Tuesday, November 30, 2010

Mozilla will retry "do not track" but IE8 seems to do it now; a warning about free content business models

The Marketplace Section of the Wall Street Journal on Nov. 30 has a report by Julia Angwin and Spencer E. Ante, “Hiding Online Footprints: Makers of Firefox Browser Explore Do-Not-Track Tool After Scrapping Earlier Effort”.

The FTC will issue a report on “do not track” proposals by December 3, and a House committee is supposed to have hearings on it Dec 2 (about the same time that the Senate is reviewing “don’t ask don’t tell”, unfortunately for me).

Widespread use of anti-tracking capabilities in browsers by users might make it much harder for service providers to make money by offering advertising on user-generated content, so in a practical sense could affect grass roots free speech, just as other problems reported here (like mass litigation and a couple of Draconian bills in Congress giving authority to remove infringing websites) could. Internet users should value the idea that we have moved away from a society were so much selling was interpersonal but so much so that it encouraged professional hucksterism.

So advertisers have generally been cool on measures to make it more difficult to target ads that they believe consumers really want to see.

Webroot will quarantine many “spy cookies” and I’ve noticed that after running a sweep, ads sent to me seem more generic and less specific for a couple of days. (No, I really don’t need Tommy John surgery just because I blogged about Nationals pitcher Stephen Strasburg.)

The San Francisco Examiner reported today, in a story by Matt Rusoff from the Business Insider, that Microsoft IE8 already has a little-known anti-tracking tool called “InPrivate Filtering”. The story (“How to use Internet Explorer’s ‘do not track’ feature” is here.  Microsoft itself has a blog entry “Bringing awareness to Third Party content” here.

PC Magazine has a story by Larry Setlzer, based in part on the WSJ, about Mozilla’s new plans here. The last paragraph of the article is telling, about the economics of the web environment, is ominous. He writes “Free content—this web site included—will be a more difficult business proposition. Users need to understand that before they pull the trigger on their Do Not Track feature.”

I haven’t found a specific discussion written by Mozilla yet.

It's curious that as recently as Nov. 24 I reported on a glowing New York Times story on Internet business models.

Update: Dec. 8

Cecilia Kang reports on p A15 of the Post Tech blog in the Washington Post, "Microsoft to offer anti-tracking feature" in IE9, which would be more flexible than what is available now, link here. It would not depend on maintaining a list of addresses not to track; I hope it would allow for different settings for browsing different sites.

Immigration and Customs Enforcement seizes domain names and sites for counterfeit, anticipating COICA, raising potential questions about downstream liability

The Washington Post, in a crucial story by Cecilia Kang and Jerry Markon, reports, on op A16 of the Nov. 30 print version, the seizure of 82 or more domains (including domain names) by the U.S. Immigration and Customs Enforcement Agents (ICE) for trafficking in counterfeit goods.

The link for the story is here.

The action is controversial, inasmuch it foreshadows what could happen for copyright infringement and piracy under Sen. Patrick Leahy’s COICA, discussed recently here (Nov. 25).

If you enter one of the domain names, for example this ("Jordan's Box"), you get directed to an ICE page.

The ICE has its own press release here. The ICE is now part of the Department of Homeland Security but works closely with the Department of Justice also.

“This domain name has been seized by ICE-Homeland Security Investigations, pursuant to a warrant issued by a United States District Court under the authority of 18 U.S.C. #981 and 2323.

“Willful copyright infringement is a federal crime that carries penalties for first time offenders of up to five years in prison, a $25000 fine, forfeiture and restitution (17 U.S.C. 506, 18 U.S.C. 2319). Intentionally and knowingly trafficking in counterfeit goods is a federal crime that carries pentalites for first time offenders of up to ten years in prison, a $2000000 fine, forfeiture and restitution (18 USC 2323).

Here is the Cornell Law School link for 981, Civil Asset Forfeiture, link

Electronic Frontier Foundation, in a short piece by Corynne McSherry, wrote ("U.S. Government Seizes 82 Websites: A Glimpse at the Draconian Future of Copyright Enforcement?"): "It appears that the "raid" has swept up several sites that are hardly in the business of willful copyright infringement. For example, the the list of targets included OnSmash.com and RapGodfathers.com. Both sites are dedicated to promoting rap and hiphop, showcasing new artists and helping fans connect and share information about the music they love." The EFF analysis is at this link.

Alternet has a similar article (is somewhat hysterical in tone), "Here Come Homeland Security Internet Police, and They're Already Shutting Down Web Sites They Don't Like: Murky new Internet regulation laws could stomp out freedom of speech...and the Department of Homeland Security has already begun", by Julianne Escobedo Shepherd, link here. A direct quote from this piece is significant: "A few sites on the list, though, stuck out: Onsmash.com, rapgodfathers.com and dajaz1.com are popular music blogs that were generally involved in the promotion of artists, rather than outright piracy. Well-known among rap fans for posting the latest videos, singles and remixes (always hosted from third-party download sites), their seizure was shocking, not just to the hip-hop blogosphere, but to music sites everywhere. Their inclusion on a list of sites that profit from manufacturing hard goods seemed arbitrary and ignorant. Furthermore, these sites were directly involved with artists, widely viewed as outlets that could help artists build buzz and promote their upcoming albums."

Web service providers say they fear that COICA could cause them to incur downstream liability for illegal activity on their sites, making it impossible for them to offer free entry services as today. For the time being, with respect to the ICE counterfeit seizures, website operators are likely to play a shell game, re-establishing sites under other names and other servers, especially offshore; but stricter enforcement (as with COICA) could seriously interfere with "legitimate" activity by individuals and small businesses.

I know a couple of people who worked for ICE as computer programmers (mainframe) in the 1990s.

As an ethical and legal matter, counterfeiting has always been around. I remember being taught about it in grade school and doing a book report on it around sixth grade (in the 1950s). 

Update: Dec. 9

Ali Velshi interview on COICA

Update: Dec. 13, 2010

Ben Sisario has an article in tne New York Times, "Piracy Fight Shuts Down Music Blogs", link here. There is an irony in that record companies are forced to look at "leak" as a "marketing verb".

(Continued Jan. 21, 2014).  

Monday, November 29, 2010

Righthaven now has filed suits over images; what about embeds?

Two of the most recent Righthaven lawsuits apparently involve the unauthorized republication of photos or illustrations, according to Steve Green at the Las Vegas Sun Times in a story published Black Friday Nov. 26, here  Apparently Righthaven filed several more suits on Thanksgiving Wednesday, while some of the defendants were probably trying to avoid “John Tyner junk” problem at airports around the country. Apparently two of the suits, one against a law firm (Leighton Law P.A.), involve an illustration of a Las Vegas hotel.

The law is typically stricter against unauthorized reproduction of images and music than extraction of text, and it is often harder to claim Fair Use.

However, most images in Wikipedia appear to be acceptable for reproduction in blogs as long as attribution to the image source is given. Wikipedia always documents the licensing (Creative Commons, GNU Free Documentation, or public domain, depending on circumstances, and sometimes (as with movie posters) presents fair use arguments (although it can’t guarantee that the arguments would hold up).

