updates. “We only provide the application and the software. It is up to companies to decide what to do with it.”

I could not find any reference to the product on the Teneros site today, and a PDF document turned up by Bing is no longer there. Various other files on the site give 404’s or “unauthorized’ messages.  It’s not clear from what I found that the product is still offered.

Will other products come out to help employers monitor off-duty social media and self-publishing sites?  Will they take the position that anything accessible to a search engine is “public”?  Would the use of privacy settings matter?

A service like this could provide verification that the "right person" is identified, which is a big problem with surreptitious Internet "background investigations" of job applicants and even active employees. This is likely to remain an ongoing issue.

Update:  See the reader's comment. The link given is this. Note the "anywhere monitoring."

Tuesday, April 19, 2011

More about Righthaven's "copyright assignment" business model, and about its web domain



Kurt Opsahl has an important article at Electronic Frontier Foundation “Why Righthaven’s Copyright Assignment is a Sham – and Why It Matters”, April 18, link here. 

He also mentions their co-counsel, Fenwick & West (link) as a technology and life sciences law firm in the Silicon Valley (Mountain View, next to "you know who").  In time, I hope the LLP will have and publish  its own definitive press releases on this whole matter.

Mr. Opsahl again reviews the whole “champerty” problem, of assigning ownership rights to an outside party with the only purpose of suing supposed violators. The article produces analysis that certain questions Righthaven’s “good faith” in its claims, to put it mildly.

There is indeed a good question as to how absolute “intellectual property rights” of an owner may be. One cannot put out or reserve intellectual property for an illegal purpose only. At the other extreme, however, control of one’s own work could be in jeopardy if one were asked to prove it could “make money” in the conventional sense of business marketing.

It’s been reported that Righthaven’s  Web domain is now “redirecting” and is no longer up. Godaddy has it marked as an “invalid domain name”.

And there are other stories floating around speculating on how employment at Righthaven would look on an attorney’s resume. Think again about “online reputation.”

Monday, April 18, 2011

"Match.com" sued over not checking members; a bad precedent for social networking?

Although the media can sensationalize this (especially the New York Daily News in a story here) the reports of a lawsuit against “Match.com” (link)  for not screening offenders before letting them on sets up a bad precedent. 

It would be dangerous precedent to require “social networking” sites of any kind (including Facebook) to do “background checks” of people who register, even using s.o. registries.  People should run their own checks before dating anyone they meet on the Web.

Match reportedly will institute a screening policy.  (In fact, reports say that the suit doesn't seek monetary damages, but wants to force Match and maybe other social networks to pre-screen.) Can this work? Should this apply only to "dating" sites and not other social networking sites. 

It’s really not so far removed from other downstream liability discussions here (Section 230, DMCA Safe Harbor).   In fact, Match, like Craigslist earlier, would be shielded by Section 230, which would seem to make the lawsuit above frivolous. 

Any plan to screen members would run into obvious problems with fake names (a real-name policy like Facebook could be tried), and identity theft, which could ensnare the innocent. It reminds me of the bigger problems with online reputation, where employers or other stakeholders dealing with a person find the wrong one. 

Sunday, April 17, 2011

New "Internet Privacy Bill of Rights" has its detractors; little connection to "do not track"

This story takes me back to the 1990s, when the Libertarian Party was suggested a constitutional amendment like "The Right to Privacy shall not be infringed."  By government. What about companies online? 

Senator John Kerry (D-MA) has introduced a privacy bill, S799, “A bill to establish a regulatory framework for the comprehensive protection of personal data for individuals under the aegis of the Federal Trade Commission, and for other purposes”, with govtrack link (url) here, and Open Congress link here.  It's short title is "Commerical Privacy Bill of Rights".  The full text is not yet available. Kerry's own link is here.  John McCain (R-AZ) is a cosponsor. 

