Thursday, September 30, 2010

More defenses for Righthaven marks are getting articulated; some settlements appear

Today, the “Righthaven Victims” blogger site discussed some of the settlements, particularly for The Armed Citizen, with story link here, referring to a full story in the Las Vegas Sun by Steve Green. Apparently the suit had been filed in July, so the settlement sounds fairly quick and perhaps coerced as far as these things go.

More relevant are some other Sun-Green stories, discussing the concept of “barratry”, and then a story posted on the Sun Sept. 25 to the effect that some lawyers now argue that newspaper stories made free to web viewers can be reproduced on non-commercial sites, at least under Fair Use, or that free display removes the copyright protection. The link is here.

I would be concerned whether such a defense could hold. For example, if the “infringing” site had any display ads at all, it would no longer be non-commercial. On the other hand, the original newspaper could argue that it is losing ad revenue when the entire story is reproduced.

A better argument is that older stories often disappear, and that a public interest is served when other bloggers reproduce them. On the July 31, 2006 story in this blog, I discuss an original editorial “Suffocating the First Amendment” that had appeared in The Washington Times on Oct. 12, 2005 (in relation to an older campaign finance reform fight). The piece disappeared, so if I want to refer to it, I can only summarize it; I still don’t have the legal right to reproduce it without permission, because the newspaper has the right to control its own piece as “property”. I do think the newspaper industry should have a better method of keeping track of old stories, charging when necessary.

Still another argument is that the secondary blogger can add context or meaning to the original story by using categories and labels, causing related stories (from different sources) to be selected and grouped together. In a sense, that is "trnasformative".

Another argument could have to do with the lack of DMCA notification. It’s true, that the DMCA safe harbor protects only the service provider, not the content provider (unless the content provider is his own service provider and makes himself a copyright agent). But the lack of reasonableness in the process suggests that damages demanded are far in excess of the actual economic impact, and the motives of the speakers affected seem generally constructive (and generally non-commercial or minimally commercial), in most cases.

Wednesday, September 29, 2010

Free speech, off the job, for public and private employees: are the "rules" any different?

I found this interesting summary about the First Amendment and employment (link), dating back to 2005 with updates. I was led to look for this by a comment by attorney Jeffrey Toobin on CNN that public employees can be held to a more restrictive standard as to the results of their “off duty” speech, particularly when it could disrupt the workplace. (OK, the military is a really important case.) The Pickering-Connick standard applies. The article also discusses severe limits on speech done through the workplace.

Government agencies sometimes tell employees that they are held to a stricter standard, and in some agencies or some jobs, there are pre-publication review policies, which could raise constitutional questions regarding property rights.

Generally speech that addresses a public issue is more protected. Therefore, discussions of “don’t ask don’t tell” as a policy issue would receive a lot more protection than comments about employees or the boss in the workplace.

On Sept. 28, CNN’s Anderson Cooper 360 program covered the behavior of Michigan’s Assistant Attorney General Andrew Shirvell in maintaining, on his own rant, a “Chris Armstrong Watch” blog about an openly gay University of Michigan senior who was elected student council president. I won’t give the link, but it goes on and on with detailed “complaints” about the target’s activities and analysis of his Facebook posts. To me it seems rather silly. Cooper interviewed Shirvell, getting nowhere, before talking to Toobin about the first amendment rights and public employees. The point was made that Shirvell’s conduct certain shows poor judgment from a public official who must represent the people of Michigan in an even-handed and objective way. The “Michigan Messenger” has a story here. Shirvell took the “debate” into the “pink swastika” area, largely discredited (although there is Lothar Machtan’s book). I won’t repeat his words here, but I have experienced something like this. Because (as I have discussed on my LGBT blog) of my tendency toward a rather public “upward affiliation”, sometimes others will “challenge” me to demonstrate personal affection or attention in circumstances disdainful to me, and then they will try to “make something of it.”

On Sept. 29 Anderson revisited the issue, interviewing Shirvell's boss, and then debriefed George Washington University Jonathan Turley, who noted, with some regret, that courts seem (in recent years) to be clamping down on the right of public employees to speak freely, lowering the bar on potential workplace disruption, as he gives on his own blog a story of a teacher who was fired for off-duty modeling, link here.

As I’ve noted (and discussed here Monday), I think there care occur problems when a boss (at least with direct reports) gets into controversy online, because subordinates could discern his attitudes and claim a hostile workplace, a possibility that sounds like it has potentially dangerous implications legally. On the other hand, anyone has a legitimate “property right” in expressing his own views with his own means. All issues are ultimately linked, and it is hard to talk about anything without the possibility that someone (like a subordinate) can try to read hostility into it.

As for the “public employee” issue, it seems as though it’s a turnabout. Private business employees have no “first amendment” protection from private employees; in practice, off duty speech is a personnel issue and typically the standards of conduct in mainstream companies would be similar to those in public employment (that is, respect for confidentiality and copyright, avoiding discussions of other employees or particularly customers, and being very wary about conveying “hostility” or prejudice.)

Tuesday, September 28, 2010

More reports on how "copyright trolls" work; Section 230 and DMCA s.h. are different concepts; some rulings on Righthaven start

Corynne McSherry has an interesting perspective on the Electronic Frontier Foundation site, “A Field Guide to Copyright Trolls”, link (website url) here.

She discusses the US Copyright Group (USCG) “John Doe” suits against P2P downloaders of certain movies, as well as Evan Stone (representing Lucas Entertainment and Mick Haig Productions) in suits involving (sometimes) porn material, whose defendants might be embarrassed as well as financially threatened.

But the main focus is again the (“petit ami”) Righthaven actions against sites for simply republishing text from the Las Vegas Journal-Review.

A posting Aug 6, 2010 on the blog by the Las Vegas Trademark Attorney, “Avoiding the Wrath of Righthaven”, by Ryan Gile, here  makes (at least) two new points important to consider. As of Sept 27 Justia showed 144 lawsuits, many of them against small organizations, some against individuals. One is that apparently the LVJR accepts the idea of reposting the title and first paragraph only. But this is exactly, I thought, that the Associated Press had found objectionable (when done automatically by news consolidation sites) because that tends to reproduce what AP does well itself and reduce the value of AP in the news market. OK, different publishers have different models and different standards of fair use, and the effect on the copyright owner is a parameter to be considered with Fair Use. Yet, as EFF points out, copyright owners can’t be allowed to redefine Fair Use just to please themselves.

Giles also discusses why the defendants did not have the “courtesy” of a DMCA safe harbor takedown from their ISP’s. One problem is that the safe harbor mechanism requires the ISP or service provider to define and register a designated agent with the US Copyright Office for processing safe harbor claims. For example, Google explains its DMCA policies here and warns that frivolous copyright claims have sometimes resulted in counterclaims. Other large ISP’s are likely to have similar policies. In general, it appears that publishers that host their own servers and sites may be at more risk if they do not register their agents, and sometimes they may not have the legal understanding as to how to do it.

In fact, the Copyright Office appears to offer webmasters a self-agenting opportunity for up to 11 names for $145 ($115 for only one) here.  Now, a further discussion at Chilling Effects on what constitutes a service provider under DMCA Section 512 (here)  would appear, to me at least, to limit those who can become agents to those parties that actually provide their own communications facilities with the Internet; it would appear to my reading that those who depend on blogging services (like native Blogger and Wordpress,not mapped to a domain) and.or conventional shared hosting cannot name themselves as agents, but should make sure that their hosts and ISP's have satisfactory DMCA takedown agenting mechanism.  (Remember, DMCA protects the ISP or service provider from downstream liability; in practice, these larger companies have deeper pockets and the most practical exposure to potential liability; it is not absolutely clear what happens if a "spamigator" ignores practicality attempts to "shake down" people without resources, and I think the courts are probably going to have to rule on this.  It may be true that those who host their own Internet connectivity are in a better position to guarantee themselves of agenting rights and DMCA warnings before lawsuits; sometimes technical pazaaz really counts.)  These links were provided by Electronic Frontier Foundation in a discussion of YouTube embeds and potential contributory copyright infringement, link here.  Dating from 2007, most of the "news" in this story is good, but some caution is in order. Maybe someone out there would look (by an automatic troll application intending a "shakedown") for theoretically infringing embeds, but in general a YouTube video is going to be removed first if it infringes. One potential caveat occurs to me: many blogs have ads, whereas some YouTube videos don't, and sometimes they do not appear with ads on the original YouTube site.