Blogger warns users (in the application upload element) to publish only those images that they own or are authorized or licensed to use. I've wondered if people could get into trouble for photos of other people's work, like paintings; if a museum doesn't want to allow that, it could simply not allow photography (many don't).

I’ve wondered if someone could troll the Web for embeds (on sites with advertising) of copyrighted material from YouTube not yet taken down for DMCA.

I know I’ve covered this question before. I recall comments that embeds are basically links, and that generally it is OK to embed something (for which embed code is offered) as long as you don’t change it and don’t have a good reason to suspect it is infringing. (In fact, it “now” looks like I gave a link to an EFF article on the subject dated July 2007, before the trolling problem started, on Sept. 28, 2010 – and missing the flaw in the DMCA safe harbor copyright problem, now known with Righthaven.) In most cases, if a YouTube video were infringing and removed after DMCA notice, it would just stop working wherever embedded and that would be the end of it; but the possibility that a troll could make up a theory to go after the embeds for revenue sounds plausible to me, at least. (I haven’t actually heard of bloggers being accused of TOS violations in these cases.) I found a long Hub Pages discussion of the issue here today. Here’s another discussion by Christopher Heng, link.

My own take would be, when on YouTube, to stick to embeds of youtubes where you can be reasonably sure that the poster owns the material or regularly has a license to post such material. Some movie distribution studios do post their own trailers on YouTube. Some (like Lionsgate) offer embed code on their official sites for some trailers of movies but not for all. Interviews with directors, actors, authors, etc. (as opposed to TV or movie trailers) seem to me to be legitimate in most cases. “Far out” materials on topics like UFO’s, government cover-ups, etc., while seeming crackpotish, strike me as being legitimately owned by posters in most cases. I’d personally be wary of most “free movies” divided into parts on YouTube, unless provided by the studios themselves. YouTube videos with ads may be more legitimate because they presumably earn revenue for the original owners wherever they appear.

Of course, if you want to become a filmmaker, you might as well start making your own high-quality YouTube videos to embed.

The Righthaven Victims Blog has created a Google Search Story Youtube video here

Green (LVS) also has many other stories about Righthaven, such as one man (Robert Sulimanov ) sued twice over two different sites.

Remembering my own "Day of Infamy" with moral peripetia

Since I was in Richmond yesterday, I didn’t get quite around to doing a missive commemorating my own “Day of Infamy” (Nov. 28, 1961), which is explained on a blog post here Nov. 28, 2006.

However, in recent days I’ve thought a lot about what parents expect in general, and how it was when I came of age. Parents tied in a traditional marriage with children thought they were taking on both the responsibility and the power to “train” their kids to become social beings (even fully "human" beings) when they would have to, to put aside their own personal goals and focus on their own individual talents (“gifts of the spirit”) and live for the good of the family and of the community around them (and even embrace a little "irrationality" and contradiction or some double-standards). We’ve lost a lot of that sense of bondedness in the past decades of increasing individualism, but so much of it was mandatory then.

In Richmond VA, yesterday, I did visit the First Baptist Church on Monument Blvd at Boulevard, next to the Stonewall Jackson statute. Dr. James Somerville, formerly pastor of the First Baptist Church of the City of Washington DC, started out by talking about the self-protective reflex within the body: the rush of adrenaline and tightening of the heart, and the tendency to grab a spear (or call a lawyer in our world – even a “Righthaven”) when one perceives an existential threat one’s own deliberately chosen purpose in life -- and when one feels 100% responsible for one’s own life.

I notice “something else” in the papers this morning (Monday, early). A number of celebrities (including Justin Timberlake, whose arms keep changing) have said they will stay off Facebook and Twitter (I don’t know about Blogger) until they raise a certain amount of money in connection with World AIDS Day tomorrow. That sounds like a young people’s “30 Hour Fast” that a lot of traditional churches observe in November before Thanksgiving. Very impressive teens will troll a congregation to raise money for these events. Matt Damon’s mode of work on clean water (“Running the Sahara”) impresses me.

I’ve never been one to focus on “giving up” specific things to raise specific amounts of money or resources. If you want to give to a cause, you make the donation.

On Sirius (Sat 1, Channel 2) in the car radio, I heard Josh Groban’s new “Hidden Away” (His “You Lift Me Up”, occurs in Charles Villiers Stanford Irish Rhapsody, #1), and Lady Gaga, honoree of ending “don’t ask don’t tell”, sung “Bad Romance”. Ricky Martin (recently self-declared) sung “She Bangs”. And I-95 had one backup after another, following a sine wave.

I’m struck by moral pressure to show affection for others, not chosen (not spouse or one’s own children), and under terms not chosen. It seemed in 1961 that parents controlled that.

Second picture: look closely for William and Mary flag (in Carytown in Richmond, VA).

Friday, November 26, 2010

Maybe the Luddies have a point

Back in 1977, I remember having a conversation with a “date” on an elevated NYC subway platform in the Bronx about whether technology frees people.

I look at my own experience. The “PC revolution” of the 80s followed by desktop publishing and then the Web gave me a chance, in my 50s, to become my “own person”, then “get published”, and perhaps become a professional “libertarian Pharisee”. Now I have to prove I can make my way of delivering news and connecting the dots (and “keeping them honest”) into a business model. I didn’t do this anonymously or even pseudonymously, but I did accomplish it while leading a kind of “double life”, as an individual contributor in the IT world, and a political book author and web publisher at the same time.

But along comes social networking and the idea that you really have only one “radically transparent” identity. You have to decide what is going to pay your way (and support a family, probably) first and then use the “self-broadcast” opportunities afforded by the Internet to project only that reputation. With all its promise of freedom, the Internet, with the “online reputation” issue, becomes a tool for forcing social conformity.

Even medicine has become part of the technology paradox. While it extends our lives and quality of life more many people, it also adds years of dependency for other adults (who in past generations would have passed away), forcing unchosen responsibility on their adult children, to the point that we are having to rethink the whole idea of “personal responsibility’ when it comes to family, back to older models. We keep coming back full circle, like the subway car in “The Matrix”.

For a long time, I never understood the claims in "Ted" Kaczynski 's "Manifesto" that technology ultimately suppresses freedom, but at least I see that it poses feedback in karma that ultimately brings individualists back into answering to demands of conformity and duty from others.  Yes, you can say that the industrial revolution put people in factories and suppressed "freedom" in some sense (as with minimum wage dormitory factories in China today). Some cultures, like the Amish, oppose the use of most technology because their (faith-based) belief systems require that they accept interdependence on others (and "not too much efficiency").

Thursday, November 25, 2010

Senate committee approves dangerous COICA bill, could let government shut down "infringing" sites without due procss

The Washington Times reported recently that the Senate Judiciary Committee had approved the COICA, or the “Combatting Online Infringements and Counterfeits Act” originally introduced by Patrick Leahy (D-VT), S 3804, discussed here earlier Sept. 21. In fact, TWT has a strident editorial, titled “Democratic Internet censorship: Senate committee endorses Chinese-style control of the Web,” link (website url) here.

The core provision in the language of the bill (from govtrack, reference given in previous post) is:

"‘(A) primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer—

‘(i) goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays; or [<-Struck out]

‘(ii) to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Act entitled ‘An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes’, approved July 5, 1946 (commonly referred to as the ‘Trademark Act of 1946’ or the ‘Lanham Act’; 15 U.S.C. 1116(d))."

