Saturday, December 31, 2011

Downstream liability" : legacy media "principles" weren't as consistent as we think

When do we base our public policy on "principle", and when on “need” or politics?

There are so many examples. For example, the idea that Social Security was something you (and your employers) provided yourself with FICA premiums has been eroded by political debates over means testing (need).  That’s the case, a bit less so, with unemployment benefit extensions.

But the biggest debate over principal may be in the debate over downstream liability exemption on the Internet – in both defamation and copyright areas (through different means).  Without limiting liability, user-generated content on the Web as we know it today wouldn’t be possible (because no business model for a provider could support it).

The underlying question posed is something like this.  Is your cable provider a “publisher” or more like a telephone company? Likewise, what about a shared-hosting Internet service provider? What about a “free publishing service” like YouTube, Blogger, or Wordpress?

The look at precedents in legacy media is not as encouraging as one would like.

Look at the book (and periodical) publishing world?  In the past, most books were published by “trade publishers” who shared liability.  Typically they required authors to indemnify them against liability. In more recent years, self-publishing and cooperative platforms (especially connected to print-on-demand) have become more common. Sometimes indemnification agreements are still required.  Books are distributed by “distribution companies” that are not so well known. Ingram is the largest. Mine was distributed by Bookmen in Minneapolis until it was acquired. Book distributors typically have little or no liability exposure and are like utilities.

In the world of movies, most films reach theaters and DVD stores through distributors, most of them well-known brand names connected to legacy studios.  Typically distribution is separate from production, which is also accomplished by a lot of production companies, some well-known and some very small and set up for specific films.  In the motion picture world, distributors and production companies share liability exposure, and complicated indemnification agreements are common. 

That doesn’t bode well in setting examples for the Internet, where downstream liability is limited by Section 230 (for defamation) and DMCA Safe Harbor (for copyright). Even so, ISP’s and service providers sometimes add indemnification clauses for users. These are almost never invoked in practice, but if SOPA were passed in its present form, that situation could certainly change.

The legal practice that limits liability exposure (to the phone company model) has come to be accepted and expected by users, even though they have been in effect by statute only since the late 1990s.  They are not necessarily guaranteed by long standing legal tradition or even the First Amendment.  They can become subject to political debate (as over “need” and “vulnerable people”) and become fodder for lobbyists and campaign contributions (as by legacy media in Hollywood who, as Patry points out, perceive a strong business incentive to keep their roles as gatekeepers of what gets made and gets distributed at all).

The matter becomes even more complicated when one considers that social media have promoted the idea of “whitelisted publishing” to known, concentric circles of “friends”.  In the past, “publication” (in movies and books) meant that everyone could see it, and the content creator had no right to know who would see it. As Patry points out, the DMCA can change that, and social media have upended the idea of making something public “for everyone” when done by amateur users – possibly because of public pressure.   (On the other hand, in libel law, “publication” means passing a statement to at least one person who understands it – which has been a real problem for Facebook users sundering the “online reputations” of others.)

Generally in the "real world" book publishing and movie and music distribution world, the content owner doesn't have the right to know or identify who accesses the content. There is some evidence that this changes on the Web, where it's possible to block certain users (by "htaccess") to prevent rogue comments or certain kinds of vandalism, by IP address identifiable on server logs.  In rare cases this has even been expected by service providers.  

It should be noted that some level of downstream liability (even on the web) is accepted by the Supreme Court, with the 2005 decision in MGM v. Grokster.  (I thought about this when seeing MGM’s resurgence as a production studio with the quick remake of “The Girl with the Dragon Tattoo”, reviewed today on my Movies blog.)  This would be the case when a business (which could be equivalent to a website or operation) is found in court to be dedicated to infringement, which is a concept also explored in SOPA and Protect-IP.

Like it or not, many of these debates are political in nature, depend on the public perceptions of their constituencies, and must be followed closely. The courts cannot protect “you” on everything.  And even the history of “principle” is more nuanced than people think.  2012 will be critical. 

Thursday, December 29, 2011

"Conservative" DC newspaper slams SOPA, saying Hollywood is looking for excuses for lack of creativity

The Washington Times has weighed in on SOPA with a relatively simple editorial, “Hands off the Internet: Online piracy is a scapegoat for Hollywood’s lack of ideas”, link here

The paper points out that many of Hollywood’s best box office results come from franchises and sequels and movies that reprocess old material. William Patry makes similar observations in the early pages of his new book “How to Fix Copyright”.  Patry discusses "creativity" in the sense suggested by the editorial here.  In fact, at a screenwriting seminar back in 2006, I was quite impressed with how the coaches tried to “commercialize” an idea that I pitched to give it “urgency” and stake, a transformation which would defeat the purpose of the film as I had envisioned it.  I’ve noticed on imdb a preoccupation with warning people about “spoilers”, as if the only reason people go to the movies is to learn the ending. Maybe that works for something like “Clue”.  Do you really care in advance what happens to the thimble in “Inception”?