EFF has discussed the Righthaven case against the Democratic Underground, and republished its response. Righthaven’s practice of purchasing articles known to have been copied in order to sue is bound to be controversial. As I noted yesterday, the right of a copyright owner to use the “property” as it sees fit is indeed a critical legal point, and in other kinds of cases might be critical to keep individual bloggers from being “silenced” by other business interests. All of this expresses a certain irony in my view.

Could a blogger or “Web 1.0” publisher be liable for infringement from a comment posted by others, or from republishing an article when requested to do so by an email, when it turns out that the original author had “stolen” the article from LVJR or some similar potential litigant, unbeknownst to the blogger (and without identifying the original source)? Could a blogger be “set up” this way? I wonder. I haven’t heard of cases like this, or whether larger ISP’s, when safe harbor, essentially offer a practical prevention measure. In general, it sounds like it is a good idea to moderate comments and email submissions, and be confident that the source really did itself get the material legally. Note that Section 230 apparently does not cover copyright, just ordinary torts like libel and the like. DMCA, not Section 230, is set up to handle copyright downstream liability issues. It needs to be understood carefully.

In general, the advice “don’t copy” (very much) may be appropriate. A blogger should copy as little as necessary to make a point (paraphrase if possible), and state the importance of the linked article in relation to other known content and issues. Stating significance (and placing in context) certainly adds more value to the original news content and sounds like an important part of Fair Use.  In many cases, it appears that the supposed content had been intended to be viewed free and could not have, on its own, earned revenue through conventional sales.

EFF offered a link from Scribd about one case (Klerks), where on Sept 17 the judge agreed that the defendant had valid Fair Use and probably procedural claims, here. Apparently the defendant heard he was sued from a reporter, before or without being served first.

See also the comment by MiMTiD Corp on my Sept. 21 post on the COICA bill; the comment talks about agents for DMCA safe harbor notices. 

Again, while I'm supportive of the idea that one can do with one's "property" as one pleases (and that seems pretty fundamental), I think that courts and legislators are going to have to reconsider how copyright law should work when "automated abuse" is possible.  Maybe there should be even stiffer penalties for frivolous actions. 

Yup, the picture is wholly mine (from a hike Saturday).

Monday, September 27, 2010

More remarks on "conflict of interest" and property rights of employees; does the Righthaven matter have other significance?

Back in the 1990s when I was working on my “do ask do tell” book while working for an insurance company that sold to military officers, I was indeed concerned about what I perceived as potential “conflict of interest”. In discussions then with the company, the points came out that I did not have direct reports and did not play any underwriting role in deciding who got insurance. In time (in 1997) I “took advantage” of a merger and transferred to a position in Minneapolis that would appear to distance me from the military side of the business.

The concerns at those time were with self-published (or possibly trade-published) materials that might become well known and create the appearance of “moral impropriety”, that I should at least not depend on a client base for income with which I was at some sort of “moral odds”. At the time, the effect of the Internet (just the Web 1.0 environment), with the amazing efficiency of search engines in promoting the content (especially when “free”) of someone whose book sales alone might not (economically) justify traditional publication and distribution, was not yet appreciated, and social networking as we know it today was still a few years off.

Yet, as web publishing and “self-display” took off, it became apparent that the search engine efficiency had created a new kind of “risk”, especially to employers, regarding the “online reputation” of associates. For employees with direct reports, if they posted “political” opinions online with respect to various kinds of people (imagination can run wild here), employers could some day face hostile workplace litigation. Discrimination litigation could occur because of underwriting decisions. In time, the nature of the “problem” spread. Some employers began to fear that employee “online reputations” could drive away clients, wrongfully or not. Other concerns appeared in areas like property insurance, and in medicine, where heath care providers feared rating sites or talk boards or other web content targeting them could wrongfully drive away patients and harm their practices (hence the “gag order” problem which appears sporadically). In all of these areas, a component of the risk could become prospective; a fear of what a self-publisher might do in the future when the business relationship had terminated.

By 2000, I had posted an essay online suggesting that managers with direct reports or the authority to make underwriting decisions (and certain other kinds of workers) probably should not self-publish online without pre-publication review by third parties, which would constipate the speech somewhat and provide some oversight of the external risks. Indeed, some government agencies require their employees to submit all their own material for posting this way (although it’s not clear that the pre-publication review policies would apply to material totally unrelated to work).

Over time, I would receive two letters from my employer’s counsel, indicating no conflict of interest based on the activity of writing and publishing books or web promotion of them. But the letters specifically did not mention the proposed content of my work or the issues that they could take up (like “don’t ask, don’t tell”). Upon reflection about this matter later, it seems to me that it all came down to understanding “property rights.”

Indeed, in the past few years, people have been denied job opportunities because of their own online content, and sometimes been fired for personal blog postings or even tweets or Facebook wall scribbles. Most of the firings have happened because of one of two issues: (1) posting confidential information (especially trade secrets), or (2) criticizing the boss, other workers or customers of the workplace (in the 2002 “dooce” case of Heather Armstrong, even without “naming names”. But sometimes teachers have been fired because of content that was thought to reflect poorly on their reputations when viewed from the possible perspective of parents rather than other contemporaneous adults (like the “drunken pirate” case in Pennsylvania).

In cases involving improperly reposting confidential information or PII, there is no issue; the poster does not “own” the material being posted; the content is the property of the employer, who can do with it as it pleases. But if one writes an original essay on gays in the military, for example, or filial responsibility laws, one “owns” the essay as (intellectual) property. That normally means one can do with it as one pleases: publish it in a book for which one must pay, or post if for free on the Internet, where it is very likely to be found by search engines and viewed by other immediate stakeholders. In the media business, generally legal copyright owners may do what they wish with their content, although it is common in the movie (and sometimes games and software business) to sell licenses for specific kinds of distribution rights with specific kinds of media. 

The idea that one can do with one’s own property as one pleases is important in other areas. In the real property world, the constraint is usually found in zoning laws. But it has effect in commerce. Can one buy a competitor to put it out of business? (I remember when this happened in Texas with respect to a water park.) Sometimes, although anti-trust laws might come into effect. Can one buy newspaper stories in order to sue people who “stole” the stories online in reposting? That’s a controversy in the Righthaven cases. But generally, people can do (or not do) with their own property as they like. That generally means people can post intellectual property that they created, for free or not. Employers might try to stop it with blogging policies, but might run into a judge who says that allowing even a private employer to do so violates individual property rights and is therefore not good public policy.

In business, employee “conflict of interest” more often refers to having financial holdings in a manner that could undermine the proper discharge of one’s workplace (fiduciary) duties. The wrongfulness comes not in the use of owned property, it comes from owning the property in the first place. I once ran into something like this when a life insurance company proposed that I become an agent, but said that in the training phase I could have no other income. They said that was a requirement of Sarbannes-Oxley (which does appear to prohibit acting as both a broker and agent at the same time). But it sounds wrong now, because that would violate my own property rights.