TWT (and to some extent, EFF and other organizations) have maintained that the bill would allow the DOJ to remove any domain whose primary purpose is to present infringing material or even to give links to it. In particularly, it would seem (even to me) that the bill could be construed as taking down “news aggregation” sites that have caught the wrath of the Associated Press. Actually, Righthaven’s suits have been more about wholesale copying of specific articles (for the most part), regardless of whether a site had other “purposes” such as criticism or comment. Also, it’s odd that the bill mentions “commercially significant purpose”. It would seem that a website with no advertising might even be more vulnerable to shut down.

It does seem that a DOJ might be able to order, without due process of any kind, not only the sudden removal of a website but also erasure of all references to it from major search engines.

This would seem to be unconstitutional in terms of the 14th Amendment, once a website is regarded as a property interest. Some people say the bill would circumvent DMCA safe harbor provisions.  It could also set a dangerous precedent in the debate on "implicit content", making websites vulnerable to takedown under other pretexts related to purported "purpose" (or lack of professional connection).

It’s interesting to see the government going so far (in terms of constitutional threat) to protect copyright, as opposed to other public goods like reputation and privacy, as Daniel Solove has pointed out (posting Tuesday Nov. 23).

Wednesday, November 24, 2010

Internet video and film viewers don't object to some "commercials" -- a good thing for business models

The New York Times has a story Nov. 22 by Brian Stelter that bodes relatively well for business models predicated on Internet advertising, link here.  Research done by Turner suggests that viewers don’t necessarily object to ads that introduce videos and films or online rebroadcasts of show episodes or that occasionally interrupt them, or sometimes appear in the crop space for video.

Over time, the time taken by ads on broadcast TV has been approaching 25 percent. A typical one hour episode runs about 43 minutes without ads.  Some rebroadcasts have been punctuated by commercials.

Although subscription films streamed on the Web by Netflix, and sometimes by Google (as with the Tribeca film festival) don’t have interruptions, free films, as those on Logo, often do.  Sometimes there are technical issues resuming a film after a commercial.

The findings do map over to user-generated content on the web, and the business models of the service providers and ISP’s that enable this modern-day mode of social networking and, yes, self-broadcast.

On the other side of the marketing fence, vendors have started employing "deep packet inspection" again to target ads to Internet users; the Wall Street Journal article by Steve Stecklow and Paul Sonne is "Shunned profiling method on the verge of comeback", Nov. 24, link here, consolidated by a site called "Njuice".  Bing shows that the WSJ has covered packet inspection occasionally for several years. 

Tuesday, November 23, 2010

Earlier videos by GWU law professor Solove suggest modifying Section 230

I found a lecture by George Washington University law professor Daniel Solove from January 2009 today on YouTube. I inserted the embed into my book review of his tome on Reputation posted January 12, 2008 (on “Bill’s Book Reviews” blog – navigate with Profile), but I noticed that Solove does favor some modifications in the way we apply the law in the US to protect reputation and privacy.

Solove was critical of the way courts have over-interpreted Section 230 of the US Telecommunications Act of 1996. He thinks that “distributors” of information posted by others ought to be exposed to liability for libel or invasion of privacy torts if they have good reason to know that the information posted by others actually is defamatory or invasive. The trouble is it would be difficult to draw the line on when a blog owner accepting comments or a forum moderator really “knows.” However, he thinks that downstream liability issues could be handled by safe harbor mechanisms similar to the DMCA for copyright (although we know, from the Righthaven copyright cases, that there could be more issues with how someone qualifies as an agent able to be contacted for notices).

He made an interesting comparison between privacy and copyright. If you take a picture of someone in a public place, you own the copyright on the use of the picture. But the subject, in the eyes of American law, probably enjoys little or no control over the use of an image of him (unless it is patently offensive). He suggested that some events in public places have an expectation of “forgetting.” People don’t expect others to keep track (online) of what they buy (as identifiable individuals) at grocery stores or pharmacies.

Solove notes that British law is more protective of people’s private information, the sort that is subject to gossip, than American law.

He also noted that social and family relationships create serious problems in practice, like the “Gliese Problem” of my previous post. He cited a case of defamatory information about someone who lived in a particular house, and the family that had moved in after that person left had to deal with the vigilante threats.

Here’s another YouTube video, two years old, of Solove on C-Span, talking for about 25 minutes on “The Communicators” about reputation and privacy.

Please also note that today I posted a review of the book “Radically Transparent” (Andy Beal and Dr. Judy Strauss) on my Book Reviews blog. There, you can aggregate by label all the posts on books about online reputation, and now there are a lot of them.

On Aug. 28, 2009 here there is an interchange in comments with another Internet law attorney (John Dozier) about propsoed Section 230 changes.

Monday, November 22, 2010

Do Internet users (especially the rugged individualists) face the "Stephen Hawking Problem"?

As the Universal-Rogue film “Skyline” opens, a dazzling but peaceful downtown Los Angeles, almost asleep at 4:27 AM, is suddenly showered with alien fireballs.

The mayhem that follows (it couldn’t be fixed by Allstate) may not matter here, but it makes a point. Call it the “Stephen Hawking Problem” or the “Gliese Problem” (named after the nearest star that might well have planets with civilizations, about 20 light years away). A few decades ago, we of Earth started broadcasting our existence into space. With SETI, we could just be attracting intruders we don’t want. There wouldn’t be much we could do about it. It might start with an electromagnetic pulse (EMP) from the invading extraterrestrials. We wouldn’t know what hit us.

There is a much more earthbound context in which this sort of thinking can matter. People can draw attention to the fact that, as individuals, “they exist” and “they matter”. Technology, most of all the Internet, has done this. But this has happened in a culture that has been used to hyperindividualism for only a short while. In a practical world, when one attracts attention to oneself, it can draw limelight (favorable or not) to others connected to oneself, whether one wants them to be or not – it’s not always “the axiom of choice.” These are the notorious matters of “online reputation” and ‘the privilege of being listened to” already covered.

We've seen microconcerns about this already from the insurance industry, which suddenly wonders if social media users are simply making themselves marks for crime.  On the other hand, such worries are a sign of giving in to "mob mentality", familiar in the world of gangs, snitches, and bullies.  Indeed, the Internet and the new freedoms for self-broadcast will test our commitment to civilization and dependability of law and order.  And, as the book by Beal and Strauss points out (Nov. 19 posting), self-promotion online has become a necessity for most people. At the same time, we wonder how far we have traveled in our legal and ethical systems with the focus on the individual rather than the family or group.

The rise of individualism, which certainly helped propel the growth of the Internet, has seen a paradigm shift in our moral mindset. Today, we tend to see things in terms of choice and then taking responsibility for the consequences of choice (especially pregnancy, STD’s, or other personal health issues). That’s valid generally (even if some kids wonder why they have to pass algebra), but when I was growing up in the 1950s and coming of age in the 1960s, “morality” had a lot more to do with how you handled the obligations you couldn’t choose. The issue that brought all this to bear in the 1960s was the male-only draft, with the controversy over several kinds of deferments (especially student). Today, we are quickly finding this out with eldercare (and sometimes other medically-related family obligations, all of which can make people interdependent regardless of choice -- and disrupt talented introverts with demands for other-centered, gender-based "social graces"), although the attendant moral issues still seem to be hidden in plain sight of the media. One reason that we have to worry about “unchosen mandates” is that, if you don’t perform them, you’re depending on the sacrifice of someone else who did. They call that “bad karma”.