It also points out that many laws exist already, and the laws against use of camcorders in theaters are enforced to “absurd extremes”.  I covered (on my movies blog, Aug. 3, 2007) a story of an arrest of a young woman for taping a few seconds of “Transformers”. 

It is true, however, that up to a point, movie studios and music companies have a reasonable expectation that they will be paid for re-use of their material in other commercial circumstances (such as excerpts in other commercial works or sometimes on websites).  Their original business models depend on this expectation.

Back on Oct. 12, 2005, the Washington Times had run an editorial “Suffocating the First Amendment” which, in the process of criticizing the litigation regarding bloggers and campaign finance reform (resolved since then), pointed out how Internet self-publishing really works and how it could be jeopardized by a litigious environment or by vague threats of imposing downstream liability on service providers.  The Times would do well to make that editorial available online again, or republish it. It certainly applies to SOPA.  (As I’ve pointed out before, it resulted  “indirectly” in an incident at a Fairfax County high school that I discuss here July 27, 2007.  What would follow was a sudden preoccupation in the media with “online reputation” in the workplace, most of all for teachers.)  The Times does appropriately criticize the prospect of government’s ability to shut down disliked websites (overseas or not – it’s already happening with ICE) “at the request of major campaign contributors”.  What did happen to campaign finance reform, the existential threat to bloggers a few years ago, after all?

The Washington Times also suggests that Congress is close to passing the bill before discussing mark-up;  hopefully, the delays (until March at least) and the mood in the Internet corporate community are going to make passage much more difficult than previously thought.  Like a big arctic cold front, the air will get modified on its journey south.  

Wednesday, December 28, 2011

CNN Money weighs in on SOPA's "unintended consequences"

Now CNN Money (in a story by Julianne Pepitone) weighs in with a detailed analysis of SOPA (ironically, tweeted yesterday by Webroot). CNN’s main objection is “unintended consequences”.  Particularly, a judge could order an entire site shut down because of the actions of only one user.
The general spin is that a vote in the House on SOPA cannot happen before March 2012, and that numerous amendments to narrow the bill are being taken seriously.

But support for the alternative “OPEN” bill is weak because of the supposed lack of real enforcement resources.

The link is here

I’m starting to read “How to Fix Copyright”, from Oxford University Press, by Google copyright counsel William Patry. He starts out by showing that copyright, in the past, was based on business models where a few media companies run the show and create “artificial scarcity”, deciding what gets made (in movies) or gets published (in books and music).  “Copyright” also made more sense in a day when owning “copies” of things “meant something” (like when I collected classical vinyl records and then CD’s).  Media companies may be more interested in eliminating low-cost competition than in protecting legally legitimate “rights” in a day of “plenty”.  Certainly, if SOPA could be construed as requiring service providers to prescreen all user-generated content (and I think it is a stretch to say that it does, even as an “unintended consequence”), user generated content would go away, and “newbies” would be forced to “compete” the old-fashioned way, or remain content with “real jobs” while “raising families”.  That idea certainly fits into the “reactionary mind”, regarding a book by Corey Robin that I just reviewed on my Books blog.  

There are even "rumors" that Hollywood wants royalties when snippets of film or music are backed up in "the cloud" (as by Carbonite, etc.)   This is getting silly. 

Monday, December 26, 2011

Small newspapers charge a lot for paywall; a note on my own pictures on blogs; even toys have to go to copyright school

Sme smaller newspapers are going "the extra mile" with their paywalls to raise revenue. At Shaw Newspapers,  a one year pass to read 1000 articles would cost $1995.   The latter sounds like the cost of a full body wax. One article is $2.95.  (The paper says its archive has no pictures or charts.) The corporate  link shows that the company has 13 small Midwestern newspaper.  By contrast, my own subscriptions to the WSJ and NYT are running about $100 and $180 a year, with Sunday print for the Times thrown in. 