I can imagine a situation where an employing or business party asks, why publish for "everyone" and "self-display" over controversial or murky issues, instead of using privacy settings (which are available on most blogging platforms, even though it is in Facebook that there is a public controversy). But then I would not reach a large audience and would be forced to "join up" on established causes.  It is the ability of the independent individual to reach an audience that has been my goal. And it seems that the 14th Amendment does say that this is part of my "property right" as long as I have legal personal ownership of the material I am publushing.

I realize that on previous posts I have sometimes questioned the "right" to "free entry" or unlimited self-distribution as "fundamental", but now the "property rights" argument as it supports online free speech seems stronger as I think about it.  (See Dec. 17 2008 and Feb 8 2010 on my "COPA" blog.)

In the intellectual property area, it seems that this sort of argument could lead to other troublesome situations. Here's a "modest proposal" that I hope remains forever hypothetical: To get a particular job, one must destroy any intellectual property whose future use might conflict with the employment or other business interest. One might have to sign an affidavit under oath that one has destroyed the property. Because it is not the use of the property that produces the conflict, it is the possession. I hope that things don’t go this way. But the whole Righthaven mass litigation situation could indeed have far reaching implications, no matter what the judge(s) in Nevada do. In retrospect, I do understand the client newspaper’s position: that it cannot tolerate the willful infringement of its property rights. And likewise I can understand the same position in the movie and music business. I may be there myself some day. Property rights are a major part of autonomy of self, and freedom from the wrongful control by others.

Sunday, September 26, 2010

More "high country" home companion

More adventures on the road – a retrospect of the Memorial Day Weekend my senior year (1961). No, I didn’t make it up Mt. Washington (I promise to do that by May); I ventured into the Blackwater Canyon and Canaan Valley, W Va country where my “best friend” went on a church retreat that weekend and experienced snow.

I had never driven up Allegheny Mountain on W Va 93 before, and I saw some “new stripmining”, or maybe a quarry, as well as more on US291.

Needing “relief” I stumbled into a prayer service in Red House, MD in a little stretch of Route 50 that ventures into MD between two segments of W Va.

The “high country” is always interesting to me. By the way, US 219, as it approaches the Maryland line, becomes another "Skyline Drive", without any parking overlooks.

Saturday, September 25, 2010

Recalling my first hike "in the mountains"

I still remember that last year of high school at Washington-Lee in Arlington, VA so well. On Thursday April 20, 1961 we had a rare late ½ inch snow (the same year as the Kennedy Inauguration Blizzard). On Saturday, April 22, with highs in the 80s, I went on my “first ever” hike with a high school friend (from the Science Honor Society) and his father. The friend used to say, “A hike in the mountains is worth any grade.”

There were stories that you could see the Bull Run Mountains (the Catoctins in Maryland, of “Blair Witch fame) from the “City” (you can see them pretty soon on I-66 once in Fairfax County). The hike was in the Blue Ridge, in the northern section of Skyline Drive, about 10 miles north of the US-211 crossing at “Panorama” (restaurant now closed), on a generic-sounding trail called Piney Branch, looping back to Piney Ridge, about 8-1/2 miles, looking East onto the Piedmont. Hogback Mountain is nearby. At that location, the elevation is still about 3000 feet, although the Drive drops as it goes north to Front Royal. I visited the place today, and saw that the park ranger station at the trail head is still there. Some things don’t change.

I even remember we stopped for breakfast at the Frost Diner in Warrenton on the way out. That’s still there.

Friday, September 24, 2010

Have Web 2.0 and 3.0 made "self-display" a necessity for eveyone?

Here’s another predictive story about Web 3.0, this one from AOL, tracing back the comparisons to 1.0 and 2.0, link.

What’s interesting is the admission of how effective even Web 1.0 had been. For example. Craigslist was a 1.0 legacy, and the whole battle over censorship (CDA and COPA) came out of the capabilities from Web 1.0 of uncleared publishing.

Web 2.0 did introduce blogging, but it also introduced what we call social networking now, where the emphasis was more on connections among large networks of people or entities, than on broadcast or self-publication in lieu of traditional publishing, which had been shown to have such a large asymmetric political effect. Web 2.0 tends to answer some of the questions about implicit content, by making “open connectivity” among persons and a positive (rather than neutral or non-existing) online reputation as essential.

Web 3.0 will tie loose ends, with the “semantic web”, making the web a kind of artificially intelligent assistant, but also enabling efficient ways of content labeling that could answer questions about protecting minors.

Wednesday, September 22, 2010

Is citizen journalism against the law when it records the police?

Today, the Cato institute held a policy forum “Recording the Police: Is citizen journalism against the law?” today, Sept. 22. Tim Lynch, director of the Project on Criminal Justice at Cato moderated. Speaking were David Rittgers, legal policy analyst at Cato, Joseph L. Cassilly, district attorney for Hartford County, MD, and Neil Franklin, Executive Director, Law Enforcement Against Prohibition.

At issue were the wiretap laws in most states that are used to prosecute citizens for making “unauthorized” recordings of police activity. There was a case in Maryland on I-95 where a motorcyclist was stopped and recorded the police ticketing activity; later when he posted it on the Internet, state police came to his home, arrested him and seized his computers and cameras. Maryland has a “two-way consent” law, as do 12 states. Many others require consent of only one party, but that would still prevent a third party from making an unauthorized recording of two individuals in a public place.

The district attorney said that he felt compelled to prosecute according to the law, even if there were no penalty, in order to stimulate debate in Annapolis for a law he thinks should be changed to unary consent.

All speakers noted that the distinction between “paid journalism” (or the established press, as named in the First Amendment) and “citizen journalism” is getting blurred in court, particularly because major media channels often show “citizen journalist” pieces on their networks, often without compensation. An individual blogger with a YouTube channel can have a bigger audience than some local cable access channels.

The event was V-cast on Cato’s site. I stayed home for a water heater replacement, even though I had intended to go to it. There should be a youtube channel video soon of the event.

The link for the "Cops on Camera" event is here.

Tuesday, September 21, 2010

EFF says Leahy's COICA bill could dismantle web one domain at a time

Congress is toying with a new bill, S3804, the “Combatting Online Infringement and Counterfeits Act” (COICA),  introduced by Patrick Leahy, which would allow the DOJ to build two levels of blacklisted websites, which ISP’s and other services would have to block users from. The govtrack reference is here.

The two tiers would be separated by a court order for the first list, and a second list without court review but strong pressure on service providers to blacklist.

Electronic Frontier Foundation has legislative analysis by Richard Esguerra (website url) here.

The obvious idea is to target websites believed to provide illegal downloads or pirated materials. More problematic would be sites providing P2P services easily abused. Perhaps news consolidation sites believed to be highly infringing (by merely reproducing other copyrighted stories) could be targeted.

EFF also believes that the bill could invite tinkering with domain name lookup mechanisms, which, recall, were shown to have a huge security hole which Microsoft patched in 1998.

Monday, September 20, 2010

New Yorker Mag lays bare Facebook's philosophy

Jose Antonio Vargas has a great article in The New Yorker Sept. 20, “The Face of Facebook: Mark Zuckerberg opens up,” link here.

Vargas describes Zuckerberg’s personal philosophy, of a more open society, upon which his business model is based (however “accidentally”). Specifically “Zuckerberg’s business model depends on our shifting notions of privacy, revelation, and sheer self-display.”  The personal values of "minimalism" and "eliminating desire" sound interesting.

Later, the article shows an IM that Zuckerberg sent that seems damaging, about PII that people sent him at Harvard. “They ‘trust’ me”.

Vargas talks about the upcoming movie “The Social Network” from Columbia, based on the book “The Accidental Billionaires” by Ben Mezrich. There is an irony, maybe challenging morally, that some people who were essentially asocial would develop a mechanism to encourage others to become more social in public, and then watch the spectacle, rather like kibbitzing a chess game but not playing in the tournament. (Well, then, we do have pro football, don’t we.) .  Zuckerberg reportedly does not plan to see the film. (I do.)

