Monday, March 30, 2015
Can a newspaper safely report an employment dispute, especially when it has political (or fairness) implications?
An article by Chico Harlan on the Washington Post
Wonkblog reports that a manager at a franchised Days Inn in Pine Bluff, AR
threatened to sue (the newspaper and perhaps the reporter) if the paper
published an article involving him and/or a particular employee who would be
terminated after talking to the Post about the small increase in the Arkansas
minimum wage. The link is here. The
manager is reported to have made a comment about employees wanting “free money”.
It appears that she was terminated for talking to the
papers, although the facts are a bit complicated.
Michelle Singletary tweeted the story today.
There’s no question that it is difficult for people to
raise families on low-wage work. In some
cases, poor choices have contributed to the workers’ situations. Is this a legal situation, like my “conflict
of interest”? It hardly seems that she
makes enough or has enough responsibility.
Is it whistleblowing? Not
exactly.
It’s probable not something that could be rectified in
court. But hopefully, other businesses
in the area will offer hire the person, given popular outcry. (That’s better than “gofundme”.) And hopefully Wyndham Worldwide will step in
and exercise a tighter rein on the acceptable conduct of management of its
franchised properties, because stories like this are not good for its brand or
its ability to provide customer service.
Wikipedia attribution link for photo near Pine Bluff
by Keith Wahl, Creative Commons 2.0 license
Friday, March 27, 2015
Broken links on some of my older domains: some feedback
Recently, I got an email from a college student about
some broken links on my “doaskdotell.com” domain. In fact, the page in question was a “links”
reference page, and the links in question concerned Gays and Lesbians for
Individual Liberty (GLIL) which was very active in the 1990s. I was the editor
of its newsletter, “The Quill” in 1995 and 1996.
I’ve experimented with several domains, as summarized
on Wordpress in January 2014, here. I started with Blogger in January 2006 and
started increasing my use of it around the start of 2007, and using the “doaskdotell.com”
domain less. Generally, the only two
files on “doaskdotell” that I maintain a lot to day are the “XREF” (upper left)
cross reference, to major media reviews, and the “content navigation guide”.
I do have a lot of “sidebar” and “opinion” pieces
there that predate my starting with Blogger in 2006. Generally, the functionality of these pieces
is replaced by Blogger (and now Wordpress).
Likewise, the Movies, Books, and Drama (and music) reviews were
continued on appropriate blogs on Blogger and now Wordpress (the special “Media
Reviews” blog).
Also, my Wordpress blogs exist mainly for two
purposes: to provide more detailed notes for my three DADT books, as new issues
come up (replacing the “footnote files” on “doaskdotell”), and to reinforce
older media reviews or do special ones related to my own writing projects. I also document the progress of my
screenplay, novel and music projects here.
Sometimes I place additional QA session videos here, too.
There is certainly an issue with allowing older sites
to stay up when they are not often maintained.
I have thought about removing a lot of old content, but this would take
non-productive effort! What I will do
more of is tagging many of the opinion pieces and link references with dates
showing when they were created. Over time, many links in older pieces do tend
to disappear.
There is also an issue with the quality of
comments. Most of my blogs have
automatic spam filtering of comments.
One of them does not, and so occasionally I have to mass mark about 2000
comments as spam. The quality of
comments on blogs is not what it once was, as so much commenting has moved to
social media (although established newspapers seem to be able to keep
attracting comments, as do more specialized sites).
I’ve noticed that there is a certain immaturity even
behind the legitimate comments. There is
a certain tendency to resent “know it all’s” and to looks for easy answers to
immediate questions.
As to the links, I suppose I could consider installing a "broken link checker", link this one, on older sites, even blogs. You can read the pros there for using them. I get a lot of emails and tweets from SEO and other website services, and get so wrapped up in "news" and current projects that I don't respond to them often.
I can even imagine that in the future, web hosting companies or service providers could feel some incentive to monitor the quality of visits that websites and blogs, especially run by amateurs, receive from the public. That could involve metrics like bounce rates, depth, distinct visitors, and new visitors. They could also become concerned about the quality of links and their management. But that speaks to a more authoritarian kind of world where speech and broadcast is not as spontaneous as it is today. Sounds like China.
As to the links, I suppose I could consider installing a "broken link checker", link this one, on older sites, even blogs. You can read the pros there for using them. I get a lot of emails and tweets from SEO and other website services, and get so wrapped up in "news" and current projects that I don't respond to them often.
I can even imagine that in the future, web hosting companies or service providers could feel some incentive to monitor the quality of visits that websites and blogs, especially run by amateurs, receive from the public. That could involve metrics like bounce rates, depth, distinct visitors, and new visitors. They could also become concerned about the quality of links and their management. But that speaks to a more authoritarian kind of world where speech and broadcast is not as spontaneous as it is today. Sounds like China.