I thought I would take this moment to mention that on blogs with movie reviews (sometimes TV and play reviews), I always identify the sources of any pictures if there is any chance visitors could think they were shot right off the movie screen (which is illegal and prohibited in almost any theater -- See Aug. 3, 2007 on my Movies blog) or DVD image at home. No, some pictures come from Wikipedia, most of which can be used with attribution (many are in p.d.) or were taken by me with my own camera. I identify the item photographed and when taken if necessary. In many cases, I have in-person images that are similar to those that could appear in the film.  These are mine.  I also have some estate photos from my parents (especially my father) from other parts of the country, often in BW, especially from the 1940s ( a few as early as the 1920s and a very few from grandparents in the 19th Century), and a number of movie reels, which I have made into DVD’s and can legally snapshot because ownership of this material is now mine by inheritance.  I certainly am prepared to discuss the use of any historical footage (there is some Arlington VA in the 1940s) with other film companies. 

First Picture: A music box gift for “Toys for Tots”.  I checked.  All the music is plays is public domain. Second: a typical "in person" photo, summer 2011.  Third: from the estate: my parents in 1940.

Saturday, December 24, 2011

Christmas: This Day. Also, a note: "I pay to play"

Christmas Eve, I watched again the last scenes of one of my favorite films, “Inception”, and recall a line where Cillian Murphy’s character says, “my father wanted me to be my own person”, and not just an extension of him or of the family.

It’s hard to become your own person without depending on the sacrifices of those who went before you, which you can’t always see. 

But it’s hard to give to others with any integrity until you’ve created your own persona, and have your own message, can execute your plans and deliver your message.  

Otherwise, volunteering is just going through the motions.

That’s the thought I’m left with this Christmas Eve. 

I also re-watched critical scenes in “Old Joy”, “Judas Kiss”, and “Black Swan”. They are among my recent favorites. (I did purchase DVD's for these.)
CNN is re-airing a 2006 film about the period “After Christ” and has been discussing Gnosticism.  And this evening I’ve looked at one of my most important screenplays.  A character like me wakes up in a bizarre interview, and begins to suspect he may have passed on, or be on another planet.  In time, various friends of his appear, but at their optimal young adult ages, as if they had become angels who could fix themselves in time (somehow defeating the physics of entropy).  The work of his own fiction is interleaved with his own history as he relives the most critical episodes of his life and must face what he was up to, what made him tick.   He finally undergoes the rite of passage (“tribunal”) that he has always craved (where he tests his own ability to transform himself through time), and then the realizes he has one more critical mission back on Earth, as a “living soul”. Will my script hold together.  Can it become another favorite film?  I do want to call this film "Do Ask Do Tell".

The CNN film concludes by (with Liam Neeson) asking the question "Why Jesus?"  There is irony that the Roman Empire actually caused Christianity to spread as a worldwide religion.  But, the film says, we must return to the Beginning. 
Welcome to Christmas Day, Hodie (Ralph Vaughn Williams).   

A closing thought, regarding the recent battle of intellectual property that I have been documenting: Here is Wolfe Video's "Pay to Play" YouTube video, starting out with a star from "Judas Kiss".

The Wolfe Video "I Pay to Play" link is here. Again, have a wonderful Christmas.  P.S.: "Just win it!". 

Friday, December 23, 2011

GoDaddy, under boycott, drops support of SOPA; but why had this major ISP supported it at all? What about TOS indemnification clauses?

I was a little surprised today by an EFF tweet that GoDaddy no longer supports SOPA. What surprised me was that a major ISP – any ISP -- like GoDaddy has supported it at all. Tech Crunch has brief story (website url link) on GoDaddy’s abrupt change in position.
Timothy B. Lee had written an article for Ars Technica on a boycott by many of GoDaddy’s customers, who were moving over to other ISP’s, link here.

GoDaddy had submitted a brief supporting the bill (link). It would be instructive to compare its arguments to those made by Google

While GoDaddy’s argument, admittedly a bit stern (it brags about the pre-emptive monitoring it does, which is unusual for ISP’s, which typically say they don’t monitor until illegal activities are brought their attention), may sound somewhat persuasive to some, it’s clear that SOPA could leave “ordinary” webmasters open to trollers and frivolous claims, and could leave ISP’s open to unpredictable claims of downstream liability. A lot of this is the “school detention problem”. It’s a little surprising that GoDaddy isn’t more concerned about this.

One issue that gets overlooked is that some ISP's, as part of their TOS agreements, claim that users or customers must indemnify them against any losses from potential downstream liability. I don't know how common these are today or whether GoDaddy has such a clause in its AUP's (sounds likely).  They are similar to clauses in the book publishing business that authors indemnify publishers against losses (even if they're not commonly invoked).  But possibly ISP's could look to these as a way to shield themselves from SOPA-related liabilitis.