Zuckerberg’s “philosophy” has its critics. After all, he was the “favored child”, etc. He doesn’t have anything to hide (not even those IM’s). Yes, the world would be better if it could be a more open place. But Anil Dash is quoted as saying “My feeling is, it’s not worth the cost for a lot of individuals.” The word “individual’ is critical here, because our society has moved away from families sharing same-boat fates, but that’s by no means true for everyone.

But, Mark Zuckerberg (depicted as “straight” in all the media) has done more to crush the military’s “don’t ask don’t tell” than anyone on this planet, just by developing this company.

Picture: At a disco. But did the same person change T-shirts (pictures are about 5 minutes apart), are they twins, or does my digital camera play games with colors? Some forensics.

Sunday, September 19, 2010

If a blogger reveals a book's or a movie's ending, is that possibly a legal infringement?

The front page of the Saturday September 18 New York Times ran a story that may in time bear at least a tangential relevance to the mass litigation problems against ordinary people. It is by Noam Cohen (not Chomsky!) and is titled “Spoiler alert! Whodunit? Like it or not, Wikipedia will tell you?” link (web url) here.

It’s a little hard for me to believe that commercial reviewers have protected the ending of Agatha Christie’s “The Mousetrap” for 60 years. But, as the article notes, Wikipedia does not.

The article goes into the question as to whether there is an ethical, may even legal, reason for reviews of movies and books to avoid spoilers or at least segregate them with warnings. Wikipedia becomes an issue because it’s an encyclopedia. But there’s an issue when a movie comes out, and bloggers (maybe with ads) disclose the ending.

Or maybe not. Maybe the blogger thinks that the ending reinforces a political point he wants to make. (One could say that of any review of Clive Barker’s “Imajica” which surely has to become a movie some day, the sooner the better. The concept of the book’s ending is perhaps the most shocking in all of my experience.)

But conceivably a studio could claim that a blogger’s unlabeled spoiler will discourage the market for people to go see the movie or rent or buy the DVD. It sounds facetious to me, but I do wonder.

One could imagine similar concerns for disclosing the "prestige" of a magic trick, or of paraphrasing a recipe, even though "facts" are not copyrightable. (Maybe these could fall under trade secret protection.)

I’m wired differently than most. Knowing the ending of Ben Affleck’s “The Town” would not stop me from seeing the movie (which I did Friday). For some films, like Carter Smith’s notorious “Bugcrush”, you have to watch the ending (like on a website video) over and over to try do decide what really happens.

As far as my own plans for “Do Ask Do Tell”, there’s no spoiler possible because even I don’t know the ending yet.

According to Pluthero Quexos (“Imajica”), every movie (even in the Second Dominion) must have a beginning, and middle, and an “ending.” What about a “point of recognition”?

Picture: A sentinel for Stephen King’s Langoliers, maybe. As John Lithgow says, they're going to get you.

Saturday, September 18, 2010

Respect for personal autonomy (and one's own "separate peace")

With all the discussion about marriage and “family values” and the like, it’s important to keep a grip on “respect for autonomy”, even if the “personal sovereignty” model for civilization raises some good questions (last post).

My starting point is the teasing (sometimes a little bit of bullying) that I experienced in the grade school and tween years because of my lack of ability to “compete” appropriately as a male.

I probably didn’t pick up on the idea that some of the “competition” (as in team sports like [touch] football) is about cooperation and teamwork as it is about individual competition. I wanted to be left to excel in the things I was good at. Beside music, that generally included academics, and as history would prove, that was a good thing. The Cold War would curiously produce opportunities for nerds, who were needed. And the Vietnam era draft would offer up people (men) who didn’t do well in school into infantry combat, whereas college deferments offered a way out. That brings out the entire "hidden in plain sight" issue of "getting out of things" that both the far Left and far Right like to toy with.

But the physical "stuff" when I was younger proved so humiliating that I wanted nothing to do with it, or with the social or psychological norms of the “straight world”.  I didn't get the idea that there could be a psychic reward by "joining" a lineage even if I hadn't "competed" well myself.  I walked away from it, and made my separate peace. But it was peace indeed, and I was able to lead a productive life, standing alone, perhaps sometimes in my own reflection, vulnerable to the next accident, separate from the common destiny of family lineage or at least continuum. (Yes, it happened as a gay man, using the mechanism that George Gilder calls “upward affiliation”.) Libertarianism, with the focus on absolute personal accountability, would provide a compelling belief system.

In a real world, sometimes when people don’t have families of their own and carry on their lineage, others often regard them as fair game for sharing common family responsibilities that others expect of them. And indeed, the needs are very real. Although there are systems to take care of the elderly and disabled (and often resources, whether a parent’s prior savings, or long term care insurance, to pay for outside help), they do come under strain as the demand explodes because of demographics. And it’s not just eldercare (and I add that the 1998 film “One True Thing” provides a pretty good walkthrough of what can happen). Tragedies happen in families, and sometimes people, even the unmarried or singled (even LGBT) are expected to step up and raise siblings or siblings’ children (as movies like “Raising Helen” and even “The Conrad Boys” show). Many people believe that even for the unmarried and/or childless, one’s parents and siblings are one’s “family” in lieu of one’s own spouse and children.  At a certain psychological level, this (the expectation to "play family") does not work for people who felt "driven out" of the conventional world of marriage and family and do not have their own lineage (but do have meaningful and sometimes public "separate" lives). Our society sometimes (but not consistently) demands that people go some very long extra miles to meet needs that occur within families or other specific communities.  Family responsibility isn't always the result of one activity associated with one's own passions. It's not always just about "personal responsibility" as libertarians view it.

It’s not hard to see how this interplays with all the debate over gay marriage and even parenting. Political activists talk about problems like this with language like "second class citizenship", and sociologists use the unpleasant metaphor "family slave". 

But the "problem" also connects to the debates over Internet openness, privacy, sharing, and all sorts of self-broadcast and “implicit content” issues. Sometimes content that a speaker believes to apply to himself only (the “stand alone” situation) is perceived by others as affecting others in a family or community by some sort of existential extension.

I do understand, as I noted in the previous post, that there is some need for commonality of purpose (it certainly makes society somewhat more stable and safer for many); and I get the idea that sometimes, as Rick Warren says (although not on Inauguration Day) “it’s not about you.” Or maybe it’s not “just” about you.

But the fact remains, once someone has gone down a productive individualistic track in life, his (or her) autonomy has to be respected. Otherwise sacrifice becomes what the word says, and sometimes the loss is irreparable. One should not presume that someone like me who went down a different road can jump to fill just any need without real loss. I may seem aloof to some people and not always offer the sense of interpersonal “connectivity” that others are used to expecting within blood families. And only the individual (like me) knows his own life well enough to see all the risks.

Wednesday, September 15, 2010

Visit to Penn State Campus motivates my own summary of "the moral debate"; is mass litigation and endpoint of "individualism gone amok?"; Is Facebook like a "party line"?

It would be fun to be a graduate student again, residing in a mountain-walled campus community like Penn State, with its “four-season climate” (euphemism for blizzards, particularly in Februay), which I visited yesterday. (I think the mountains are extensions of Sideling Hill, Town Hill, and the Allegheny Front, or Eastern Divide.) Penn reminds me of Virginia Tech, also in a mountain valley, but it’s architecture is more varied and utilitarian. And the campus, next to downtown and very funky College Station, is huge. It took twenty minutes to walk across it to view the Law School. Not that many of the “kids” knew where it was. That’s surprising, as a law professor there, Katherine Pearson, director of the Elder Law and Consumer Protection Clinic (see directory link), has written papers about an undeservedly obscure topic: filial responsibility laws (also called “poor laws”). I’ve written a lot about these on my “Bill Retires” blog (especially July 12, 2007). One of the “kids” was a law student herself, and when I passed on my web info, I’m sure I left the impression that my main ax to grind is lifting the “don’t ask don’t tell” policy, and idea that I’m sure is known on campus. (I saw the office for the LGBT group as I walked across.) But ideas, like universes or maybe just plain dots, are connected. All of this ties back to the idea of “autonomy of self” (a connection with DADT that a Washington Times editorial made Monday; see my GLBT blog Sept. 9).