Generally, the bill has been criticized for not addressing “do not track” or the ease with which websites can track the surfing of visitors.  It does try to establish a somewhat bulky framework (if slow) for regulating what marketeers can do with information, and does mandate “opt-out” mechanisms. It may be much more favorable to the “user generated content” model for the Internet as monetized by advertisers than was the Boucher Bill.

I notice that I get both ads and particularly emails based on my Internet habits, including the content of my blog postings (not so much Facebook as blogs themselves).  Some of them are amusing. One company thought I was an IT recruiter and keeps sending me requisitions for jobs. Others think I am a life insurance agent and want to trade leads.  I’ve been sent information that I could probably have abused if I were malicious.  Companies have a hard time understanding why someone would write about something without being either a professional media person or being in the specific business already.

Along these lines, visitors could check out the Wall Street Journal article by Julia Angwin, “The New Gold Mine: Your Secrets”, link here. It makes me think of the One Republic song “Secrets” (link).

PCWorld has an article by Dan Tynan, “Five Big Problems with the New Privacy Bill of Rights”, here.

The Alyona Show has a YouTube video on what’s missing from this Internet Privacy Bill of Rights”.



Saturday, April 16, 2011

YouTube requires DMCA violators to attend "copyright school"

 YouTube has taken some more steps to counsel users about the possible consequences of uploading copyright infringing videos, as to what happens if a copyright owner makes a DMCA Safe Harbor complaint and takedown notice.

YouTube issued an advisory posting here.  An account holder sees a notice that her account is not in good standing, and is warned that repeat infractions will lead to permanent closure of the account. And the user is expected to attend “copyright school” and pass a quiz.

The “YouTube Copyright School” video, minutes, animated, with Russell and Lumpy, follows here.


Electronic Frontier Foundation, in an op-ed by Corynne McSherry April 15 (here), has offered the usual constructive criticism. Copyright holders ought to go to school, too; moreover, the video is defensive.  Many uses are “Fair Use”.  The video advises users to seek legal advice when in doubt. In practice, this means, assume “guilty until proven innocent”.  In the fast-paced world of user-generated content, there is not time or funds to try everything  in court.   Generally, you cannot safely assume you can “mix” someone else’s content or repost a media company’s old videos without permission, even though in theory you might win in court on Fair Use grounds.  As a practical matter, ”your” account could be jeopardized by too many complaints, whether legally founded or not.  The world, unfortunately, is often like that.

In the background, remember the Viacom case, discussed April 9 here. YouTube has been accused (by Viacom’s attorneys) of predicating a business model upon infringement. In fairness to YouTube, remember that this case is several years old, and that YouTube has made many technical changes since then to deal with the infringement issues.  A lot is at stake in the Viacom case, including keeping user-content out of the “downstream liability” risk for service providers, which could end the “Internet as we know it.”

I do think that original copyright owners should do a better job of archiving their own content (so that users need not copy it to find it), and of communicating reasonable policies for re-use and mixing without permissions.  That seems hard to do for public companies, that seem caught in the supposed “fiduciary” duty to protect all shareholder property interests in the abstract.  And a few of the smaller media outlets, as we know, have taken to the practice of suing bloggers (through Righthaven) for reposting even without DMCA notification or attempts to make legitimate income from their content first.

“Hot Hardware” has another account of the “copyright school” by “Ray Willington”, link here

Public Knowledge also offers a story, with a critique similar to EFF's, by Jodie Graham, "My First Day ay (YouTube Copyright) School," here. She compares it to traffic school after a speeding ticket (remember the last scene of "Social Network").

Another question occurs to me: what about embeds?  If a video embedded by others is taken down by DMCA, is the consequence for the embed users just limited to the fact that the embeds no longer work, or could a copyright troll go after them?  In the past, embeds have been said to be just "links".  

Friday, April 15, 2011

Student Press Law Association calls for Press Freedom Day

The Student Press Law Center has an “open letter” today (Washington Post, p A21) about World Press Freedom Day, link here.  