Wednesday, December 21, 2011

House Judiciary Committee says it postponed markup again; both Heritage and CATO write criticisms of COPA

The conservative Heritage Foundation has a well-stated and rather temperate argument (by James Gatusso) about the possible unintended consequences of SOPA, as laid out at this link

The heart of Heritage’s arguments deal with interference with the domain name resolution system, and probably hindering a newer security system for resolving Internet addresses, DNNSEC. The need for this arose out of a crisis that became apparent during the summer of 2008, resulting in an emergency industry summit at Microsoft (see my “Personal Identity Security” blog Aug. 9, 2008).

The Heritage Foundation urges consideration of Sen. Wyden’s proposal involving the International Trade Commission’s enforcement authority, even though conservative think tanks typically oppose depending on international bodies. 

Julian Sanchez has a recent critical article at the Cato Institute site, “SOPA: an Architecture for Censorship”, link here.  One of his main arguments is that it is easy for government to build onto SOPA for all other kinds of offenses (such as those related to Wikileaks).  He also says that almost any ISP or search engine will have to implement a step in its process preventing resolution to anything on a blacklist of banned sites.

The House Judiciary Committee reports this evening that the markup rescheduled for today has been postponed again (look here)

Tuesday, December 20, 2011

Supreme Court looks at reversing cross-ownership bans on newspapers and broadcasters, helping newspapers "compete"

On Monday, Dec. 19, L. Gordon Crovitz offered a perspective on litigation filed by Media General in Richmond VA asking the Supreme Court to overturn outmoded rules forbidding cross ownership between newspapers and broadcasters.  The link for the p. A17 story (paywall) is here

The Internet has obviously turned the tables on the ability of powerful newspapers to dominate the local media a half century ago, and the 1996 Telecommunications Act would seem to allow the FCC to loosen the rules (just as it has other provisions like Section 230).  But the FCC has been unwilling to use its prerogative. 

This story is another piece in the story of newspapers fighting their decline, which we know led some small papers to fall for copyright trolls. 

Sunday, December 18, 2011

SOPA would muddy the waters for the future of both social media and web self-publishing

Once again, I offer a perspective on how SOPA, at least in the worst case scenarios, could affect what I do – and take anticipate and take on some existential questions.  This is always hard to do in a blog posting – it’s an ongoing discussion. 

One important thing my blogs accomplish is keeping certain critical issues in front of policy makers.  I don’t go away, so they have to be addressed.  I do think that my being “out there” on the Web for 14 years with no supervision and hammering away the way I did was a factor in getting “don’t ask don’t tell” repealed. This might not have been achieved without underlings like me “keeping ‘em honest.” I don’t go away.  A more recent example might be Newt Gingrich’s discussion of the EMP issue in the context of the GOP debates.  It’s not well known, but it’s something policymakers need to pay attention to.  It could be bloggers like me keep them talking about it. 

And we’ve said that it is, by and large, the insulation of service providers from downstream liability that makes it possible for people like me to do what I do.  And the anesthesia, however, also makes it harder to stop other abuses on the web, ranging from cyberbullying to piracy. There is indeed a “balance”. 

In recent years, I’ve been approached repeatedly to join other people’s causes and hucksterize for them, and give up my own independence.  For me that is anathema. 