I still remember the posters of the mid and late 60s, reading something like “Choice, not Chance, if you join today’s Army”.

Wikipedia attribution link for “Red Dwarf Planet”

Sunday, November 21, 2010

Another MSNBC suspension raises questions about news organizations employee policies on bias and political activity

MSNBC suspended another host, this time Joe Scarborough, anchor of the Morning Show, for two days for giving $500 a piece to a number of friends and/or family members running for local offices. He said he did not cover the races of these friends on his show.

A typical story is by Kenneth P. Vogel, here.

Recently MSNBC has suspended Keith Obermann. And NPR had fired Juan Williams for “biased” remarks on the air.

The Scarborough suspension is raising questions about the policies of news organizations banning their anchors and sometimes employees from political activity and even commentary. MSNBC has been strict in its policy regarding political donations, even though it is viewed as much more liberal than the NBC network itself; Fox has no such policy.

One problem is that some news reporting does show a mild amount of political or social “bias” even though being thorough and “objective” by most standards of judging content. For example, Anderson Cooper’s AC360 “Keeping them Honest” probably shows a “mainstream” liberal bias; Cooper’s own views certainly come through the way he questions some “guests” and choice of topic, as in recent coverage of Internet anti-gay bullying. And many newspapers are known to have a certain political bias, such as the strongly conservative Washington Times.

Concern remains that the ban on partisan or biased behavior could spread into other areas, such as personnel areas in the workplace, such as with managers or underwriters.

Joshua Greenberg has an interesting perspective on the New York Daily News site "Keith Olbermann's suspension by MSNBC was right - but there's a double standard" here, by Joshua Greenman, who writes  "it's probably time for the network to write new rules for those who function primarily as critics and cheerleaders rather than objective observers."  But in the HR world you would have a similar difficulty in deciding what kind of reporting relationship could affect a manager's or professionals's permitted blogging or online activity.

TJ Walker comments on the Scarborough suspension and news organizations policies here. Walker says Scarborough is paid to perform as a commentator and to "be biased".  He says MSNBC is "out of touch."

Friday, November 19, 2010

Paying for some stories or images raises questions of journalistic ethics; what about paying for reviews?

The Washington Post Style Section on Thursday Nov. 18, on p C1, featured a story by Paul Farhi on paid journalism, “A media market sold on sensation” in print, “Up for audit: ‘Checkbook journalism’ and the news groups that buy big stories”, link here.

Mainstream newspapers and broadcast outlets do not pay for leads, tips or stories. They do not pay for letters to the editor or op-ed columns from “ordinary citizens” (syndicated columns are paid). They say that this necessary for journalistic integrity, as covered in an ethics session reported here Nov. 10. Smaller local newspapers often do pay for articles from ordinary community members, however.

Sometimes news organizations do pay for the right to use images of people, according to legal notions of the “right of publicity” as recently discussed here.

However, paying for information, especially by tabloids, has sometimes uncovered stories of major “political” importance.

Another aspect of the “moneychanger” issue with journalism is self-publishing, or subsidy publishing, as recently discussed (Nov. 13) here. Authors have even paid for book reviews, which sounds more than a little unethical.

There are also systems to be paid to review various products and services on blogs, such as “Review Me” (link ) and Sponsored Reviews (link ) As noted before here, the Federal Trade Commission has recently written rules forcing bloggers to disclose they were paid. Another mechanism is that motion picture distributors sometimes send advance DVD’s not only to well known critics but even “underground” bloggers for review; but bloggers are supposed to disclose that they received review copies. I have done this a few times on my Movie Reviews blog. The recent (2008) book “Radically Transparent: Monitoring and Managing Reputations Online” by Andy Beal and Dr. Judy Strauss (soon to be reviewed in the Books blog) covers this opportunity on p 139 with a section called “Buy a little blog buzz”.

Picture: A possible minimal (F0) November tornado in Arlington VA? Winds definitely trees down in the area following a pattern of wind rotation. I say, there was a mini-tornado, maybe 85 mph gusts in it. Very little damage to homes or the hospital. Nothing like Kansas, where I went to school. No, I won't be paid for this picture by a TV station.

Thursday, November 18, 2010

EMI, MP3Tunes in copyright fight over "digital lockers"; an issue for owners of music collections?; more on Righthaven and DMCA

Back in early 2008, music giant EMI (known to classical music lovers for Angel records, which used to be a label of "quiet sophistication" according to a 60's era friend) sued an innovative company MP3Tunes, which allows Internet users to store their music files “in the Cloud” in “digital lockers”, reminding one of high school hallways, perhaps. EMI claimed copyright infringement, since EMI claims it has the right to control how its music is distributed. MP3Tunes argues that acting as an “extra space” or secure storage facility doesn’t imply a different form of overship.

There was an explanation of this case placed in Exchange Magazine in March 2008 by Ryan Radia, link here.

Erick Schonfeld documented that defendant Michael Robertson had won an early round, in TechCrunch, here.  Robertson wrote about the case in his own blog here.

Remote music storage could be important for other reasons: preservation. We’re finding out that CD’s and DVD’s are not immune to damage or deterioration over many years, and music collectors may want to store their collections in password protected lockers in the Cloud.

Electronic Frontier Foundation recently posted an amicus brief in the case, pdf here  where it argues that EMI is undermining the Safer Harbor provision of the DMCA, already controversial recently because Righthaven has found a way to circumvent it for some defendants.

This may be a good place to note progress in Righthaven, where there was a lull in early November but a spate of cases yesterday, bringing the total to 175. See the “Righthaven victims” link given here September 8, 2010, where the site notes that a defendant Robert Zumbrunnen has countersued, who says he will not give in to shakedowns despite his modest means. Righthaven is trying to back out of its suit against the Democratic Underground because of a countersuit by EFF; the Las Vegas Sun has a copy of Righthaven’s motion (PDF) here.

Wednesday, November 17, 2010

Facebook's plans to revamp email show its "paradigm"

There’s a lot of controversy over Facebook’s “Gmail killer” but the most curious is the idea that people have a “cognitive load” in remembering “hands separately” (from my piano background, thank you) how each of your hundreds of “friends” prefers to be contacted. That was Fred Yager’s take in Consumer Affairs in a recent post here.  Other sources describe Facebook's announced email service as like the digital map of a telephone company switchboard.  

The comment demonstrates the notion that Zuckerberg sees his invention more as a way of modeling and mapping social relationships (and encouraging them to “multiply”) than in publishing new connections in political debate (which was my concern as I took to the Web (1.0) in the late 90s after publishing my first book). That actually could have legal significance down the road in some matters dealing with implicit content.

There's no question that Facebook will face even more questions about privacy and preventing spam in its new service.

Psychologists, however, say that human beings have the ability mentally to know about 150 people well. Not thousands.

What’s curious is that I found an email app on Facebook provided by JSupra, a legal services firm, with the motto “give content, get noticed.” The Email signup page on Facebook seems to be here.

