Tuesday, November 29, 2011

Questions continue about the "punish all" provisions of SOPA

The Wall Street Journal joined the fray of “sky is falling” commentary against SOPA, this one late Nov. 28 by L. Gordon Crovitz, “Horror Show: Hollywood v. Silicon Valley:  To protect copyright, movie industry favors legislation that would strangle the Internet (link) (WSJ subscription required).   Crovitz writes bluntly that SOPA aims to “make websites responsible for anything posted on them or potentially posted on them by third parties” and that “a violation could be a single link on a single page”. 

Today, EFF was warning visitors that the Senate’s Protect-IP was back, and could actually pass before SOPA, which is due for markup debate Dec. 15. 

The New York Times tried to strike a balance Saturday (link given at the end of my posting Nov. 25) by saying that the law should be narrowed to apply only to foreign sites, abide by DMCA safe harbor, and require court supervision, always.  Good ideas, but then why does Congress and Hollywood need a different law?

It’s, as a famous copyrighted song from “The King and I” reads, a puzzlement.  Why does Hollywood need the right to have whole sites disconnected for the sins of the few?  Why isn’t the DMCA provision sufficient for them?

You could probably ask a similar question of Righthaven.  This seems more like social combat, and protecting business models from low-cost competition, than a redress to genuine infringement. 

One could provide, in the law, some way in the (5 day) counter-notification process to allow “accused” to show that their sites are not predicated on promoting infringement. This could sound like the soft provisions of Fair Use. For example, a content site would seem to be safer if most or a lot of the content was original with owners of the site. An e-commerce site would be safer if most items sold had not led to complaints.  But if the DMCA Safe Harbor is properly honored, is all of this necessary?  It sounds pleonastic, like the French “ne”.
Dominic Basulto has a curious blog entry in the Washington Post Nov. 19, “SOPA’s ugly message to the world about American and Internet innovation” here. He says Hollywood is mixing controlling piracy with censorship.

The one abuse that I see where DMCA is not too effective is the situation where “rogue” sites are set up based on misspellings of popular sites to phish, distribute malware (or mainly to park ads). Legally, these would be covered by trademark law now.  These concerns are distant from those in Hollywood about piracy.

Mike Ludwig has a Truthout article "The SOPA Scoop: Anti-Piracy Bills Enrage Web Freedom Groups, Divide Congress," link.

Monday, November 28, 2011

Today marks 50th Anniversary of my William and Mary expulsion

I covered the details on a post on Tuesday, Nov. 28, 2006, but today, Nov. 28, 2011, marks the fiftieth anniversary (back to Nov. 28, 1961) of my expulsion from the College of William and Mary as a freshman, after “admitting” to the Dean of Men (Carson Barnes at the time; Lambert was Dean of Students and Pascal was president) on the day after Thanksgiving, after a sudden summons by handwritten note on my dorm door, that I regarded myself as a “latent homosexual”  -- after an interview that had started with leading questions by him.

The actual expulsion (where my parents were told separately first while I was actually in class) and my physical removal occurred “today”, which was a Tuesday that year, the first really cold day of the late fall.  Today, in both Washington and Williamsburg on the “golden anniversary”, it’s unseasonably warm, inviting Halloween-style thunderstorms later.

In late October of this year, I made a visit to William and Mary to join GALA for its silver (25th) anniversary, with postings at that time.'

What’s remarkable to me now is how I was able to tell the story, without third party approval, in both book form and on the Web because the legal environment has until now protected Internet service providers from downstream liability (for the most part). That capability could be in jeopardy because of SOPA. 

Sunday, November 27, 2011

New York Times prints forum on anonymity on the Web today; Facebook v. Salman Rushdie

Recently, the New York Times (Nov. 14), in a story by Simoni Sengupta, reported on a scoff by formerly targeted author Salman Rushdie with Facebook for not using his legal real name (Ahmed) on Facebook.
Today, Nov. 27, in page 2 of the Sunday Review, the New York Times sponsored a reader’s dialogue (many LTE’s), “Anonymity and Incivility on the Internet”, link here (that page in turn links to Simoni’s story  “Naming Names: Rushdie wins Facebook fight” aka “Rushdie runs afoul of Web’s real-name police”).