I’m also, since I have made myself a minor public figure, found myself having to answer, why don’t I enjoy more direct involvement “helping other people” with direct personal involvement.  I’ve said that part of the reason has to do with the humiliation of conventional social combat (related eventually to family continuation and conventional gender roles) and the lack of my own “ownership stake” in social relations in a way I can feel proud of.  A lot of it has to do with “upward affiliation”. 
Major media organizations make much more of volunteer opportunities today than they did a number of years ago.  The recent programs last week on CNN and NBC with service awards for selected charities demonstrate this point.  There is somewhat of a “sea change” in the idea of service.  It used to be that a lot of us were lost in our own worlds – and overwhelmed with the demands for overtime at work and issues with family – and paid less attention to needs outside our own lives.  And when we heard about “need”, we could rationalize it away.  After all, it seemed (at least domestically), a lot of people in “need” had made “wrong choices” like trying to get something for nothing (subprime mortgages) or having kids before they were ready to.  It is not as credible to say or believe that today as it had been some years ago.  The rhetoric about “personal responsibility” can mask a general contempt for people merely less fortunate and genuinely expecting a community that they live in to respond to them. 
 What I see is somewhat of a pendulum swing, back from the extremes of amateurism in public self-expression, and more emphasis on service, meeting real needs – and also more emphasis on a structure that controls what needs get expressed publicly. 
The attempts in Congress to mollify the media companies (and their lobbyists) over piracy concerns, can easily mutate into a plan to eliminate “amateurish” competition and re-establish a hierarchy that can control what gets out into the public space.  This can even spill over into the charity areas, where the media companies can display those efforts or organizations which they say are accomplishing the most, and then challenge “people like me” with, “why do you need your own voice any more. We have identified so many needs you could fill.”
The end result of all of the calibration of downstream liability issues on the Internet could be that we wind up with fewer vital companies that offer much less in the way of free expression than in the past, and provide much more structured ways in which people have to “compete” for space.  People could be expected to integrate themselves socially and establish networks based on more limited activity before they are “listened to”, by the way “friends’ circles” work out.  Would this be harder specifically on less savvy older people? Maybe no.  People with fewer "friends" reachable this way might be viewed as having suspect motives or purposes (as to what makes them "tick"). We’re already seeing examples where employers look at candidates to see how well they can attract desirable followings in social media by specific kinds of social "performance" (although this is obviously easier for people who can establish themselves publicly in the arts in the old fashioned way).  Someone like me could be asked, “why do you need your own book or movie review page when Amazon/imdb already offer a controlled framework”?  Owned sites (or individual blogs) could be held to standards of generating earnings (like real companies) or other metrics of website performance (like bounce rate).
That hasn’t happened because right now the ad-driven business models work when there is little downstream liability concern, or when there are reasonably reliable and straightforward ways (DMCA safe harbor on limited content items) to control it. But this could all be changed relatively quickly. 
This is not the environment I want to face.

Friday, December 16, 2011

EFF spends a week of "Action Against SOPA"; Mark-up resumes Dec. 21

Electronic Frontier Foundation has a detailed account of “Wrapping Up a Week of Action Against SOPA”, by Parker Higgins, link here.  In a tweet today, EFF said that the mark-up process will resume Wed. Dec. 21. 

It’s quite disturbing that the Judiciary Committee was willing to try to railroad the bill the rough, and that the “media establishment” and its lobbying element is willing to push through a bill it knows is badly flawed, could not just bully off some of the smaller competition but could also hurt its own business (by hurting its customers)  in the long run.  It’s interesting that at the same time, elements of the film establishment, as I noted yesterday, are pushing for liberalization of certain elements of the DMCA, which could be wiped away by SOPA anyway. 

There is another site, called “Stop American Censorship”, dedicated to fight SOPA and its likenesses, link here

The video above doesn’t quite correctly differentiate between the House and Senate (PIPA) bills, but that’s of little consequence. 

In mid November, Nate Anderson had published an analysis of SOPA on Ars Technica, maintaining that the law would let private interests (“market based”) shut down websites without legal intervention, link here.    That characterization may not be completely true. But it is certainly true that established media owners could troll and go against amateurs without deep pockets on made-up grounds not really caused by piracy; look at what happened with Righthaven. 
The circus continues.  Stay tuned.

Thursday, December 15, 2011

SOPA mark-up held up by snarky tweet; Documentary film group ponders both sides of Fair Use question, seeks DMCA "big rip" exceptions

The expected mark-up of SOPA did not happen today in the House Judiciary committee because of the distraction of a snarky tweet. Here’s the CBS story by Declan McCullagh . (Here’s the link to the tweet ). In the end, there weren’t any amendments offered t narrow the language either, so the tweet might have distracted progress in making a bill like this (which Google says it actually wants) workable and not a threat to “average bloggers” on the web.

In any case, there’s no encouraging evidence yet that the House Judiciary Committee is interested in the moderate alternative, the so called “Open Act” yet.

Declan McCullagh had an FAQ Nov. 21 which highlighted the difference between SOPA and Protect-IP: the older Senate PIP version (whatever its “great expectations”) doesn’t deal with companies that actually provide connectivity. Here was his page (“How SOPA would affect you?).

Today, at the West End Theater in Washington DC, I picked up what looked like a promotional copy of “” winter issue (was I supposed to pay for it? – I didn’t see a price on it until I got home). On page 12, there is an article by Cynthia Close, “Creators vs. Consumers: Reclaiming the Conversation about Copyright”. It’s a review of the book by Patricia Auferheide and Peter Jaszi, “Reclaiming Fair Use: How to Put Balance Back in Copyright”. (See my Book Reviews blog, Aug. 25, 2011; just follow the links on Blogger Profile.) Close is executive director of Documentary Educational Resources and her review doesn’t seem to be available online yet, so I have to base these comments from the print version. (That’s OK.) She characterizes herself as a “gatekeeper” responsible for the ability of her clients to monetize their work. So she says, “I confess some ambivalence at giving Fair Use a platform in this review” and says later “I am loath to promote the idea that it is okay ‘to use copyrighted material without permission or payment. ‘ Indeed, it’s not; you can’t simply apply Fair Use every time you want to use a clip. You need an attorney to scrutinize the usage and advise you yes and no" (emphasis mine).