A Neptune,  New Jersey pastor advised married members to give up Facebook to avoid extramarital temptations, "Thou shalt not Facebook", link here.  Married church officials who refuse to dump Facebook will be forced to resign their jobs.  So, stay single?
Rob Pegararo’s "Fast Forward" column in The Washington Post Nov. 15, titled “With ‘Messages,’ Facebook tries to run the Switchboard”   offers constructive criticism, especially about the lack of subject lines.
Here is PCWorld’s YouTube video giving a “first look” at Facebook’s messaging service. It seems to be about speed (for kids), not accountability.

Update: Nov. 25. Mark Zuckerberg looks pretty sharp in this hour-long interview:

Tuesday, November 16, 2010

Video game spoofing college football players becomes major "right of publicity" case

Katie Thomas has a front page story on the Tuesday Nov. 16 New York times about another wrinkle in Internet law and freedom of speech: the apparent comingling of copyright and “right of publicity”.

The case is a legal battle between former college football quarterback Sam Keller, and a media company called Electronic Arts, along with the National Collegiate Athletic Association and the Collegiate Liscening Company. EA used the players a virtual participants in video games, with name but with the same jersey number and other matter identifying them. The NCAA does now allow product endorsement by college athletes.

The area of law here is “right of publicity” which generally means that a celebrity’s likeness may not be misappropriated for commercial purposes without permission. It’s less clear sometimes when there are legitimate First Amendment speech issues, such as if a blogger writes a post about a celebrity and includes a likeness (and perhaps there ads, making the blog legally “commercial”). For example, on a recent review of a baseball movie (“The Babe Ruth Story”) I embedded a comical video with San Francisco pitcher Tim Lincecum as supporting material (Movies blog Nov. 2).

The link for the New York Times story is here.

Plaintiffs are concerned that any party publishing or distributing any video or image material other than an actual ad could circumvent the right of publicity, denying some people income they feel they have earned. Yet “right of publicity” should not be confused with “copyright”, because you can’t copyright a name or a likeness (but you can copyright a specific image of a likeness).

On the other hand, bloggers who take pictures of celebrities at public events or in discos could be at risk if EA loses.

There was a Supreme Court ruling in 1977 that defended the publicity rights of Hugo Zacchini, a circus performer shot out of a cannonball. The case was Zacchini v. Scripps-Howard Broadcasting Co., with the ruling in Justia here.

It's not about You, it's about The Rules

One justification for my writing and blogging is to connect issues, and sometimes it seems to me, well, really there are “no issues.” If everyone kept his (or her) promises, if everyone followed “the rules” and took responsibility (and bore full consequences) when she didn’t, there would be nothing to discuss.

OK, it isn’t that simple. But it’s really, for me, at least, not about “the people”; it’s about the “rules” themselves. Do we (really) need them?

Ah, rules! Some of us want to make a psychic career of seeing everyone play by them. Baseball gives us a good geometric paradigm for “unfairness”: every outfield in MLB has different dimensions and fences; “ground rules” are local and give the stay-at-home the advantage.

In pure libertarianism, everyone makes her own choices and is held absolutely responsible for the consequences of the acts that follow these choices. It’s not hard to see that ultimately this kind of “consequentialism” can lead us to some dark consequences, for some individuals, that we don’t want to see.

The idea that you should honor your contracts and pay for what you consume is not in itself controversial. But even in a society predicted on the rule of “enlightened self-interest”, it soon becomes apparent that you need some rules.

A good example would be the need for “reasonable” financial regulation (again!). True, people who got into underwater mortgages may be “guilty” of trying to get something for nothing and getting burned. But as to the ultimate consequences in a system with so many derivative financial products, “nobody can see it.” True, though, looking back to about 2005 (no shared sacrifice after 9/11, just go shopping) it sounded too good to be true. Like most scams, it was.

Or how about the “issue” of enforcing copyright? We’ve heard about a lot of controversy over copyright trolls (Righthaven, the US Copyright Group, RIAA), about DMCA Safe Harbor (which doesn’t “protect” everybody like we thought), and now the P2P police on campuses. One problem is that the “property right” inherent in copyright is very different going from one “intellectual property” owner to the next. There’s far from universal agree on what is “fair use” because the intentions of the originator vary so much. And then there is the modern issue of “implicit content.”

That brings me around to, well, “societal obligations” expected of us all merely for being members of a community. We used to understand morality in terms of “obligations” back in the 1950s or so; a recent film about the Israel-Palestine issue (“Encounter Point”) explains how that kind of perception affects both Israeli and Muslim societies today. Probably it’s “family values” where moral notions have changed the most. Today, the “Dr. Phil” types tell teens and young adults not to have babies until they are ready for the “responsibility” of dependents. But earlier generations didn’t perceive “responsibility for others” as an item of personal choice; they couldn’t afford to. Parents, by having children within marriage, extend social units onto children who, even as adults, have certain expectations of loyalty and non-selective [especially cross-generational] affection defined for them; they attain “equality” only marrying and extending the lineage themselves. Probably the most obvious trigger for my own perception of “obligation” during my coming of age was the male-only military draft, with all the “unfairness” of deferments (first for fatherhood, then for students), which implied that every person takes risks for others (men go into combat, women have children, which used to be much riskier) to earn their place in the world; but then some people were more “worthy” of shelter from risk than others. We all know the indignation that this caused. But today, the big problem that will bring the notion of mandatory social obligation back is the exploding need for eldercare. It could hit people who did not have their own children (and had always defined their own goals and pursued them without disruption) particularly hard.

Societies, then, rightfully concerned about sustaining themselves, make mandatory rules that everyone must follow. Yes, we do see this in the Bible with the “laws” that the “chosen people” set up to protect themselves after the Exodus. The point is not that those laws (or any other set of laws, like the Koran and then Shariah) apply to us, but that probably some sort of “rule set” will. Maybe it means “equal rights” and “equal responsibilities”, more or less. That’s why “gays in the military” became a central issue for me after Bill Clinton brought it up (with the outright ban morphing into “don’t ask, don’t tell”). It mapped to the capacity share responsibility – and risk, even when somewhat gender related – equitably, so that rights could be equal. One could look at gay marriage and gay parenthood the same way.

The problem with rules is that they take on a life of their own, become their own end. People start to measure themselves and then other people by moral yardsticks, and can even become addicted to the psychological “pleasure” of doing so. Perhaps that may be one reason why most religious teachings do make so much of social experience and accepting interdependence (rather than simple “personal responsibility” as libertarians define it), and the idea that infringements on the self, narrowly defined, will always happen in a free society. Hence, pastors like Rick Warren say, “It’s not about you” and we come full circle. Maybe it's about the "war" between those who accept interdependence and don't want to let go of and take criticism from those who are more independent.

Monday, November 15, 2010

Hedge funds and banks lend for mass litigation

The New York Times has a big front page story Monday November 15 about the way hedge funds and banks and other investors are bankrolling mass litigation, mostly in the environmental liability and workplace areas (call them “Rainmaker” cases if you like, after John Grisham’s novel and movie), or medical malpractice, divorce, and class actions. Some of the investors include Counsel Financial and Oasis.

Some states have laws trying to curb the practice, but they seem to be ineffective.