The piece notes that student journalism is necessary to tell us what is going on in schools; but schools still hold the power to fire teachers for what students write. 

The “op-ed” refers to a 1988 case “Hazelwood School District v. Kuhlmeier(text of Supreme Court opinion) .  The case had dealt with the concept that a public school newspaper might not be intended as a “public forum” intended for the general public to use as a source of school news and potential policy debate.  If a paper were established for largely teaching or “didactic” (as my father used to say!) purposes, speech could well be regulated, by teachers and administrators (who could act against teachers for what students published).  Such papers would have a lower level of First Amendment protection.

SPLC has links to discussions of the case, and to maps showing which states have laws restricting student journalism.

Street Law has a guide to Hazelwood here and you can navigate to the older Tinker case.

Visitors may know that I has my own brush with the issue of teacher free speech (July 27, 2007 here). 

Thursday, April 14, 2011

Righthaven sues "social bookmarking" sites over thumbnails (even embeds of them); AP will keep its distance from RH

The latest slapstick comedy about Righthaven is that it suing Mixx for the use of thumbnails. In fact, it is also suing DailyKix, which aggregates indexed stories, for embeds of these thumbail images. “Ken” has the story on a blog called “One Utah” here. Both of these are called “social bookmarking” sites.  Mixx was recently purchased by UberMedia (link), which will have the pockets not to be intimidated by shakedowns.

In fact, the Ninth Circuit, back in 2007, had ruled that the use of embedded thumbnails without permission in circumstances like these is permissible because it is essentially a form of bibliographic linking, with a PDF of the opinion here

To me, this sounds like saying a grainy pirated video is a threat to the original.

There was slightly longer version of this story on a Wordpress blog named “Foreclosure Blues”, which appears to have been removed recently for supposed TOS problems. I couldn’t see anything wrong with it (this specific story) in a cached copy still available; I do hope it gets restored "legitimately".  (Check this story about Jake Naumer's blog; I haven't heard of "this" bullying tactic being used before; "stick to your knitting?")

The thumbnail “problem”, however, takes all of this into a new area of silliness. 

It's also noteworthy that in December the Dean Singleton of Media News had signed up for Righthaven, and that it had reported that he is also a head of the Associated Press, which had been "threatening" bloggers a few years ago. That Techdirt story had been here.  However, according to a "Law.com" story by Andrew Goldberg March 25, the AP is working on a separate news licensing group, a measure that would apparently not be consistent with joining a group that files "pop quiz" lawsuits; that story is here. And "ForeclosureBlues" noted with a March 25 posting on "Righthaven Victims" blog that the notorious TSA thumbnail had been credited (incorrectly) as an AP photo.

Update: April 18 (Yup, as IRS deadline approaches, although that doesn't matter)

PS: For the record, I found another article on Naumer and the Foreclosure Blues blog, here (at "MFI-Miami").. The pieces of this puzzle get even more interesting. Stay tuned.  And watch what comes out in the movies (particularly on the indie side) in the next few years. All of this would make a good movie for the Landmark Chain to show. Sounds like a real "Roadside Attraction".

Monday, April 11, 2011

With Internet free-flow, I passed the point of no return years ago

In a few posts on this blog, such as Feb. 24, 2010 and Dec. 5, 2010, I’ve enumerated some of the more “existential” threats to free entry and user-generated content on the web. Many of the biggest concerns have to do with proposals  (or litigation, some of it overseas) to loosen protections against downstream liability, in both the Section 230 and DMCA Safe Harbor contexts.  Others include “copyright trolling” against bloggers, and ideas about mandatory insurance, or conflict of interest.