A little context is in order here. It’s true that commercially released films are fastidious in giving credits and getting licenses for even the most incidental clips from other films (as you see in rolling credits at the ends of movies) and for any music. It might be Fair Use not to do so sometimes, but commercial distributors probably won’t buy films that don’t honor this expectation and major festivals probably won’t air them. (I have seen films that violated this rule in smaller festivals.) Books are a different matter. There are companies that secure permissions for authors, but really my experience is that it is OK to do brief quotes without permission. Blogs – we’ve seen this fought out with Righthaven. But generally the courts are coming around to the idea that even full (if relatively short) news articles may often be reproduced in informal blogs and forums under Fair Use.

It’s true that indie filmmakers with investor money are normally expected to purchase script clearances and rights through the usual industry machinations. But if bloggers or YouTube video producers had to do this, it would shut down UGC (“user generated content”) on the Web as we’ve gotten to know if in the past 15 years. And imagine what would happen if service providers were held responsible for making sure that web publishers did so.
Even more potentially sinister is suggesting that filmmakers or content generators have to pay their tribute to lawyers first. If this were common practice for the Web as a whole, again, UGC would disappear. So what we have here could grow to an attack on amateurism.
Close finally concludes “While the promulgation of the concept of Fair Use over the past several years has helped made the production of, say, history and essay documentaries much more cost-effective, it’s a two-way street. The gatekeepers lose potential licensing revenue—and so, eventually, do filmmakers.”
There’s something disingenuous here: if something is legal (that is, application of Fair Use), should we be end-rounding it so that established interests retain control of what makes revenue – and in the future of what gets published or gets filmed? Shutting out Fair Use would be shutting out low-cost competition.
In fairness to (and with a bit of irony), I note that the group has been fighting for a loosening of the DMCA provisions to allow documentary filmmakers more leeway in “ripping” DVD’s (now BluRay) and other media for getting clips upon which they can make critical comments in their documentary films (in a manner similar to how bloggers comment on news quotes – an issue even in the Righthaven cases). Here is a typical link on their efforts.

Tuesday, December 13, 2011

New site tracks P2P downloads by IP address, anyone can check from his home computer ("What you have downloaded")

There exists now a website that can tell you what you have downloaded from P2P environments.
Brian Krebs, formerly the Internet security writer for the Washington Post, has a story on 'Who knows “”?', link here

I declined to give the direct link because of a red warning from MyWOT, report here

The site picks up your IP address (although it can have trouble with dynamic IP’s) and tells you what has been downloaded (possibly illegally) from the address.  Imagine how this can fall into the hands of the copyright trolls. 

The site seems like a proof-of-concept, designed possibly by Russian-born Americans such as Suren Ter-Saakov.

One founder reported getting a message asking database records to be removed out of fear his parents would see it!

Monday, December 12, 2011

Federal judge in Oregon rules that "bloggers" are not (necessarily) "journalists"; NY Times hosts debate

The New York Times has a debate forum today “Are All Bloggers Journalists?”, with main link here (paywall subscription required, and your browser has to allow scripts). 

The discussion centers on a recent ruling in which a Montana blogger, Crystal Cox, was told that she could not claim protections offered to journalists under Oregon state shield laws, because she was not affiliated with a component of the established media (“newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system”). 

For Crystal this is serious because she if fighting a defamation lawsuit after comments she made about the founder of a particular investment group.   Complicating her case was her unwillingness to disclose the source of information behind comments she made, invoking the possibility of using the shield law. 

Jeff Barnard has an original Associated Press story (Dec. 7, 2011) about her case, here

Another blogger (Philip DeFranco) comments on the case, and mentions the insurance issue toward the end. 

The New York Times debaters include Kelli Sager, Stuart Benjamin, Kyu HoYuom, and Ellyn Angelotti.  There is some consensus that the availability of shield laws ought to be based on circumstances with various tests, such as the degree of professionalism with which the blogger does the work. 

Angelotti has a major commentary at the Poynter Institute site (connected to the Media Bloggers Association, at least in the past), "Debate about Crystal Cox blogging case misses a key legal point", here.  She points out why even with the Shield, the blogger might be liable for defamation.