The story by Binyamin Applebaum is titled “Borrowing to Sue: Putting Money on Lawsuits, Investors Share in the Payouts”, link (website url) here.

It doesn’t take much imagination to link this to the mass litigation of copyright trolls, including Righthaven, and the US Copyright Group. Curiously, there is a lot of other mass litigation in Nevada over real estate development.  The political or legal climate there seems to encourage it.

Saturday, November 13, 2010

Self-publishing back on the "Block"?

This week, the media reported a controversy over a self-published Kindle book by Phillip Greaves, with a title and intention that probably most people find objectionable. In a follow-up show on Anderson Cooper’s 360 on CNN, the comment was made that many “questionable” books on Amazon are self-published and come from amateur sources.

I discussed the Greaves issue on the TV and Books blogs recently, and won’t defend or condemn its appearance on or removal from Amazon right now, other than to say that this was mostly a business issue and not really a legal one.

But I’m rather concerned about the swipe at self-publishing, an opportunity that goes back to the days of Walt Whitman.

At least one suspense novelist, Vince Flynn (Minnesota) started out with a self-published novel from his “Cloak and Dagger Press”. In the past ten years, print-on-demand has blossomed, but been criticized as a copout for writers could “couldn’t make it by New York standards”. Some people say “self-publishing doesn’t count”. And some reviewers won’t write up self-published books (I do on the books blog).

Generally, cooperative publishing houses have contracts that require authors to indemnify them against legal liabilities, and this may be true sometimes for ISPs (I don’t know if Amazon has such as clause); in practice, the enforcement of these clauses has been very rare. And like Amazon, most self-publishing houses say they have policies against crackpotism or titles that are obviously offensive (such as promoting terrorism).

One problem with self-publishing can be quality control, which is tedious. Even conventionally published books from major houses have more typos and errors than they used to. Greaves’s work was criticized for gross spelling errors.

But the print-on-demand world certainly has made it easier for authors to control their work. In the old days of subsidy publishing (Vantage, Exposition), you could lose control of your work even after paying them to publish it – and it was very expensive. A typical novel cost about $15000 to self-publish in the late 1970s.

Of course, this leads back to the Internet. There’s nothing to stop an author from selling an ebook himself from his own website, other than the practical security and privacy concerns of processing credit cards, which may become legally trickier in the future as privacy standards increase. Huge wholesale sites like Amazon take care of this beautifully, but then an author has to follow their rules. The danger is that a bad experience could lead Amazon and BN and other sites to not accept self-published material, or perhaps only accept it from print-on-demand houses (iUniverse) able to provde some oversight.

We lead back even further into the Internet, because blogs are conventional sites can become a form of self-publishing (in fact, Web 1.0 evolved as a self-publishing mechanism before Web 2.0 added and supplanted it with social networking). Blogs, as we know, are often supported by advertising (like broadcast television), so that the audience experiences it as “free” but it really isn’t (hence more debates and mass litigation over copyright infringement).  Blogging software even offers ways to turn blogs into books (such as with Blog2Print here).

Instead of outright censorship and copyright litigation, the biggest problem on the Internet with “self-published” materials may turn out to be “implicit content” and the objection to “recreational outrage” or “gratuitous speech”, which, because it doesn’t do obvious tangible “good”, could in some cases be interpreted as intended for harm or as potentially disruptive to employment or other business responsibilities (or impossible to insure against media perils, if that ever becomes required). That tracks us back to the problem of “the privilege of being listened to.”  I guess the Pharisees "with their much speaking" no longer were earning that privilege (during the time of Christ).

So why do it? Well, I don’t like letting others (especially organizations) speak for me, because they can’t tell the truth. Like Jesse Ventura, I don’t really like political parties (or partisanship). Without self-published speech and its legitimacy, we leave the world to lobbyists and pork. Even the professional news organizations can’t get it all right (just look at Fox, NPR, MSNBC, etc).

Nevertheless, Anderson Cooper, you made it the old fashioned way. Go ahead and “keep ‘em honest”.

Friday, November 12, 2010

Georgia university will turn over all P2P use to police!

At least one university, Georgia’s Valdosta State, has installed monitorware on its servers to catch all attempts by users to use P2P services. The university says it will turn over all intercepts to police. The problem is that not all P2P (by a long shot) is for piracy; much of it is legitimate and occurs with permission of individual rights holders.

The US government this summer started requiring campuses using federal funds to stop illicit fire-sharing. But the attempt may be an overreach, and is another example of “downstream liability” problems.

EFF tweeted the story on Torrent Freak, by Ernesto, link here.

Thursday, November 11, 2010

Do people need more "real life"? Forced and voluntary downsizing makes us wonder

It looks like some people are downsizing in order to be “out in the world.” A young man in this MSNBC video says that without many possessions, you’ll go “out in the world”.  (He gets his possessions down to what fits in a backpack.) That is, the “real life” world, not just “being alone together” on Facebook or Twitter. Brian Williams called it “Back to Basics” on NBC Nightly News. Most of the replies the next day were from women.

Maybe this goes along with “eliminating desire” or “minimalism”.

Sometimes, though, one needs to be alone, with enough tools to create some sort of works – music, writing. Curiously, arts have sometimes flourished after real hardship, such as in Beirut after all the destruction of the 1970s (as in Lawrence Joseph’s book, on my books blog Nov. 9). But, of course, producing and publishing work without the feedback of people suggests real conceit.

Wednesday, November 10, 2010

Society of Professional Journalists holds debate on ethics in journalism (vs. political activism) at landmark Washington DC church

The First Baptist Church of the City of Washington DC held a forum this evening about Journalism Ethics, cosponsored by the Society of Professional Journalists, DC. (twitter at “#SPJDC”). It was preceded by a hors d’ouvres supper.

The panel comprised three people: Stephen Taylor, former White House Correspondent for ABC News (and Satellite News), Andrew Alexander, ombudsman for the Washington Post, and Christi Harlan, former staff writer for the Wall Street Journal.

The SPJ Code of Ethics, passed out in the meeting, is here.

The general tone of the comments was that user-generated content and social media (and “amateur” blogs which sometimes have considerable original news substance) were presenting ethical dilemmas for newspapers in verifying accuracy of stories. The panelists also drew a distinction between “fairness” and “objectivity”, the latter of which is never completely achievable.

There was also commentary from the panel about the recent incidents involving NPR (Juan Williams) and MSNBC (Keith Obermann). One panelist expressed the view that the firing by NPR was appropriate because he could never be “trusted” again to report on many issues. Alexander suggested that if Washington Post news stories opined, the Post would lose readership. The view also came out that not only should journalists not make campaign contributions, they also should not sign petitions and some people believe they should not even vote!

Alexander explained the unusual role of the ombudsman, who has no boss; he also said that in a newspaper, the newsroom and editorial room are completely separate and sometimes act as rivals.

There were many interesting audience questions. One deacon mentioned the lack of sacrifice given our two wars (no draft, no rationing) and asked how a newspaper would report on this, and the general answer was that a reporter would have to solicit many views on this and write a balanced piece.