I also have an ax to grind: on the way back, as I left I-99 at Bedford and tried to enter the Pennsylvania Turnpike at night, I got bemused by the interchange and went west by mistake. To my chagrin, I noticed there was not another exit for 36 miles. State law says, I have to admit the mistake. An hour and a half gone (and 3 gallons of gas, and a toll) gone. But it is entertaining to drive the Allegheny Mountain Tunnel. The Pennsylvania Turnpike, which at one time had seven tunnels on the main branch, as was eventful road on family trips to Ohio in the 50s. (Reminder: the 9/11 Flight 93 Memorial is less than ten miles from the Tunnel.)

Like a preacher introducing a sermon, I have to go back on to my “topic of the day”, that is, “autonomy of self”. I prefix this with one more anecdote: as I sat munching on chili in the Somerset Plaza (before turning back from my “mistake”) and read USA Today (first about NBC’s upcoming series “The Event”, which sounds all most certainly to be alien abduction) I noted that someone made a comparison between information sharing on Facebook (and the whole controversy over “privacy settings” and the “Everyone” concept) and the “party line” problem in the 1950s (particularly at grandma’s house in the small town of Kipton, Ohio) where “listening in” surreptitiously was rude and a threat to others’ family secrets.

In addressing “autonomy” again (oh? Please!) I am thinking in an inductive arch. I get feedback from people who sometimes don’t respect my autonomy, and have very definite “opinions” as to what I must do. But that comes down the other side of the mountain “continental divide”, towards far shores: we seek principles that would apply to everyone (isn’t that what “The Law” is supposed to do?) and autonomy, as an operative precept, certainly is undergoing an unexpected metamorphosis. And the greatest concern seems to be that the values-driven behavior of individuals, rather than that of political or economic entities, has a big effect on sustainability and stability.

Since the 1960s or so, we have indeed grown the concept of “autonomy of self” or “individual sovereignty”. Technology, starting first with lower cost personal mobility, was the engine for this. We used to connect autonomy with “privacy”, but the Internet age has reconfigured our idea of “privacy” to say the least. Mark Zuckerberg himself says that a person has only one identity, an idea which, in an instant communication world of Facebook and other web implements, pretty much blows away the feasibility of “don’t ask don’t tell” kind of thinking.

One of the cornerstones of personal autonomy was the idea that the individual makes his own choices and is 100% responsible for the results of those choices. I had stressed that in the Introduction of my 1997 book (“Do Ask Do Tell”). That does sound like a foundation of libertarianism. The best known example is “Dr. Phil’s”: If you have heterosexual intercourse and make a baby, you’re responsible for that baby. Indeed you are. But what about the converse? (or inverse?) Remember how you learned in plane geometry that a contrapositive is always true, but a converse or inverse might not be?

The curious paradox is that the open, free-entry style of communication and sharing, whether motivated by “socializing” or “self-publication” or “self-broadcast” (they overlap a lot), takes us across the boundaries of “autonomy of self”. For one thing, we’re aware that a society predicated on “personal responsibility” can drop a lot of people (“the losers” --the workplace is not kind when it comes to cooler talk) on the floor, without compassion. While it seems to address the right-wing concern of mooching (and depending therefore on the “state” for a safety net, rather than self and maybe family), it can fail to acknowledge hidden privileges and inherited “unearned” advantages and dependence on the hidden sacrifices of others. But one thing “personal autonomy” as a moral paradigm accomplishes is encourage innovation, sometimes spectacular achievements by individual people (Facebook, more or less, although that wasn’t just one person). It’s interesting to me, as I think about it, that the expected revolutions, which in the 60’s seemed to focus on massive cooperative engineering (aerospace) instead moved towards revolutions started by individuals (personal computers and Internet applications).

In physics, nature teases us with apparent paradoxes, where all possible outcomes enumerate at the micro level. Maybe this is true in ethics as well. One of the outcomes of the “free entry” self-broadcast revolution is how personal statements are interpreted in relation to visible personal behavior. If someone is aloof to the needs of other people, then abstract criticisms or fictive “act outs” on the Web as authored by the person get interpreted as contempt (possibly invoking hostile workplace concerns) or provocation (possible invoking attempt charges). This is the old-new “implicit content” problem that indeed overtook COPA. And some of the legal excesses going on today (the massive litigation and supposed “business models” based on it) seem to be an example of hyper-individualism turning in on itself, bringing back old ideas of bureaucracy, attacking anything that seems to be an innovative competitive threat.

People today can have a “high profile” with very little need for others or to compete in a conventional way, but that possibility motivates us to recall an older, unwritten ethical principle that previous generations seemed to accept but couldn’t articulate. That is, before you establish yourself publicly as a citizen of the world, you have to be meeting the real needs of other people. And you should be doing this with “yourself” – your “essential humanity”, not just your “project work.” That usually brings up ideas of family loyalty (or the notorious “natural family” neo-movement). While it’s important to answer for one’s choices, it’s important also to have the practical and personal skills to “join in” with other people, sometimes less intact, at their level of experience, and this seems as morally compelling to some people (partly on religious grounds, perhaps) as is “personal responsibility.” There is no reason intrinsically that such an idea can’t be implemented in a world that accepts gay marriage and parenting, but it would disavow the “upward affiliation” that used to be some important to gay male psychology; indeed the world that my generation came of age in did equate homosexuality in men with a certain relational and physical “cowardice” as to sharing community risks, although thankfully times have since changed. This concept really comes more from the Left than the Right, because it seems to answer Maoist-like concerns that no one should “get out of things”, by forcing everyone to experience the community in a certain aspect (as to openness toward interpersonal activity) that honors the family’s common good. It also still answer’s the Right’s concern about “freeloading” (as I discussed in the 1997 book). But it would perhaps stifle individual innovation. Just as hyperindividualism could accidentally morph into a kind of fascism, hyper-communalism can invite Stalinism or Maoism down the road. Excesses of either (or both simultaneously) can invite the “authoritarian capitalism” of modern day Russa and China (in an atheistic setting), and, in my view, radical Islam or any theocracy, when driven by religiously prescribed ideas.

Monday, September 13, 2010

Social media and friends' lists can help properly aggregate content (like movie reviews)

Jenna Wortham has an interesting New York Times Business Section, p B1, “Search Takes a Social Turn: Web Companies Aim to Capitalize on the Wisdom of Friends”, link here .

The thrust of the article is that companies can comb lists of friends on social networking sites to determine which marketers are most likely to interest “you” because they interested your “friends”. It seems to be pretty reliable.

There is a lot of recommendation software, used by sites like Amazon and Netflix. In fact, I sometimes find them useful, as Netflix can remind me of an older film about a particular topic that I had forgotten about.

My own technique of aggregation is to use the “label” on blogger (particularly effective for movie reviews) or to group related films on static web pages (which is how I did it on doaskdotell).

It also discussed a website that “personalizes the Internet” called (website url) “Hunch” in New York, with Chris Dixon, left, and Matt Gattis.

Sunday, September 12, 2010

GWU Freshman students show Washington DC a "Freshman Day of Service"

Last night, on the way back from the Film Festival on the Metro, I saw some students get on wearing light green T-shirts that read “Freshman Day of Service: George Washington University”. Since I graduated from GWU in 1966, this caught my eye.