It's important to remember that the Cox case is about her own liability, not about downstream liability and Section 230, as I have discussed it before.  But imagine the environment we would have if her hosting provider could be held liable.  On the other hand, in a traditional news organization, the entire organization could be held liable sometimes, but the reporter might be shielded. 

In my own "practice", I have not expected absolute shield.  On a few occasions, I have contacted law enforcement about disturbing materials made available to me, and not published them. 
Scribd has a copy of the opinion (PDF) here.

Sunday, December 11, 2011

Arkansas capital case raises more questions about juror mobile phone, Internet access and use

The Arkansas state Supreme Court has overturned a death penalty for a man because a juror made innocuous tweets from the jury box and later the deliberation room during the trial.   The court also said it was time to consider juror mobile phone use during the trial.  A Times Record story is here.  Newsoxy has a story by Susan Harris here.

The jurors had been told properly not to post on the Internet material about the trial.  These postings were about conditions and bad coffee, not about the case. 

Nevertheless, the case raises serious questions. Would a mobile phone and Internet ban apply after the person goes home?  It certainly would apply in the case of jury sequestration.  But what about other cases?  A death penalty case is grave enough to warrant more restrictions on jurors, it seems. 

When I lived in Texas, I was called for jury duty four times, since they have a one-day, one-trial system. I actually was on one jury that lasted three days, and on another (where there was actually a “boorish” incident, as I mentioned yesterday), the case was settled before the jury met. 

I haven’t gotten summoned in any other location: New York, New Jersey, Minnesota, or Virginia.  I haven’t gotten invited to a federal jury or grand jury either. 

The danger for me would be a complete Internet takedown for months; the blogs might not survive a long forced hiatus. But a long trial federal trial on a critical corruption or 9-11 case could happen. 

Jury duty, while an unchosen obligation, can involve more "sacrifice" than people realize.  

Saturday, December 10, 2011

The high road and low road come back together

I just wanted to provide another “level” to the roadmap of the video I plan to make, “Do Ask Do Tell”.

At certain times in my life, particularly during my coming of age (pre-teen through college years) and then recently (with my eldercare experience), others have demanded that I “pay my dues” through engagement in activities well outside of the scope at what I was good at, and then have “questioned” my intentions in building my personal relationships.  This incorporates the “gay” angle but also a lot more. 

I think I have a right to ask, “what did ‘they’ want?”  And I think that yesterday’s post – about demanding (with some "moral rationalizations") subordination to the meeting the needs of others in a social group led by others , offers important clues.  I did order the book (Corey Robin) and will be reviewing it in due course. 

But there are still two pressing, complementary but separate questions.  One: what moral code should guide the lives of those of us who are different – in terms of honoring pre-defined obligations to others, through family (those not mediated much by the economy and not defined by choice, such as “choosing” to have children, which of course begets responsibility)?  The other is, if we have a handle on “what other people want”, how valid is “what they want” in moral terms – let’s say, in its impact on our ability to sustain our civilization?   Call all this "social contract".  And, to be candid, there are those who say that “society” will have to play more attention again to honoring common goals and social structures (even for those who don’t “choose” to extend them) if it is to sustain itself.  And we feel apprehensive about where that could take us. 

Most of us – especially those who are “different” – remember occasions from our lives where we have been “called in” and ambushed by something that had been going on behind our backs.  I’ve had my share of that.  In many of these incidents (William and Mary, for example), I can easily point to “failures” of others and deceptiveness or dishonesty on their parts.  But there is certainly a list of incidents, not all of them leading to immediate consequences, where my own behavior was certainly boorish (or rude).  And there were a few workplace incidents (a few in the 70s and one in the early 90s) where lack of maturity showed: I was not paying attention to directions or to what was changing around me, and as a result was careless in the way I handled or implemented something, or set up its support.  No actual disasters every happened, but they could have, and I had to deal with the distraction of vigilance and anxiety which held me back, perhaps. We’ll never know (without traveling to an alternate universe) what might have been, but I think these problems contributed to my being unable to continue my “conventional” I.T. career after the “Big Layoff” ten years ago this month, and they may have made the interpersonal issues of the past few years more sensitive (that is, helped bring them on).  They call it “karma”. 

In more recent years, I’ve had to pay more attention to the possibility of having to deal with harm or loss caused by others, rather than myself.   This takes on moral dimensions in a couple of ways.  “Loss is still loss” (a tautology) result of fault.  But we also live in a community where there are really unsettling questions about the legitimacy of the way many of us acquire and horde some wealth and insulate ourselves from the experiences of others (or from empathy).  Regardless of the suspect nature of the demand from those in power that individuals limit their own public “agency” (last post), there is still a deeper question about whether we can simply remain at “arms length” from some people forever.    