I entered the world of self-publishing, first in books, and later switched to heavy use of the web as a publishing platform, to be “discovered” by search engines, then into conventional blogging, and only lightly into more direct use of today’s social media (especially Facebook and Twitter).  I had a “message”, which was motivated in large part, at first, by the evolution of “don’t ask don’t tell” and the unusual relationship of that issue to my own personal history (the WM Expulsion).  You might sum up my message with the word “karma”: it starts with a libertarian approach to individual rights and equality, and then recognizes the sustainability problems  that can evolve if we don’t remember the value of socialization, however if may invite corruption.

By the late 1990s, if not sooner, I had pretty much committed myself to seeing all this through to an end, like a movie.  Because I had put myself out there with the free entry concepts as the had grown up during Web 1.0, I did indeed have a sharp-edged reputation; soon I found that the typical “second careers” expected of “retired” people (people and sales oriented, the “we give you the words” paradigm) had become infeasible.  I wanted to originate the “words”, not prattle those of others to manipulate people in an organizational structure.

During the past seven years or so, I’ve fielded many unsolicited invitations to go to work in people-oriented jobs where my visibility would probably cause issues, so I would probably have had to stop the self-publishing and remove most stuff from the web.  Some people I know have done that, but that gets pretty impractical in the Facebook-Twitter era.  In fact, we hear career counselors say you have to be active in social media – and demonstrate a willingness to sell someone else’s message – which is not why social media were invented.  But many of the typical “retirement careers” for past techies – such as teacher, insurance agent, even tax advisor (and I write this a few days before April 15) would impute a social ability to “take care” of individual people.  (A student is, after all, a client or a customer.)  

I get the impression that people may perceive self-publishing as preaching not to a “choir” but to a barren, lifeless planet.  Why should we listen to you unless you have a personal stake in our common future(?), others could ask.  All the sudden, there is a nuanced view of personal responsibility. Yes, you’re responsible for your choices, but not everything in life follows “The Axiom of Choice”.  You belong to a community, and must be willing to take some social risks and have your own skin in it to have any ownership.  Earlier generations implicitly understood this (the “prohibitionistic” view of sexual morality was really a way of say that the capability for family responsibility was mandatory even if it’s specific incidence could not be), even if social organizations and extended families descended into tribalism.  Hyperindividualism has left its own trail of problems: a tendency to drop people on the floor, and serious questions about sustainability.  Ironically, technology has shown how we can extend life, when we no longer want the social structures to keep its value – even if families in the past knew that the days came when they had to let go.

During the past few years, I have sometimes been approached, perhaps ambushed, by "opportunities" to provide a role model for someone else not intact. I find the prospect of this expectation quite daunting when I did not raise my own family, and was drummed with the idea when I was younger that I would not be fit to do so. It is not easy to turn something like this around by fiat.  In the final analysis, the only way for me to get in the game (and be a role model or even a paternal figure some day) is to finish the "individual work" that I started, and demonstrate the concept of persistence with one's own vision. "It takes a long time."


There is a related post on the Retirement Blog April 8, 2011. 

Saturday, April 09, 2011

Viacom v. YouTube case before 2nd Circuit now: downstream liability protection from DMCA Safe Harbor is at stake (EFF story)

On April 7, Electronic Frontier Foundation (EFF) published a brief essay reminding speakers of the importance of the Viacom v. YouTube case, dating back to 2007.  The case is now before the 2nd Circuit, which hopefully will agree with a lower court that the DMCA Safe Harbor should shield YouTube from secondary liability.

Viacom (Paramount) seems to be arguing that secondary liability occurs as a basic doctrine of common law. It may, but Congress can certainly override it, as it did with DMCA Safe Harbor (and, in another context, Section 230 -- where American law is more protective than European, as we know from an open downstream liability case in Italy).

YouTube (and Blogger and Wordpress) are not the only service providers at potential risk. So would be conventional social networking sites (Facebook, Myspace, Twitter); even the ability of major companies like Verio and Network Solutions to provide low-cost shared hosting to individuals could be imperiled.