In practice, anonymity (fiercely defended by the ACLU and EFF) cuts both ways. It can be a shield for the vulnerable, and it can be a sword for bullies.  But, as Simoni pointed out (and I did yesterday), Facebook could have valid business reasons for insisting on real names: it wants to become a defacto standard for business identification, which could help overseas.  But it also seems to take Facebook out of instigating any more middle Eastern revolts. (Maybe there aren’t more left anyway.)

I thought that Facebook had a place to enter nicknames in the Profile, but I couldn’t find it this morning. (The profile controls have really changed a lot recently.) I added a comment explaining that my nickname “Bill” is based on my middle name “William” in “John William Boushka” and I always sign my name as “John W. Boushka”, which is my Facebook ID.  In practice, I regard my nickname (“Bill Boushka”, used for my books) and legal name as interchangeable and equivalent. 

As Simoni noted, Google+ is experimenting more with allowing pseudonyms (the “Mark Twain” or “George Elliot” problems we learn about in high school English – and how about Shakespeare himself, according to Roland Emmerich?), and Twitter is all laissez-faire (yesterday).

The New York Times forum today is sponsored by Christopher Wolf, who comes down favoring the use of real names, but says he is not precluding a place for anonymity on the Web (but it seems that he is doing so to me). 

It may be worth noting that as SOPA (the controversial Stop Online Piracy Act) evolves, it could be that use of real names could come to be perceived as a way to show that one’s site is “legitimate” and not intended for infringement, after a possibly bogus claim against a site or misbehavior by just one user. 

As for me, I have used “Bill Boushka” (and somewhat interchangeably the legal “John W Boushka” – both work in Google and Bing) for years, ever since I wrote my first book (1997).  I was involved in documenting the history of gays in the military (“don’t ask don’t tell”) which bears an obvious relationship to the Internet anonymity issue, as well as to Internet speech itself (I was a COPA litigant).  If I did not use my real name (at some risk, maybe even to family), my self-stated and self-published speech would have no effect.  If I had not done so for fifteen years, I wonder if we would have won repeal of “Don’t Ask Don’t Tell” earlier this year.  The effectiveness of just one person who makes himself public, stays out there and doesn’t go away for years, should not be overlooked.

Update: Dec 6

EFF has noted this debate, and pointed out that USA Today is requiring a Facebook account and login (because it is identified with a real name) for comments (link).  Will other sites follow suit?

Saturday, November 26, 2011

Another case of a teacher suspended for web activity; more on using true identity on the Web (Twittergate)

Here’s another story about online reputation and teachers.  A special education teacher in California, Heidi Kaeslin, was suspended without pay after creating a porn site called “My Slutty Teacher”, which was up only for a day.  Nevertheless, her ex complained to the school system.  The case may be simplified by the fact that she used a school laptop in creating the site; the case would be more interesting had absolutely everything been done on her own dime.

Yahoo! went to the trouble to offer this commentary, which does not help the teacher’s case. 

CNN reported the story Saturday but does not seem to have the story online yet.  CNN also discussed a twitter account of someone impersonating Rahm Emanuel, with a news story here It appears that this is perfectly legal now (it could be called parody). Remember, though, that Facebook and Google+ have been insisting that members use their real names (Google+ may be shifting on this, however). 

 Facebook may well believe (quite reasonably) that if it enforces the policy of true identity worldwide, it is more likely that China may one day accept the site, on favorable temrs. There was a story in July in Forbes that China might accept Facebook in its country if it is allowed to buy part of the company, link here In fact, check this Wikipedia article on what China bans – almost everything. On my doaskdotell site, I get traffic from Middle Eastern countries (including Saudi Arabia) but very little from China.

Friday, November 25, 2011

SOPA and the "Middle School Detention Problem": Congress should learn a lesson from Righthaven

Remember in middle school when the teacher would give everybody detention because one or two people were talking out of turn?  The teacher would even prod the class on learning to watch out for one another.  In fact, I found that out as a sub: one kid could ruin an entire class and get me banned from the school.  That potential analogy forms the heart of what is so unsettling to the Website- authorship-and-hosting community about SOPA in the House (and to some extent, the similar Protect-IP in the Senate). 