Friday, December 09, 2011

Corey Robin's view of the Reactionary Mind stimulates debate even in the IP area

Today, AlterNet offered an email with a link to an excerpt from a book by Corey Robin, “The Reactionary Mind: Conservatism from Edmund Burke to Sarah Palin” (2011, Oxford University Press), with an HTML title caption “Understanding the conservative mind; why reactionaries from Edmund Burke to Sarah Palin have fought real liberty”.  When I checked this afternoon, the content had disappeared; only the ads were left, and comments. I don’t know if this was a copyright problem or what.  But I can comment on what I remember from reading through the excerpt 

The excerpt mentioned the conventional wisdom that conservatives want liberty and liberals want equality.  Both are rather meaningless in the total abstract.  But then it mentioned the idea of “agency”.  The reactionary mind does not want someone socially or politically subordinate to become his or her own moral agent (I had suggested the opposite early in the Introduction of m first “Do Ask Do Tell” book (1997)

In fact, I’ll quote my own paragraph here (and, hey, I don't even need to claim "Fair Use"):

“My central question on personal values is this: do we believe in the principle that every adult person is totally responsible for himself or herself? This objectivistic notion would limit the responsibilities of government to consequentialism. Individuals, through their own conduct and performance, would become their own moral agents. An individual will, in principle, be held accountable for her actions regardless of biological or circumstantial parentage. When may an individual rightfully set her own personal priorities, and when should she consider the recognized and established interests of family and larger community first?

To the reactionary, an established social order and hierarchy is important to sustaining a civilization and culture.  He or she imagines that those farther down in the food chain owe their lives and protection to those at the top, and do not have a right to speak up and be heard until they can take the responsibilities of those on top. 

In a world of pure meritocracy, those who are most capable would both wield power over and have responsibility for those who had accomplished less or who could take less responsibility for others.  Getting married and having successful children would be a major power and responsibility (both) for those with station in life.   In our culture, meritocracy tends to be measured by money; but in animal societies (or maybe with people on other planets), it may not be. 

But, of course, as the Left correctly points out, people don’t start out in the same place in line (or with the equalizing place on the jogging track according to lane).  But the Right sometimes counters with the idea that everyone “pays his dues” (by proving he or she is good enough at basic things related to gender roles  -- for men, going through group rites of passage and often the risks of military service). Furthermore, the Right promotes the idea that strict sexual morality (no experience of sexuality outside of marriage and without the openness to procreation, a Vatican idea) would limit the tendency of those in power to abuse it. In practice, history shows things never work out this way.

So the Left tends to propose political and social structures “for the People”, but pretty soon the Left builds its own power structure that (eventually) becomes as oppressive as anything on the Right.  That is, Stalin (and Chairman Mao, and  Pol Pot) were as bad as Hitler.  Totalitarian structures, whether from the far Right or far Left, always try to bind and indenture the individual who doesn’t win the battle for the top (or may not be lucky enough to even compete for it).   Sometimes the Far Left makes a quick switch to the Far Right (look at China – “The People’s Republic of Capitalism” -- and Russia).  Hence, progressive democracy and “classical liberalism” gets pulled toward libertarianism.  There is still a lingering risk that the individual, left to his own expressive aims and perhaps without a good ability to bond to other people, could develop purposes, in fantasy, that defeat the purposes of liberty. 

In my own case, I was born into economic circumstances that were certainly favorable enough, but I could not “compete” properly according to my biological gender (male) to perform property (protect women and children).  Hence, I came to find most of the conventional social mores and indulgences expected of me (regardless of any choices I had made, note) to involve subservience and potential humiliation.  Conventional dating and even heterosexual overture became, in my mind, a proxy for submission (Warren Farrell’s argument in his 1993 book “The Myth of Male Power”).  On the other hand, physical submission to a male whom I really admired became desired – and this gets into the “polarities” (Rosenfels) that I have talked about before. 

None of this should be lost on the debate going on today about the “open Internet” and the problems with controlling piracy and abuses of reputation, because of downstream liability immunity, as covered in recent posts here.  In the mind of the Reactionary, someone like me doesn’t have the “privilege of being listened to” himself because he couldn’t take on (through successful competition) enough responsibility for others.  So, it’s easy to think that protecting jobs for those with “families” with any means necessary must be the only goal (and this involves a “reactionary” attitude from the Left as well as the Right).  Keep all this in mind in tracking “SOPA and Protect/IP” v. “Keep the Web Open”.