I asked whether the “no political activism” policy for journalists could extend to managers in the general workplace (under hostile workplace concerns). No public answer, but there was a private conversation later, and it seems to be an unexplored area, yet intuitively sounds like a bug HR matter. Furthermore, panelists said that newspapers do agonize over crafting social media policies: while social media are important to their businesses, it's obvious that it doesn't take much to slip into political advocacy.

SPJDC also passed out a handout “Demanding an end to censorship caused by ‘Mandated Clearance’”. The statement starts out with “Whereas, it has become increasingly common for public agencies at all levels of government to prohibit their employees from communicating with journalists unless agency public relations officials are notified and/or those officials grant clearance or permission for employees to speak out…” I could not find a link for this online at SPJ.

I wondered, do these policies include “amateur journalists” – that is, bloggers? Does this link back to the “pre-publication review” policies of some agencies?

Tuesday, November 09, 2010

NLRB takes up case of EMS worker fired for personal Facebook posting about company or boss

The media now report a case where the National Labor Relations Board is taking a case of an emergency medical technician fired for making a Facebook post critical of her supervisor. The employer was American Medical Response in Connecticut.

The company had a policy forbidding employees to mention the company or other stakeholders on any website (including social media) in which they identify themselves (especially post pictures of themselves). Back in 1999, in a discussion with my own employer on “conflict of interest”, we decided that this was their policy, although it was kind of after-the-fact (I requested the discussion). I have always followed that rule myself. It is acceptable to mention a company after retiring from it or resigning, as long as legitimate business or legal confidences (like customer information) are respected. The (EMS) company (in the case above) also had a policy against making disparaging comments about stakeholders of the company even if not clearly identified. I have likewise always followed that rule. But numerous people have been fired for criticizing their bosses, coworkers or companies online, as with Heather Armstrong (“dooce”) back in 2002.

Marketing Pilgrim has a story (by Frank Reed) which definitely plays Devil’s Advocate with both sides of the issue, link here. The article mentions a book “Radically Transparent” about online reputation and work (from 2008), and I just ordered it from Amazon (price now reduced).

Steven Greenhouse has a New York Times story “Company accused of firing over Facebook post”, link here. Lafe Solomon, of the NLRB, is quoted as saying “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.” The NLRB’s page on employee rights is here.

There is a good question here about how the First Amendment applies. It generally applies only when government suppresses speech, not private companies, because of “freedom to contract” and “employment at will” (apart from union contracts). However, federal and state laws and administrative rulings often give employees, especially non-union, other rights in the workplace.

Conceivably, the NRLB could reach a deal with employers whereby they could require that specific discussions by employees about their employers and stakeholders be out of the reach of search engines and be under privacy controls, as long as those (like on Facebook) worked properly.  Given recent controversies in this area (the "everyone" option as Zuckerberg defined it), defining such controls could be a tall order.

I've already expressed concerns before that employers might want to regulate the "publicly searchable" political activism of management employees, and this can have ramifications in other areas.

I notice that many other newspaper sites “copied” the NYT story today. I’m surprised it’s not an AP story. I’m sure the newspapers have permission (readers of this blog know my concerns about the “Righthaven mess”), but I’d like to see more “creativity” among the other newspapers.

Update: Nov. 10:  There is a coordinated post on my IT Jobs blog today.

Sunday, November 07, 2010

"I told you so" ("The sky is falling!")

I remember that right of the outset of the Disney animated 3-D film “Chicken Little”, that Little’s daddy chides him for putting “the sky is falling” all over the Internet and making a fool of himself and therefore his whole family. (Whoa, online reputation defender again!)

I track the “catastrophism” movement and do write a lot of posts warning “us” about all the loopholes in our lives, ranging from legal ones (my favorite “implicit content” concern, as well as the DMCA sieve that resulted in Righthaven) to manmade catastrophes (bioterror and EMP) to natural apocalypse (the Cumbre Vieja volcano, and the latest fad of a 2012 storm of coronal mass ejections, as in Lawrence E. Joseph’s new book “Aftermath”, and, yes, I will review it soon; sorry).

Okay, then I can say “I told you so.” If I’m still alive, or if there still exists a power grid and an Internet so people will “find it”. Or, maybe “It won’t be so bad after all.” But maybe it will. I have a friend in Minnesota who loves to say we have had too much freedom, are due for a Purification and mass expropriation. But the radical Left used to threaten this all the time.

I’m quite struck by home much all this disaster talk attacks introverts. Most people who make revolutionary innovations do a lot of their work alone, without anyone’s permission. Yet, the rest of the world’s “average joe’s” regard such “troublemakers” as slimeballs or parasites. A world with no power grid will not have Facebook, and it’s owners will be brought low like the rest of us, maybe. Well, it won’t have “do ask do tell” either. The fact is that civilization has always nurtured a certain ethical paradox: it needs to get people to make risky social commitments (so they can marry and make babies and raise the next generation), but it needs people who relish creating things on their own, too. It needs egotism and “selfishness” and even a pinch of contempt (Zuck’s “they ‘trust’ me”!) just as it needs social cohesion and solidarity. And, if we do have to start over in 2013, it will need them again if we don’t wind up like the Neanderthals next time around. 

As for the "introvert advantage", I guess the Smallville show got it right: be "different", but don't think you're "special."

As for "do ask do tell", I do think it's useful that one person keeps track of all the loopholes in our wired world that can take us down. (I guy at the movies ["Inside Job"] says about my blogs, "I'm glad somebody keeps track of what is going on.") Because rather than having a family disaster plan (and accepting the idea that every one must have a family, or be assigned one), I think that most apocalypse can be avoided, even the very catastrophic disruptions of EMP or CME.   Hopefully, the more people know, the more likely it is we will do something about it. That gives a technological civilization better odds than the Amish or Luddites. I hate to see us blow it and wind up in a world that has no use for the likes of me. I don't think we could stop an extraterrestrial attack (like "Skyline" Nov. 12).

Saturday, November 06, 2010

MSNBC "firing" of Obermann for political contributions triggers debate on media and HR management "conflicts of interest" (as did NPR): effect on bloggers?

ABC News and now the Washington Post, in a Style, p C1 story Saturday November 6, report “MSNBC Suspends Keith Obermann: Network cites host’s contributions to three Democratic candidates”, by David Montgomery, link here.  This was an unpaid suspension (not technically a firing, although it got passed around that way.)

FEC rules limit the size of contributions to candidates, but media ethics rules limit the ability of journalists to make contributions. That sounds surprising to me if the journalist keeps the contributions confidential.

Independent bloggers may of course make political contributions, but as we know since around 2002 there has been a controversy over whether bloggers were making prohibited “indirect” contributions, a problem that the FEC settled favorably in 2006.

We’ve also covered the problem that media outlets often have blogging policies preventing employees (at least news anchors) from taking sides, even in their own writings, or from acting as “political activists”. For example, media policy might preclude an anchor’s from espousing the end of the military’s “don’t ask don’t tell” policy on gays, although some anchors have favored doing so without repercussions.

The recent ouster of Juan Williams by NPR provides another example of media conflict of interest rules. An interesting question might also be whether political but “bipartisan” or “non partisan” speech would trigger conflict of interest concerns at the same level. Former Minnesota governor Jesse Ventura (Independent) has advocated the end of political parties.