Visitors are urged to read carefully the written comments by Google’s General Counsel on Copyright, Katherine Oyama, before the Judiciary Committee Nov. 16, here

Here’s the heart of what she says from my perspective.  Any website or service (publishing  or video platform, or shared hosting, or e-commerce site) can be exposed to being “tackled” upon a complaint from just one copyright (or perhaps trademark) owner.  The actions that could occur include domain name(s) revocation, suspension of payments from credit card companies or other processors,  disconnection from advertisers, removal from search engine results, or outright termination of service (as with a typical TOS violation).  A complainant can get a court or government agency to use whatever means is necessary to render the site inoperable if just one element (or user) of the site invokes a complaint, regardless of the rest of the site.  The multiplicity of potential remedies seems to stem from a belief that various methods may be needed to fight rogue overseas sites, but as the bill is written they could apply to domestic sites too. 

That would seem to mean that a site needs (as a practical matter, even if not legally directed) to preview the activities of its customers, to reduce the risk that one customer could get it taken down.  This sounds like a warped application of the Biblical idea of being “your brother’s keeper”.  In theory, this could sound as though YouTube might believe it would have to review every video before being put up, because one infringing video could get it all taken down. This existential “threat” may seem very unlikely in practice, and of course it would be impossible for YouTube to do this.  But YouTube’s management has to make a conscious policy decision about what “risk” it can take with its shareholder’s money.  (In a publicly traded, fiduciary environment, it’s legally obligated to do so.) (Oyama, at one point, suggests that YouTube might not have come into existence had SOPA, as drafted now, been in effect in 2004; perhaps the same could be said about Blogger and Wordpress earlier.)

There are a couple other wrinkles.  One is the end-around of the DMCA Safe Harbor, or Digital Millennium Copyright Act provisions that allow service providers to preclude downstream liability if they honor takedown notices.  As Google points out, having complied with the DMCA procedures would not necessarily “save” a site brought down by SOPA.  It’s true that SOPA does have a counter-notice procedure (similar to DMCA) and requires some review by a court or government when an order is contested.  But now this would be necessary to save the entire site, not just one posting. 

It should be noted that even now the DMCA Safe Harbor does not necessarily protect an individual web self-publisher from litigation. We know that from the summary lawsuits filed against bloggers in the past two years by copyright troll Righthaven.  No, Safe Harbor protects “providers”, or those who publish materials submitted by others, and only with proper registration with the Copyright office.  

That invokes still another grim possibility, however, that “trolls” will bring frivolous actions against service providers or smaller e-commerce sites with the intention of extorting settlements, in a manner reminiscent of Righthaven.  Lawyers say that SOPA replaces a "adversarial" process with an "ex parte" risk.

There is a lot of discussion (particularly in Google’s comments) about “technically feasible” ( a phrase that sounds evasively vague) means being expected of sites to preclude illegal activities by customers or users  -- particularly to prevent, or to prevent "access" to "illegal sites" from their plaforms.  This concept may have also generated a lot of speculation that SOPA "directly" requires preemptive monitoring (as well as mandating it in practice between of the "misbehavior veto" problem).  It has even led to talk that sites or blogs could be brought down for hyperlinking to illegal sites (or does the TF requirement only apply to higher level providers?) .  The language of Section 102, when I read it, suggests to me that normally sites and providers have five days after being served notice to block access, although they're supposed to "harder".   The notion that this could apply to normal sites and blogs prospectively sounds very unlikely to me: in general, a blogger when linking to an article on another site has no conceivable way of knowing if that site is somehow, in a downstream (mathematically connected manner) involved in infringement somewhere else in the US. (I could add a caveat to that statement, though.  Some anti-virus companies, especially Webroot when running on newer Mozilla platforms, inform users that they are navigating to sites known to be associated with malware.  Other sites, my MyWOT, warn users about sites known to have unethical business practices even without malware.   It’s not hard to imagine this sort of screening at the browser level being viewed as “technically feasible” and bloggers being told they must use it (at least if notified of a problem).  (Embeds, which are really "just" links according to EFF, could raise interesting questions under SOPA).

In my own case, I probably have limited exposure.  I monitor comments on blogs, and on doaskdotell.com (my main site, originally called hppub.com, since 1997) I publish readers’ comments only in one specific subdirectory, after monitoring.  But in theory my shared web hosting provider could perceive unknown risk from me and all other shared hosting providers.  (I’m up for renewal in 2013.)  SOPA also raises still another question in my mind: could pro-active monitoring somehow make one more liable for downstream infringement, for missing an infraction? Maybe it’s actually safer not to monitor. It’s hard to tell. 