Here is GWU's own account of the event, which has to do with volunteering for organizations focused on preserving and cleaning the environment, here. The event took place Saturday, Sept. 11, 2011.

I went to GWU from 1962-1966. Times have really changed a lot since then. On my Book Review blog, you can check reviews of two books by GWU law professor Daniel Solove on matters related to expression on the Internet (reputation and privacy).

Below: Motorcycle raffle display near the film festival site: makes an interesting picture.

Friday, September 10, 2010

Newspapers claim they have warned bloggers about the "rules"

The idea of mass litigation against ordinary people for venial copyright infringement may seem like legal terrorism, or at least extortion. Actually, there is a certain perverse logic to going after people not poor but of modest or average means; presumably if one can be wiped out for a infraction, one is deferred, and mass behavior changes. And technology goes both ways: while it gets easier for users to “do anything I want”, it gets easier to hunt them down with automated scripts which, of course, could make mistakes. The Righthaven matter sounds like a high school English teacher’s “” search (from term papers) applied to everyday bloggers.

A content owner (a newspaper, music or movie company) says it needs to capture all the revenues it should have earned if everyone had paid for the content or content license. The law, as written, does allow for exorbitant awards and punitive damages per instance or item of infraction. In theory, someone who acquires or distributes someone else’s content illegally, when apprehended, must pay back his or her fair share of the lost revenue from all infringers, although that would be impossible to estimate reliably.

So bloggers and home users might seem scared, but there are some rules that content providers warn everyone about. It may seem like there is no excuse for not following them. The blog entry on the Las Vegas Journal Review by Sherman Frederick (linked in the September 8 posting here) was strident and bellicose, perhaps, but Frederick does have a point. “Don’t steal our content.” So what does that mean?

For computer users, there are two issues: illegal possession, and illegal distribution and/or republication.

The RIAA and movie piracy lawsuits were mostly about illegal possession, and mostly were tracked down from P2P users. But the general rule is, if you have to pay for something to have it legally, then you could get in trouble if you are caught with it illegally. Companies are familiar with this because they undergo Software Publishers’ Association audits for illegal copies of software (or user patterns not covered by licenses). Generally, when software vendors supply software on DVD’s or CD’s they warn you not to make copies of the CD’s. Likewise, movie DVD’s may be copy-protected, and rental DVD’s always contain FBI warnings that you can’t get around about illegal copying. We all know, however, that the DMCA and all the laws concerning overriding copy protection are controversial,, and could even interfere sometimes with artists’ making legal copies of their own work. Likewise, movie theaters and stage plays warn that cameras and picture taking are not allowed, and people have been prosecuted for videocaming at movies. (This seems a bit of overreaction, but the theaters have to draw a line somewhere.)

I know that hobbyists make copies for their own use. When I collected vinyl records, I copied some of my own records, already purchased, to cassette as a measure against record wear. I think that was probably legal as long as it stayed in house. But it’s probably not legal for friends to trade records or CD’s to tape or copy and avoid paying for original copies of. But it’s hard to catch people if it’s under the table and not online.

But the Righthaven affair is mainly about illegal republication or distribution. The “threat” is that more newspapers (particularly smaller ones) will join up and use “economy of scale” for mass lawsuits. (I don’t understand why Righthaven would need to purchase the content first; in the RIAA model, this didn’t happen. It’s also unclear from many accounts as to whether users have to be warned first with cease-and-desists and/or DMCA takedown notices. )

To their credit, most newspapers do tell visitors about how to purchase republication rights, both for news stories and particularly for photos and sometimes videos. Visitors, especially bloggers, should take this as fair warning that they are not free to republish whole stories and images without permission or license. (The issue would be even more sensitive for publications that require paid subscription to see the entire content, as more newspapers are starting to do with some content.) But there is a Fair Use doctrine, discussed in the Feb. 8 posting. One (that is, especially, a commercial newspaper) cannot publish something without allowing readers to comment publicly on items in the content. But there are good questions as to how much (as a percentage) of a relatively short story can be reproduced under Fair Use, in order to provide comment. Perhaps if a blogger shows that an original content passage is “outrageous”, its quotation is more justifiable. The key is to add value to the content that wasn’t there already.

It's true, that bloggers who do a lot of "cut and pasting" of original content have another valid point: content at original links often disappears, sometimes in a short time. Without the republication of excerpts, visitors will not be able to understand the context.  Sometimes linked items disappear even when logically the newspaper could have archived them and charged for content (which, if done, would make the republication less justifiable).

There are some more tips on “Right Wing News” in “An Interview with Ron Coleman about Legal Issues for Bloggers and Blog Readers”, link here.  Here's a "creative" solution: Perhaps newspapers could offer not only subsriptions but reasonably priced subscriptions with "republciation" licenses, following a "paid" Napster-like solution and compromise with the larger user community.

I do wonder if someone will get the idea to mass-witchhunt other situations, which may not be legal infractions at all. (Yup, I may be giving people ideas.) What about video embeds. Yes, if a media company provides an embed then it’s OK to use it (even though that’s reproducing an entire “article” without giving the media company the chance for the advertising exposure on its own site, because b providing the embed code, the media company is implicitly granting permission, it seems). Yet I’ve wondered about YouTube embeds if the YouTube video itself infringes (is a copy of something posted without permission). Palomar has a link (referring to am EFF article) here.

What about images from Wikipedia or other commons? Generally, the bloggers should review the license at the bottom of an image page and provide attribution. Sometimes “Fair Use rationale” is provided, but many items have been released into the public domain or have Creative Commons licenses.

What about original photographs of copyrighted pictures? We all know that picture-taking from movies is usually a no-no. Museums vary. Some allow photography in most sections, others don’t. Some have a concern about flash. The blogger needs to check for the institution’s or exhibit’s policy.

What about warnings (often from reused AP content) that a story can’t be “rewritten or redistributed”? Does this protect the “facts” in the story? Facts aren’t generally copyrightable. So I don’t think they can carry much weight. Be careful of close paraphrasing.

What about deep linking? As far as I know, the legality of this was settled about ten years ago, although in the late 90s a few companies tried to forbid deep linking to their sites, on the specious theory that they were losing ad revenue.

Again, news organizations have some reason for concern. A term paper that reproduces facts and bibliographic references in the old-fashioned way isn’t going anywhere, but online its believable that aggregation sites and pages might displace the business generated by original (paid) content.

The hit movie “Going the Distance” has a line where a newspaper editor tells an intern that he doesn’t hire, “Why don’t you try blogging?” It’s as if movie was suggesting that “amateur” blogging really could displace conventional journalism. Indeed, bloggers may fear that this is the motive behind “legal terrorism”.

But amateur blogging should add something that commercial journalism cannot: a “heard in the street” perspective (no offense to the Wall Street Journal), that “keeps them honest” (no offense to AC360 on CNN) and connects the dots in a personalized way. This does enrich debate and often change its course. Without an open Internet, protected by Section 230, I wonder if we would be so close to overturning “don’t ask don’t tell.”

We could sit around and imagine other conceivable temptations for mass litigation. What about movie reviews that contain spoilers?  Do they destroy the market for actually seein the movie? In the mentality of some people, they might.

Update: September 11

Here's an example of where a forum called "MetaFilter" removed a post apparently for a reposting of a Fox news story about a school suspension in Texas, link. Note well the use of the term "recreational outrage"! So some forum moderators are becoming concerned (although Section 230 should protect them, at least as it is set up now).  The details for this incident are posted Sat. Sept. 11 on the blog "Bill on Major Issues".