Thursday, March 26, 2015
Another lawsuit against a consumer for a "bad" review, against a dog training business in northern Virginia, stirs debate on anti-SLAPP in more states; also, reviews are safer if they stick to "opinions"
There’s another defamation lawsuit (for $65,000) against a customer
for a negative review in northern Virginia. This time, the business is Dog
Tranquility, in Burke, VA and the consumer is Jennifer Ujimori, as reported in
the Washington Post by Justin Jouvenal in the Metro Section, first page on
Thursday March 26, 2015, link here. Jouvenal links to an earlier Post story on December
4, 2012 about another earlier suit in Fairfax against a home remodeling
contractor, “In Yelp suit, free speech on Web vs. reputations”. Indeed!
The reviews had been posted on Yelp and Angie’s
List. The Yelp review was removed by the
company, so far. The business claims it
had tried to work with the consumer.
The consumer says that businesses are playing hardball
by forcing consumers to spend money on legal fees to defend possibly frivolous
suits. The businesses say that one bad
review can deep-six them, and the owners have to make a living to provide for
their families in the real world. In the
US, “truth” I an absolute defense to libel (no so in Britain, according to
Kitty Kelly). Still, it can cost money
for a defendant to show “truth” to a jury (by a 51% preponderance). Some regard the suits as a form of legal
bullying as a “real world” tactic.
In the video above, reporter Jouvenal says attorneys
tell him that they should stick to “opinions, not facts”, because there is an “Opinion
Rule” that says that opinions alone cannot be defamatory. But when reviewers
state “facts” they may have to prove the facts in court at their own
expense. Think about this. When I have a fender-bender, I don’t report
the “facts” about an accident online.
In this specific case, the news story reports the
business owner saying that, as a small business owner, the business has to “rely
on these review sites as a major source of advertising.” To me, that sort of argument doesn’t sound
like it can work; review sites are a
kind of “journalism”; they are not “supposed to be advertising”. Except when
they are!. But, true, some of the
material I get from Angie’s strikes me as “advertising”, personally at
least.
In another case, Hadeed Carpet Cleaners, the Virginia
Supreme Court will decide soon whether Yelp must release the identities of
anonymous “critics.” Electronic Frontier Foundation, among others, has been a
strong proponent of defending anonymous critical speech on the Web. (This was reported here Jan. 9, 2014.)
The consumer wants to encourage Virginia to pass an “anti-SLAPP”
law, similar to what exists in DC, Maryland, California, and over half of
states. SLAPP stands for “Strategic
Lawsuit Against Public Participation”.
Such a law allows a judge to dismiss a frivolous suits on First
Amendment grounds.
There are other accounts already on the case. The American Bar Association has a summary (with some of the reported fact pattern) here. The "Inquisitr" has a valuable article on the underlying debate and how it could affect the "consumer review site" industry here.
There are other accounts already on the case. The American Bar Association has a summary (with some of the reported fact pattern) here. The "Inquisitr" has a valuable article on the underlying debate and how it could affect the "consumer review site" industry here.
I do belong to Angie’s List and get its magazine by
mail (their article on water heaters and new EPA standards sounded important,
for example), and I get contacted by email to write reviews all the time! I don’t do reviews on these sites. News media
has reported on Angie as aggressively promoting her business model. Wikipedia characterizes it as “subscription supported”
with “crowd-sourced” review content.
I do have a few
small disputes in the past, a couple outstanding, but not of an existential
nature. One of these concerned an unqualified
assumption sale of real estate in Texas in the early 90s. and another involved
my tangential involvement with a dubious discrimination claim by another
employee back in the 1990s. Had that
case gone to trial, my first book might have been delayed, as well as my 1997
relocation! Generally, I don’t settle
individual disagreements online, as, yes, that’s dangerous. On the other hand, “journalistic integrity” would
seem to demand full disclosure eventually.
I may eventually give more details on some of these on my “Do Ask Do
Tell Notes” Wordpress blog.
Update: March 27, 2015
The NBC Today show covered this incident briefly, and conducts a survey that reports that 87% of respondents report that review sites affect their purchasing decisions. I replied "No", although I sometimes look at hotel reviews (does the WiFi work?) and movie and theater reviews. Frivolously, an actor said he wondered if Hollywood would sue critics.
The UK Daily Mail has a story by Evan Bleier, and the comments are interesting. The story also has screenshot illustrations of the review process. One comment suggested the defendant use "GoFundMe". That strikes me as a bit tacky, but the defendant probably does get a lot of "free publicity", which maybe she didn't want. The business owner is likely to get resentment from the public for merely filing the suit, which may hurt business more than the review itself.
Update: March 29
Rick Callahan, on p. A3 of the Sunday Washington Post, in discussing protests against Indiana's new "religious freedom" law. notes that Angie's List has considered adding (or moving) 1000 jobs in Indiana (link here). Wikipedia says it has over 1600 employees now. I had no idea that a review site company could need so many employees and was this big! In fact the Indianapolis Star reports more detail about possible cancellation by Angie's here. The company had planned to rehab a run-down area of the city (in which I worked for the summer in 1970).