Since around 1996, the Internet has been based on user self-publishing and, by and large, freedom from downstream liability to service providers for either torts (libel) or copyright or trademark infringement, outside of some limited areas (Safe Harbor).  This environment does promote a degree of “amateurism” which some people do not agree with.  Also, the open environment invites cyber-abuse, as I covered on recent posts (Anderson Cooper shows).  Some people may also fear that “low cost” or no cost competition from bloggers (not infringement, just competition itself) harms the established media businesses and costs jobs.  In this environment, some in Congress may believe that the “open environment” should go away, and that “newbies” should be forced to compete in the world in a more conventional fashion, as in the past. It’s hard for me to tell from this legislation if that is what they believe (some comments by the US Chamber of Commerce were disturbing and Anderson Cooper has recently criticized what amateur activity on the web opens the world up to).  It also seems that most in Congress do not really understand how the Internet works.  There are many lawful business models (often related to private or public holding) on the Internet, and they can come into conflict.  

There’s a final personal experience lesson, referring back to an incident when I was subbing, described here July 27, 2007.  In that case, I mentioned my doaskdotell site to a staff member in discussing a political issue (at the time, campaign finance reform), and suddenly the school came down on me because someone thought that two files on the site (out of over 1000) compromised my own reputation.  Again, the presence of one problematic object on a site renders the entire site or operation legally vulnerable. I haven’t forgotten this lesson.

 I'm still wondering: when should I pay for someone else's sins?  I guess if I take advantage of the process that allowed the sin, maybe?  We all live in a community.

Update: Nov. 27

The New York Times has a reasonable editorial and proposed solution "Going After the Pirates" here.  I'll come back to the proposals here soon.

Wednesday, November 23, 2011

It's harder to be a Good Samaritan, or accept one

MSNBC tonight ran a video on the Thanksgiving spirit, showing how farmers in Illinois help each other get crops in on time. 

This story reminded me of an incident in September 1992 when I was on a bike trip with an outdoors group called Adventuring. In Delaware (the Blue Hen State), I fell behind and lost the pack (there was a period of heavy rain).  I needed to get back to the Eastern Shore town of Millington, MD to get to a particular house for dinner.  There was a stretch of US301 that is like an Interstate (once crossing into Maryland from Delaware), on which bikes are not allowed, as I recall. 

Just at that moment, an elderly couple in a pickup truck appeared and offered me a ride to Millington, with the mountain bike in the back. I can’t explain my luck to run into a good Samaritan. 

Yet, could I change a tire for someone?  Could I give someone a jump start?  Today that seems a bit dangerous (given a recent incident in Tysons Corner, VA).   We are becoming less willing to accept interdependence, not good for long term sustainability. 

Give thanks for past good Samaritans.

I did make a small contribution to Wikipedia this evening. I depend on it. 
Support Wikipedia

Tuesday, November 22, 2011

Money: when "fiat" it means less (and socialization means more)

The Opinion section of the Washington Times on Nov. 22 has a piece by Cato Institute fellow Richard W. Rahn, “Making Money Disappear: Currency not tied to gold or other standard becomes worthless”, link (website url) here

I’d also like to call attention to an Atlantic article (reprinted Sunday in the Dallas Morning News, my "entertainment" while having a burger at JR’s – watching the Redskins lose when I was in Big D), by Megan McArdle, “The Financial Folly of Fairness”, link here

All this is important to my own writings. Rahm points out that “fiat money” is an exchange medium, declared by sovereign government as currency, but not tied to a limited physical asset (gold, or anything permanent and scarce of intrinsic aesthetic value).   Wikipedia doesn’t emphasize the lack of physical standard, and I’ve often used the word “fiat” for any sovereign currency, which isn’t technically correct.
It’s useful to think about what money means in a “perfect market”.  If I own a gold coin, I own the proportion that it represents of the world’s goods and services. I surrender it to purchase something. If I loan it to you, then you acquire the goods, but owe me, and must pay me back later with slightly more coins (or troy ounces).  There’s a slight risk you might not.  (So I might check your FICO score first, or even try to gauge your reputation online from search engines and Facebook.) The same is true if I deposit the coin in a bank. It owes me on demand, but there is a slight risk that it might not redeem it.  McArdle argues how such ideological simplicity fed the Great Depression (bank failures and wipeout of savings), and she could be right.