Thursday, September 09, 2010

Craigslist is involved in another case that tests Section 230 against promissory estoppel

The Section 230 battle continues with another story about Craigslist, unrelated at first to the “censored” story last week.

There is a case called “Scott P. v. Craigslist” in which the plaintiff says a number of ads were written by impersonators. Craigslist removed the ads, but apparently the impersonator managed to put on more of them, and the plaintiff sued, claiming that Craigslist did not keep a promise.

A lower court in California allowed the suit to move forward apparently because Craigslist promised to “help”.

EFF has a story about this dated Sept. 2, 2010, “EFF asks court to protect Craigslist from defamation suit: Case could discourage Websites from responding to help requests”, link here.

The article points out that the court could, in misinterpreting the 1996 Telecommunications Act, even make it more dangerous for forums to moderate content or bloggers to moderate comments.

The Citizen’s Media Law Project has a page on the case here.  Notice the concept of promissory estoppel. The fake ads apparently had invoked invasion of privacy and defamation. There is an earlier case Barnes v. Yahoo! from 2005 where promissory estoppel might take precedence over Section 230.

Electronic Frontier Foundation also commented yesterday on the Craigslist "self-censorship" issue, noting that states' attorneys general or other politicians think nothing of resorting to mob rule or bullying even when the law is not on their side.

Again, there is a deeper philosophical issue. Section 230 (and to a lesser extent the DMCA dafe harbor takedown) implement a philosophy that favors self-publication and initiative on the Internet without bureaucratic supervision. Of course, this runs the risk that it is harder to protect the more vulnerable in the public against bad actors (as with some of the Craigslist abuse). The open environment may also make it harder for old fashioned journalistic and sales business models, that employed people steadily, to keep working in the face of low cost, decentralized, individually tailored competition that has the ability to “connect the dots” in new ways when there is no bureaucracy. The problems run deeper than just the legal precepts of copyright, defamation and downstream liability; they occur with any revolutionary innovation. Some people(nerds) do better in the new environment than others (people who use and navigate social structures a lot).

Wednesday, September 08, 2010

New mass litigation (from Nevada) targets news aggregation blogs or websites for reproducing news stories

A number of web media sources are reporting a new “business model” for mass litigation (or “spamigation”). A company buys up copyright ownership of news stories from certain newspapers or other publications, and then trolls the web for illegal repostings of the stories on blogs or aggregation sites and sues the owners of the sites. The concept reminds one of "Turnitin" and one wonders if the activity would also troll the Internet Archive, for previously undetected infringements.

The newspaper  mentioned in these accounts is the Las Vegas Review Journal (link for blog entry about this at R-J by Sherman Frederick -- read the last sentence and weep!); there may well be others "joining up" . Some commentators suggest that this is an unconvincing (to say the least) way for strapped newspapers to raise some money immediately.

A story by David Kravets in the “Threat Level” feature of Wired, dated July 22, 2010 (it’s surprising that it has taken six weeks for this matter to get around) is called “Newspaper Chain’s New Business Plan: Copyright Suits”. The link for the story is here. The story cites Steve Gibson as the “entrepreneur”, and the company is called Righthaven. It seems that the value from litigation is more than advertising.

Here is a link at Justia giving the filings so far (nine pages). The suits appear to be filed in Nevada, under the Ninth Circuit, and as now number over 120 and new cases are piling up quickly.   You can follow the cases by hyperlinks down to specific content items and discussions (for hours if you want to). A recent defendant is Sharron Angle, with a blogger (Steve Friess) story about the matter here. (Judge the merits for yourself!  I can't tell here.)   There is an interesting piece by Ron Coleman (linked from new defendant John Glenn Sept. 9) on a site called "Likelihood of Confusion" called "Suing bloggers for dollars" here.  Check his link where he says bloggers are wrong to infringe copyright where he gives his own guidelines for what is Fair Use (below).

There is a Blogger site that also discusses the Righthaven situation, and lists the defendants to date and identifies what they do, link here.  The blog also links to a list of Stephen and (now) WEHCO Media newspapers, many of which are probably obscure to most bloggers.  Use great care when using any of their material.  The blog also discusses DMCA agenting (taken up here Sept. 28, 2010).

There are a number of comparisons to be made with precedents. With movie and especially music “piracy” there is arguably a “theft” issue: people, mostly through P2P, were getting entertainment content for free that normally they should have paid for. The RIAA mass lawsuits, while intimidating (and catching parents or roommates owning the computers) were not particularly effective, but newer business models offering the music or movies legally for low cost (such as paid YouTube rentals or subscription Napster) have been. Newspapers, on the other hand, may have a hard time being profitable because the Internet “model” practically forces them to offer a lot of content free, and people buy fewer hard copies. Some newspapers (like the Wall Street Journal, or the New York Times starting in 2011) charge a subscription for full articles, but it is hard to see if that will work. Many newspapers charge for archived individual back stories over a certain age.

It’s also worth noting that film industry has its own version of mass litigation (from Washington DC’s “US Copyright Group”, with connections in Germany), for piracy of up to six films (including “The Hurt Locker”). Some of the other films involved might have trouble being profitable with normal sales. Independent filmmakers and musicians repeatedly write in tweets and on blogs that they have mixed feelings about piracy. They feel flattered, but they need the income. Note that this new litigation risk the others)l exposure does not involve P2P; it involves mostly text stories on sites and blogs.

An article (July 20, 2010) by Steve Green in the Las Vegas Sun (a different paper) discusses three of the Righthaven defendants, including a Conservative site called Free Republic. Green has many other articles about this matter indexed here at the Sun.  The story Sept 3 about a jurisdictional "win" for the plaintiff there looks important.  Kevin Trudeau's radio site has another story by Green (that I could not find on the Sun's own site) about defendants' fighting back here.  And there is a MediaPost story by Wendy Davis about a suit based on a blogger's reposting an article for which he had done his own research and certainly had a "moral rights" claim, link here. (The defendant was Anthony Curtis of the Las Vegas Advisor (link).)

In the past, there have been other legal controversies about news aggregation sites, particularly involving stories from the Associated Press, which was going to issue guidelines for what it considers permissible use. The AP example could conceivably be used by the courts to determine if Righthaven’s complaints are reasonable given ordinary newspaper industry copyright practices. There were even some controversies about quoting the full titles (if more than four words) of stories, or extended subtitles, which often give the gist of a story. Also, some AP stories (and some local television site stories) contain warning against “rewriting” and “redistribution” which, however, could not apply to merely reporting facts in a story because facts (unless legally confidential otherwise, like PII or trade secrets) can’t be copyrighted.

Electronic Frontier Foundation has its own account by Richard Esguerra Sept. 2, here.

EFF argues that these lawsuits may have the same effect as SLAPP suits, bullying defendants into settling for a few thousand dollars because they cannot afford defense, or could lose big, including legal fees. The tort system in our country does not have very effective protection against abuse, and tends to favor “the powerful” (although I believe the Copyright act does have some provisions conserning abuse). Tort reform ought to be a major priority for the current Obama administration. John Stossel and other libertarians have urged a system called “loser pays” as in Europe. EFF’s article ends with a statement that it is looking for Righthaven cases to defend. It would be almost impossible to develop an acceptable media perils insurance model for bloggers without tort and litigation report such as Stossel and others suggest.

Particularly disturbing is EFF’s report that the Righthaven complaints demand that a court freeze and transfer a defendant’s domain name. It’s easy to see how such a practice could be used to undermine a media brand associated with a domain name. Righthaven seems to be demanding control of a site’s future content, although it’s not clear that this could apply to a renamed site. There seems to be nothing in the copyright statute that justifies this. (This has happened before with libel cases before, where organizations have been taken over by plaintiffs who sued.)