I’ve also covered the concern that this “conflict of interest” rule can extend to other areas, like those who have direct reports at work.

All of this collides with the idea that someone’s writings (even for political advocacy) are in a sense “property”. And now I make a big intellectual jump in “connecting the dots” and recall a question from the recent Righthaven cases (now at 169 and still counting): does a piece of intellectual property have to “make money” to claim constitutional protection as a property right? I think it does not. Think of the implications.  Maybe you have to defend your property against small intrusions to justify or set a convincing precedent for defending it against the big, existential threats later.

Update: Nov. 8:  Media outlets report that MSNBC has reinstated Obermann, and that Fox (which hired Juan Williams) does not have a "no activism" policy for its journalists. Is that what you expect of a "conservative" network?

Friday, November 05, 2010

Boucher's loss to GOP in election may make it harder to clamp down on Web privacy; But "do not track" proposal floats as part of "Best Practices Act"

Web publishers and entrepreneurs may have mixed feelings about the results of the midterm elections Tuesday. While Democrats may have been more supportive of network neutrality, the GOP may tend to take a Cato-like laissez-faire approach to web regulation, including stricter privacy requirements. The defeat of Virginia Democrat Rick Boucher may mean that a bill similar to his Boucher Bill would have a harder time getting traction in the 112th Congress. It created quite a stir at the Digital Media Conference in Tysons Corner, VA last June. Boucher lost to Morgan Griffith Tuesday (story in the Los Angeles Times by Richard Simon here.)

However, Rep. Bobby Rush (D-IL) wants to introduce a “Best Practices Act” in 2011, and include a “do not track” provision. It’s unclear how this would affect Internet advertising by “amateur” publishers as is done today.

Yesterday, on the International Issues blog, I wrote a story about plans in the European Union to legislate a “Right to Be Forgotten Online”, along the lines of online reputation concerns. Gabriele Steinhauser has another story at MSNBC here.

Thursday, November 04, 2010

RIAA super settlement illustrates copyright shakedown dangers; More info on who can become a "copyright agent" for DMCA safe harbor purposes

Ben Sheffner’s “Copyrights & Campaigns” blog reports a whopping judgment against Jammie Thomas-Rasset in Brainerd, MN, of $1.5 million in an RIAA KaZaA-downloading case. And she had refused to settle as she denied doing the downloading. The case, although in an older set of infringement cases (RIAA), illustrates the perils of the “shakedown” approach in copyright litigation. The link is here.

David Kravets has a “Threat Level” on “Wired”, “The $105 fix that could protect you from copyright troll lawsuits”, link here.

Kravets says that the requirement for becoming eligible to register as a copyright agent is to run a “blog or community site that accepts user content”. I was under the impression that you also had to run the Internet connection, like an ISP. I’m not sure if accepting monitored comments would qualify as “user content”. Maybe if you have a blog that lets others post (does it have to be open to anyone to register?) you can register even if you use shared hosting. I’m still checking into this.

Also, notice that Electronic Frontier Foundation has filed at least two countersuits in the Righthaven mess, for the Democratic Underground and now for the Thomas DiBiase case dealing with the “no body unsolved cases” blog.

Monday, November 01, 2010

So, life is not fair; but the "different" may experience "sacrifice" more

In debates about moral problems, most people will ultimately become concerned about the effect moral issues have on their own individual freedom and responsibilities, rather than on group or partisan views. These concerns become particularly sharp for those of us who are “different.”

The simplest view, then of modern moral values seems to be the libertarian one: an individual may, within a market system, do as he chooses as long as he or she accepts full personal responsibility for his actions. But, I guess, it isn’t so simple. The libertarian view does not take into account “inequality of opportunity” or hidden sacrifices; it allows non-performing adults (who may be so because of circumstances they cannot control) to drop dead on the floor.

At the other end is an authoritarian view, which makes rules that everyone must follow, on the theory that everyone must share some of the non-economic “sacrifice” and “risk” -- have their own skin at stake in the welfare of the family or group. The most extreme example of this kind of thinking could be exemplified by the 1960s “Cultural Revolution” in Mao’s Communist China, where everyone “took turns” becoming a peasant. A more familiar setting was the Vietnam era male-only military draft, with all the criticisms of unfair deferments. In fact, “sodomy laws” of the past could have been construed as an indirect attempt to make sure that every adult takes part in having children and raising the next generation. In more recent history, the extremely harsh rules of radical Islam (how they treat women and homosexuals) provide a similar example. One of the “attractions” of the “everybody pays his dues” (or "rules of engagement") view of authoritarian morality can be that some people find it easier to adhere to what their moral or religious teachings tell them to do if and only if they believe everyone else must do the same things. There is a tendency still to look at people as if they could be measured against moral and performance norms, inviting debate equality as a morally absolute necessity.

Between, and perhaps triangulated to these views, is the idea that everyone needs to have skills to enable them to “step up” to meeting the needs of family or community around them regardless of their own “choices”, and these may even relate to gender; but they should not be controlled by legislation. Instead, everyone should accept the idea that sometimes the family or community is more important than the narrow self and be prepared for the “step up.” In this sense, there can be no expectation that life will always be “fair” or “just” at an individual level, but there can be freedom, which makes it possible to approach justice gradually as a long term shared goal. That’s more commensurate with Christianity and ideas of Grace. In fact, both hyperindividualism and authoritarianism can become expressive of a certain kind of Calvinism, even Puritanism; I recall a question about this matter on my English final exam my junior year of high school!  The need to "step up" holds an emotional component (apart from evasie "upward affiliation"); in a technology-driven environment where attitudes become so public, what used to be seen as harmlessness or indifference may now come across as hostility or even contempt.

The idea of shared vision, introduced particularly by Rick Warren but also by others (Carlson and Mero and the “natural family”, for example) may indeed be essential for stable freedom, but of course “sharing communities” do need leadership, and leadership can easily become corrupt and self-serving. That’s one of the great things about individualism and the proliferation of individual goals (and associated speech) – they tend to interfere with group corruption.

People who are “different” (that often includes but is by no means limited to gays and lesbians, and those with less conventional social skills such as those with Asperger’s or “schizoid” personality (a term sounding much worse than it is) have good reason to fear calls for more attention to collective vision and social goals. Although “they” are often capable of achieving worthy goals and making unusual contributions when left alone, they are particularly prone to being singled out for “sacrifice’, although the retort is that if this is not done, people with “normal” family responsibilities will “sacrifice” instead.  Along with the "sacrifice" issue is the experience of subservience, which may be very great for the "different person" when external demands are imposed; "subservience" is not the same thing as psychological yielding (and "submission" is a double-edged term, too).   The "subservience" is experienced partly in terms of demands from family leadership that the different person develop patterns of familial affection dictated by others, making the person subordinate to the needs of the marital or reproductive relationships of other family members.  (Hence the notion of "second class citizen", however variable in the eye of the beholder, or even "family slave".) The coming eldercare “train wreck” may well bring this problem out. People who did not have children or take on intergenerational responsibility suddenly find themselves singled out and compelled to do so (although sometimes there can be unelected rewards, such as inheritance). One point of the "purpose-driven" or "natural family" movment seems to be that individual accomplishments are meaningless until one has earned the "right to the floor" by taking on family responsibility as one's first internal priority.