If you tweak the meaning of money, you can make an economy seem to be safer for most people.  I know libertarians don’t like to hear this.
As a writer with some screenplays and novel manuscripts to try to get published or made soon, I can say that I’ve toyed with the notion that another civilization (say, a planet 30 light years away) might get by without money (fiat or not).  How?  Well, other animals (lions, wolves, prairie dogs  and beavers, dolphins and orcas) have complex communities of individuals without currency.  Instead, they seem to have rigid, authoritarian (alpha-male driven) social structures (not to the point of beehives).  Could animals with human intelligence.  Maybe that’ the orcas.  With human intelligence and the ability to make tools – machines – and set up a division of labor across an economy?
I think it’s possible, and disturbing.  (I think Clive Barker tinkered with this idea about the connected dominions in his 1991 novel “Imajica”.)   On another planet, you could probably have Facebook and not money, but you would have very rigid social structures and other ways to see who “paid their dues”.  And people would have to watch each other’s back, play “brother’s keeper”.  But maybe you could have a benevolent timocracy as government – for most people.  But, however you cut it, something bad would happen to the individuals who “didn’t make it”.

Of course, we say, that’s the point of a market economy. Strict enforcement of individual “moral hazard” makes it fair. But it can’t.  What about the “losers”?  We have to deal with the fact that people don’t start in the same place in line (even on an adjusted jogging track).  So fairness is more than just individual justice; it has to do with socialization (especially “family”)  and living in a community.  Hence, Megan’s arguments about what really works.
Many of us experience the first two decades or so outside of the “market”. Our parents and schools control us, and our futures are impacted by how well we do. Grades become a currency. When I was coming of age, grades could determine whether you (if a male) could be drafted into combat – sacrifice for others.
All of this matters as we contemplate all the calls to regulate the Internet, from SOPA (aka Protect-IP) to gutting Section 230.  People sometimes do get forced to give things up that mean a lot to them and play Brother’s Keeper.  We have to watch the current debates very carefully.

Anderson Cooper presents another story about third-party postings that sunder reputations

Today, Anderson Cooper presented more situations where people sunder the reputations of others on the Web, and like it or not, Section 230 is relevant. 

The basic link for the episode is here

Compromising photographs of at least two women were posted as “revenge” by ex boyfriends, and linked to the women’s Facebook pages.  Anderson called the practice “revenge porn”. 

The man who runs the site is Hunter Moore, and there is a story about him on “theawl” by Danny Gold, link.   The site is called “Is Anyone Up?”  It does not have a good reputation with MyWOT according to Firefox.   There’s another site called “Alternate Press” with a disturbing story here.

Moore (with tattoos) appeared on Anderson’s show, and when Anderson chided him, his rationalizations seemed simplistic.  He seemed to have no concept of karma.

Anderson asked Moore if he would want his sister to be exposed to what can happen on his site. Moore said, no; that raises the question as to why there would be different standards of what is all right for relatives as opposed to everyone else. 

Bill Stanton (here) also appeared, and explained how the Internet is still the “wild west” and how the law hasn’t kept up with it. 

Anderson sounded critical of sites that have no oversight as to content that people post on them (that is, the concept of self-publication, facilitated by Section 230 and DMCA Safe Harbor). 

Anderson Cooper ("Strong Child Productions") should certainly consider inviting Michael Fertik (Reputation Defender) to his "real conversation". 

He said, "if you make a mistake, it's there forever".  You can't make a mistake anymore.

Update: Dec. 12

Facebook took some legal action on this matter, story here.

Monday, November 21, 2011

Conservatives and "social combat"; what if you could become someone else?

What do the “rich social conservatives” want?  Yes, power and control.

But their vision of life seems to be predicated on recognition of success in “social combat”, which includes the ability to use marriage and family as a tool for social competition. The new film “The Descendants” shows that quite well. 