Also disturbing is the report that Righthaven goes right for litigation, without cease and desist letters first . This would sound complicated. ISP hosts would be immune under the DMCA Safe Harbor process (and maybe Section 230) but must go through a preventive takedown procedure first, which would warn the website owner (and which can allow challenge). RIAA and USCG went for litigation. Rapid lawsuits against individuals have been common for years; in the early 1990s, “letter lawsuits” were mass-generated against defaulting homeowners with deficiencies, although that wasn’t done this time around with the more recent housing crisis; now rapid service process delivery (serve-em) exists.

EFF also points out that the plaintiff has apparently bought content after trolling the Internet for purported copyright infringement. That reminds me of a process in the debt collection world, where companies buy entire blocks of old debt and then go after debtors more aggressively. Now, content is sold to third parties in the media world for legitimate reasons all the time.  Motion picture companies buy films from production companies (or even individuals) to distribute them, and typically the distribution companies take over the copyright ownership issues.  Also, as a matter of law, content doesn't have to be "making money" on its own to be protected (although Fair Use claims do consider the effect on an existing market; admittedly republication gives content more exposure).  Some of my own articles have been plagiarized; I haven't pursued them, but as a legal matter I probably could.

Copyright law has a “Fair Use” provision (just mentioned above) which considers it acceptable to quote proportionally small amounts of material from a story for purposes of comment. The provisions are here.

Websites that accept advertising might arguably have a harder time justifying a Fair Use claim, all other factors being equal.

But some factors would obviously favor a fair use claim. One would be if the blogger adds his or her own perspective to the materials cites. Another would be if a blog post contains links to at least two independent versions of a story, each of which contains information not contained in the other. One problem is that some news aggregation sites appear to quote entire stories or major portions thereof with very little value-added content.

In my own practice, I try to give complete links (with date and author and physical location in print version if known), use more than one story when possible (or at least link with a label to other posts that have given other facts about an issue from other sources), keep verbatim quotes brief (although I do sometimes cite subtitles) and offer as much original perspective as possible. When it is possible (easier if you live near DC), I prefer to visit a news story site myself (like a Glenn Beck rally) and provide an original report rather than just cite others’ reports.

On August 30, Kravets reported in another Wired story that WEHCO Media, which owns a number of papers including the Arkansas Democrat-Gazette, was being added to the list of clients, link. Interesting: The Arkansas paper is one of those actually charging to see most content (this blog, Jan. 22, 2010).

It's scary that people see a "business model" in mass litigation, especially in "purchasing" content in order to claim copyright infringement and for no other purpose (when content seems not to be making much other revenue in a "legitimate" way). We could sit around and think about other scenarios. What about infringing videos, going after not only the original postings, but also the embeds?  The possible "opportunities" for legal bullies sound endless.  Some people do not want "newbies" into the power structure, I guess.  That's one reason we need tort reform.

Also: The comments made by viewers on many of the sources I've linked here (including Mr. Frederick's own "warning" blog article) are interesting. They are rather disapproving of Righthaven, but by no means unanimously.

Monday, September 06, 2010

Labor Day: Issues with Section 230, and employer social media policies are bound to hit the fan soon

I see that on Sept. 5, 2009 I wrote a post here describing my Labor Day weekend in 2001, where I got the bizarre email while in Canada, foreshadowing 9/11.

Today, Monday, Sept 6, 2010, is Labor Day (people would say “I stayed home and labored”), a beautiful, sunny, warm day in the DC area. I do recall that Labor Day in 2001 was perfect, as I drove back from Thunder Bay to my high rise in downtown Minneapolis, along the coast highway that hugs Lake Superior. The temperature was still warm, in the mid or upper 70s (it gets warmer in Minnesota than most people realize), and the humidity was about 0, unusual for that part of the world. I even stopped at a “reservation” casino south of Duluth off I-35, although I don’t gamble. Little did we know, but I had a funny feeling of stricture in my mouth. That email, you know.

This weekend, the media is still debating Craigslist’s “self-censorship” of its “adult services”. Note that the ordinary “personals” are not censored. This seems to be in effect only in the United States and Craigslist will not comment, not to reporters, certainly not to me.

This sounds like the classical “Am I my brother’s keeper” problem. Well, sometimes we are, the various states’ attorneys general say. It seems as though Connecticut and Maryland (not bastions of social conservatism) led the list, maintaining that women and sometimes minors were being victimized repeatedly.

Legally, however, Craigslist would seem to enjoy the protection of Section 230 of the 1996 Communications Act (an adjunct to the “Communications Decency Act” that was struck down in 1997 by the Supreme Court), which protects ISP’s and forum hosts (including bloggers like me accepting comments) from downstream liability for comments posted by others, even if libelous, infringing of copyright or inciting harm. No doubt, the Craigslist situation will lead to calls for rolling back Section 230 immunities; but doing so could affect the ability of any site like Blogger, Facebook or Twitter to allow people to self-publish without external review (or any ISP to offer hosting to “unlicensed” individuals). Back on Aug. 28, 2009, I had an exchange with a book author on the problem.

Craigslist had been claiming it was screening the adult ads. But there are legal theories that say if you edit or monitor content in a forum, you might increase risk of liability. But then if that were true it could pose legal problems to moderate comments, which most bloggers have to do to eliminate spam.

Claire Cain Miller(and Louise Story)  discussed Craigslist's apparent "ploy" today in the New York Times (link); the story mentions lawsuits against Yelp for defamatory posts made by Yelp users, and courts repeatedly throw out these suits because of Section 230; what's disturbung is that plaintiffs' bar lawyers ignore Section 230 and file the suits anyway, forcing dthe host to spend money (that's the frivolous lawsuit, tort reform problem, related to SLAPP).

On this Labor Day there’s a real workplace issue brewing: social media and blogging policies, as I’ve noted here recently. I want to stress that I think it is vital that employers (including, now, government agencies) state their social media policies online and make them viewable (in public) to applicants, before they even seek employment. Some government agencies (and that’s not just the CIA) have “prepublication review” policies and have some online talking papers on the way the Internet complicates prepublication review, but even here the situation is far from clear.

The whole question of "risk" associated with the new freedoms (of free-entry global speech) still sleeps but stirs occaisonally.  Will blogging and social media use become like driving a car and need (mandatory) insurance some day? It sould seem logical to me that a debate toward reducing Section 230 protections for content hosts could turn into a debate about requiring individual speakers to have insurance, a situation that the liability insurance industry has no actuarial model for, so watch out!

See also “BillBoushkafil” blog, Sept. 4, and Feb 8 2010 (many links to pre-pub problem), for related materials.

Sunday, September 05, 2010

My own submarine visit during the 1993 debate, in souvenirs

Well, I misplaced that old Sunfish cap, the “evidence” that I really did board the submarine in 1993 and interview the crew members during the debate over Bill Clinton’s plan to lift the ban on gays in the military (with the eventual outcome of “don’t ask don’t tell“), with the emphasis in the debate at the time on “privacy” and “unit cohesion”.

So, yesterday, I went to the U.S. Navy Memorial at the National Archives Metro station on the Green-Yellow line in Washington, and looked for a replacement to simulate the artifact. Most of the caps were actually for Army and Air Force, and one was for Navy Seals. I found just one submariner’s cap, $16. But there were plenty of NCIS hats and T-shirts (note in store picture).

“NCIS” (link ) stands for “Naval Criminal Investigative Service” which is actually run by civilians. (Yes, there is a TV show.) According to Randy Shilts (in the 1993 book “Conduct Unbecoming”), many of the witchhunts of sailors were conducted by the NCIS. It sound seem to me that working for them would constitute a basic “conflict of interest”. But so would being in the service and becoming a JAG officer. In fact, so would being a trial lawyer for the government at all, and have to defend the constitutionality of statutes when you don’t believe it.

For what it's worth, here's the President's Room at the Museum.