At the same time (or in the same breath), I’ve noted recently that the DMCA Safe Harbor does not directly protect “speakers” themselves as many had thought. This has been one of the many lessons of the Righthaven mess.  It still needs clarification from the i.p. law community.

The basic link for the EFF story is here. Also check the PDF amicus brief provided there, which makes very instructive reading as to the major concerns.

I am still struck by the idea that large media interests would like to eliminate low-cost competition by using downstream liability as a way to end "free entry".


The video above (2 years old) is instructive. It mentions "digital fingerprint technology" as possibly part of the solution. But the Viacom side insists "you cannot have a business model predicated on copyright infringement" (e.g. MGM. v. Grokster, settled 2006).  It claims that YouTube knew that copyrighted material was a draw, but much of this dates to before purchase by Google. 

Thursday, April 07, 2011

Colorado judge rebukes Righthaven's champerty; lawsuit against Ars Technica journalist end-arounds the DMCA safe harbor

A Colorado federal judge, John L. Kane, has rebuked Righthaven’s “business model” of shaking down defendants for settlements to avoid the cost of litigation, in denying an extension of a motion to dismiss the case against Brian D. Hill.  The Scribd link for the opinion is here.

The judge wrote "the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability."

The site “Vegas Inc” has a story “Denver judge critical of Righthaven tactics”, link here

For another story about Righthaven in Colorado, see this blog Feb. 10, 2011. 

Steve Green has a novel story (March 28, link) in the Las Vegas Sun about a suit against a journalist Eriq Gardner for Ars Technica for including an image (of a TSA Agent performing pat-downs) supposedly owned by Righthaven from an earlier case (Drudge).  Ars Technica itself was protected from secondary liability by the DMCA Safe Harbor, but the original journalist as an individual was not.  This practice is actually unusual in DMCA-related cases.  It could further complicate advice given to webmasters or service providers to try to get themselves registered as copyright agent.  Again, this case would need to be followed closely for legal technicalities, which judges may see with a great deal of variation. 

Tuesday, April 05, 2011

Local governments not respecting first amendment on sign ordinances; more on privacy loss

On Sunday, April 3, George Will wrote (in the Washington Post, at least) an important op-ed, “In St. Louis, a protest sign meets government arrogance”, link here.

A property owner in St. Louis, serving low income people, put up a sign on his property protesting eminent domain.  The local government demanded that he seek a permit for his sign and then denied the permit.  The sign was motivated in part by the notorious Kelo case, discussed in my book review blog (Sept. 8, 2009, discussing a book by Carla Main and the Freeport TX case).

Will makes a point that government here is deciding what it’s power is; it’s no longer deferring to the consent of the governed.

And this is about an Old World problem: signs and banners. It pre-dates the Internet.

As I type this, I’m overhearing a discussion  on the NBC Today Show about the dearth of privacy  (or its death). We’ve created a world where real privacy is impossible. There are no “take-backs” because digital images are permanent, somewhere).

And we know what Ben Mezrich said about the invention of Facebook and other social media, making a few “accidental billionaires”:  “All they wanted was to meet some girls.”  (See my books blog, Jan. 8, 2010.)  It’s more than that. All we wanted was some public attention, to be noticed!  I started that with “do ask do tell”. 

The “don’t ask don’t tell” world is gone forever. 

Monday, April 04, 2011

Facebook sued over inappropriate paramedic's photo, takes down photo voluntarily but cites Section 230 legal protection from downstream liability


Parents of a girl whose daughter (Caroline Wimmer) was killed on Staten Island, NY, have sued Facebook after a paramedic posted (inappropriate) pictures of her on the site.  The parents want Facebook not only to remove the pictures (it has, voluntarily), but to turn over records of anyone connected with the images, even viewing the images.  But she also says all she wants is her daughter’s picture back.

The paramedic (Mark Musarella) was fired and convicted of a misdemeanor.