What’s supposed to happen to “weaker” members of any family?  They’re supposed to be “loved” and “valued” as human beings in the context of being loyal family and community members. But because they can take less responsibility (as a result of the outcome of competition), they’re supposed to remain quiet, not be heard or listened to, and accept their dependence (even in terms of karma) on stronger family members.  And, oddly, they’re supposed to try to continue the family anyway, or else stay home and look after other family members when old. Even according to conservative, Southern Baptist kind of thinking, it’s apparent that this sort of moral thinking runs into its own contradictions.  You have to be able to speak up.  Look at the recent scandals, as to what can happen.

What answer do such “conservatives” have to what Anne Richards called the “silver spoon” problem? Well, if you have to live by strict sexual morality (and experience sexuality only in one lifetime marriage, avoiding even fantasy), you don’t have too much natural incentive to take undue advantage of inherited good fortune. You give back. 

We all know that doesn’t work too well in practice. Cheating and corruption abound. And with changing demographics, everyone knows they will be responsible for others eventually, so many men have a feeling they will take “their due” anyway.

Is a world where social competition is the only permitted path to recognition worth living in?  I wonder.
I had a “lucid dream” a couple nights ago.  Based a bit on my novel.  There was some plateau out west where you go to experience a ritual that gives you a preview of the after-life, astral city.  Your body has to be prepped and continually monitored during the experience.  Some people find they get linked to the identity of someone else more desirable (an angel, maybe), and spend only a small portion of time in a purgatory wilderness as themselves.  Some seem to disappear. Others perish.  A lucky few make it down the mountain having learned from the experience, which costs about $200000, like space tourism. Remember the David Lynch film "Lost Highway"?

Oh, there’s one other thing I caught wind of this morning. There is some sort of threat to shut down online poker, which cuts off all livelihood for more people.  I’ll have to follow that later.

Sunday, November 20, 2011

SOPA and my own "business model": Bad Karma? Industry needs to expand the iTunes concept

On the SOPA debate, I asked myself yesterday, does my “operation” as a blogger-journalist actually threaten the jobs of other people who really need to support a family on the income from media employment?

That question bifurcates.  I don’t pirate or reproduce others’ work, although I sometimes rewrite or re-summarize stories, stating some significance, with attribution. (I’ve talked about that with the Righthaven mess.)   Am I “no cost competition” to the news establishment?  No.  I think I direct people to the right places in major sources.  I may in fact increase interest in major news stories.  I don’t think that my own “content” has cost one person a job anywhere.  I may have helped a few media organizations add jobs.

But I do depend on an “open” Internet model that by and large precludes most downstream liability to providers (both Section 230 and DMCA Safe Harbor).  It’s important that these limitations on prospective downstream liability remain in place, even if there are measures to block content, domains or payments after the fact (with some due process) when infringement is discovered.  

There are those who will say that this “no downstream liability” model necessarily leads to infringement that costs media jobs, so if push comes to shove, jobs for supporters of families comes before protecting non-revenue-modeled soap boxes like mine.  Call it “Bad Karma”.  
Does piracy really cause massive job loss in the media?   Generally, people who download and watch pirated content would not pay for it at all, and simply would not see or hear it. So “piracy” probably does increase exposure for some artists, in practice.  It probably doesn’t reduce income very much (either for rich stars or for newbies) since most people who don’t pay probably can’t very much.   I am somewhat with the crowd that says current copyright law doesn’t protect income and jobs really that much (Cato Institute and others have produced such studies).  Nevertheless, small movie distributors of LGBT material (like Wolfe) insist that piracy does threaten the production of small film.  With niche markets, some people will pay if prodded to.  

Along these lines, I think content distributors ought to take a heed from Steve Jobs’s  iTunes model and offer more short episodes of material for low rental (like $1.99 or so) on YouTube, Vimeo, Logo, etc, as an alternative to depending on advertising (which disrupts the viewing experience).  If a distributor has a film with a provocative passage (like the end of Strand’s “Bugcrush”) that it suspects some viewers want to see repeatedly, it ought to offer a rental or digital sale of that short passage for greatly reduced price.  And more film festivals should take heed from Tribeca and offer films for 24-hour rental on YouTube for like $3.99 or so.  I think these measures will do a lot more for media jobs than SOPA.

The consumer should realize that he or she will still have to pay a reasonable price for some content, and accept the idea that some paywalls are necessary for quality content to continue to be produced.