Theoretically, a website operator can track the full IPv6 address of any computer that visited the site (by examining server logs). That means that in theory someone could find out who repeatedly visits his site or looks at certain images, and possibly block that entity. In 2005, I used server logs to figure out when a school district had actually viewed a “screenplay” on my site that raise objections, and found that the fact pattern on the logs did not match what they had told me.  That may have helped me get a substitute teaching job back (July 27, 2007 has the incident).

The parents also want a “Caroline’s Law” for a public servant to photography and publish pictures of a crime victim on his own.

Facebook is protected from downstream liability by Section 230 of the 1996 Telecommunications Act, and says that it is doing all that is necessary by simply removing the offending pictures from the site voluntarily. It is not relinquishing its digital copy of the picture or turning over records of others (like friends) who could have viewed it.

The case may seem trivial legally,  and be driven by emotion; but it is another example of some public objection to service providers “hiding” from liability by Section 230, which we have discussed here before. 
Here is CNN’s story:


Here is another version of the story on “US Online News” with criticism of Section 230 as “out of step”, link here

As with the "do not track" and Safe Harbor debates, we have to be careful that some legal doctrines, including Section 230, affect the ability of the Internet to take all publishers and offer free (if "amateur") content.

Sunday, April 03, 2011

Should professors become activists? Should they be required, or even allowed to?

Here’s a good piece from the Washington Post Outlook April 3, “Why our professors shouldn’t be activists”, link here

What I recall is high school history and government teachers in 11th and 12th grades (1959-1961), both male (one a WWII and Korea veteran but “liberal”) who taught the importance of “connecting the dots” or “keeping them honest.”  They would take “off” on tests for leaving sensitive material out of essay answers in a time when race was a tough call. In fact, in Seventh Grade I had a “general education” teacher, female, who drilled the importance of Brown v. Board of Education into us.

In that lost semester at William and Mary the fall of 1961, I had an instructor in English who was not afraid to give his own personal interpretation of T.S. Elliot  (he would talk about impotence) and Erich Fromm. 

Even in those times, the brightest academicians in the social sciences and humanities said that there was a tension between family and the greater good.  “Family values” were necessary to sustain civilization, but could lead to tribalism corruption and war.  In retrospect, it seems as though my teachers were preparing my activism. 

Middle picture: Try the tour of the Old Capitol (here, from Revolutionary City, which resumed in late March) in Williamsburg some day, and learn where our three main branches of government and "checks and balances" came from. 

Friday, April 01, 2011

"Do Not Track" debate is still treading in uncertainty


But on March 30, David Daw, of PC World, provided a more balanced picture on “The State of  'Do Not Track' on the Internet” here.  He discusses the idea that “Do Not Track” can evolved into a mechanism where users can fine-tune their advertising experience, and let more trustworthy sites do some behavioral adverting in areas of their interest. But the voluntary aspect of much of the DNT mechanism still leaves a lot unsettled. The article was recently reproduced with permission on Electronic Frontier Foundation's site as a feature story. 

One question is how it would affect “amateur” content, such as much of that on blogging platforms (not so much those embedded in Social Media, where the recipient lists are specific and the business model takes nuanced privacy controls into account).  In a future web environment, many home users may not allow less established sites to be supported by “behavior-based” advertising, which could eventually affect the incentive for service providers to offer free or low-cost blogging platforms (even to bloggers to don’t accept ads or expect ad revenue, who may well be in the majority anyway – for many years, I had no advertising on my flat sites, “doaskdotell” and “hppub”; I did experiment with Linkshare back around 2002, with very limited success). On the other hand, many have pointed out that behavioral advertising is still relatively minor in the grand scheme of things, as keywords and content (and geo-location of IP addresses or mobile devices) still can effectively generate selection of ads that many users really want to see.   I have to admit that the car I now own (a silvery-looking 2009 Ford Focus) had been “pre-conditioned” in my brain by web browsing in the months that proceeded its purchase.