Update: April 1
There has been a sequence where people posted negative reviews of an Indiana pizza place over its position on gay marriage, with the reviewers never visiting the place, on Yelp, story by Robby Stoave on the Hit-Run Blog on Reason.
Wednesday, March 25, 2015
Fair Use needs to apply to documentary film; clumsy renewal process at Copyright Office in progress now
“Fair Use” has always protected brief quotes of the
work of others in essays and books, for the purposes of criticism. But that does seem to apply cleanly to
documentary filmmaking and the video essay.
There are strict industry practices to prevent DVD
ripping, which you see on every DVD you buy or rent from Netflix. These were to prevent piracy and undermine
the whole industry. The obnoxious
anti-piracy warnings, usually in many languages and alphabets, warn of fines
and incarceration, all implemented legally by the Digital Millennium Copyright Act (DMCA) of 1998. There seems to be a small exemption that applies to
documentary film which the International Documentary Association has requested
be expanded in 2015.
The IDA has a FAQ page for filmmakers here. The IDA submitted an exemption extension
request to the United States Copyright Office in early February 2015.
Sonny Bunch has an article in his “Act Four” column of
the Washington Post on March 24, here.
I wonder what the George Washington University Documentary Center, which has advertised at the nearby West End Cinema
(sadly closing) would say about this.
Tuesday, March 24, 2015
Current international tensions and military operations could pose new issues for "user generated content", even for civilian speakers
For bloggers, it’s generally safe to hyperlink to
things they want. In practice, this has
been true for video embeds, too. It does
seem that in a few rare cases, people have been sued for defamation based on
content that they have linked to. The
risk is reduced when links are to normally “reputable” sources.
Remember, the 1996 Communications Decency Act had
aimed to make it illegal not only to present “indecent” content but even to
link to it, which could set up a “chain letter problem”. That provision was struck down by the Supreme
Court in 1997, but ironically, one of the subsections of the Act, which is
properly called the Telecommunications Act, was Section 230, which protects
service providers (and forum moderators, for example) from downstream tort
liability (like defamation, privacy, injury) for content provided by
others. In recent years, especially in
the age of cyberbullying and revenge porn, some see this as controversial. But it also means that bloggers wouldn’t normally
be responsible for torts committed in comments, and moderating comments (for
spam) does not compromise the protection.
It would seem that posting a link to a site providing
encouragement for illegal behavior (especially child pornography) might be
illegal if done intentionally, as part of a “conspiracy” to instigate such
behavior. It isn’t too much of a stretch
to wonder how the law could apply in matters related to terrorism, such as
instructions for munitions, or most recently, links to a “hit list”. Of course, such a concern could have existed
pre-9/11, with issues like organized crime (and incidents like these happen on
soap operas today).
It’s also logical to wonder if this could apply to
more recent news stories related to US military activity overseas. Arguably, this concern moves beyond crime to
asymmetric warfare, of an unprecedented nature, with the potential to disrupt the
user-generated-content world in blogs and social media (without gatekeepers)
that we have come to take for granted.
The concern regarding war is not totally
unprecedented. In past generations,
established news generations had to “worry” about this during the Vietnam War (“The
Pentagon Papers”) and even WWII (“loose lips can sink ships”). The career of Alan Turning becomes incredibly
ironic in retrospect. It was common for
the radical Left, especially in the late 60s to early 70s period, to regard
military members who flew the “Nixon” raids over the Vietnam theater as personally
culpable, and I even recall going to meetings where these things were
said.
Saturday, March 21, 2015
"Fantasy" case for New York City police officer raises serious "implicit content" questions; when is the "purpose" of speech actual conspiracy?
Electronic Frontier Foundation, in an op-ed by Hanni
Fakhoury and Jamie Williams, has discussed a case in New York City with some
parallels to the issue of my own content when I was working in 2005 as a
substitute teacher, explained in detail on this blog July 27, 2007 (with a link
to Wordpress where there more computer forensic evidence is shown in detail). The link for the story, with important
sublinks for amicus briefs, is here. EFF calls this a "thoughtcrime" (or is it "pre-crime", like in the film "Minority Report"?)
The case at hand is United States v. Gilberto
Valle. The defendant had been a New York
City police officer and was convicted of violating the Computer Fraud and Abuse
for using a NYPD database for non-business purposes. That may be justifiable - certainly
termination would make sense, although EFF has also argued that violating an
employer’s computer use policy should not itself be a prosecutable crime. But he was also prosecuted for conspiracy to
kidnap for statement he had made in chat rooms or on websites devoted to
fetishism, especially cannibalism.
Speech that actually conspires to commit a crime is,
of course, not covered by First Amendment protection. The problem here seems to be whether that was
the “intent” or “purpose” of the defendant’s speech, and particularly whether
other visitors would likely perceive criminal conspiracy and participate.
A jury convicted the defendant of conspiracy, and then
the trial court decided to vacate the verdict, but the government appealed to
the Second Circuit.
In the video below, note the emotion (and sense of being offended) of the speakers,
and the unwillingness to consider whether this was just “fantasy”.
There seem to be two elements here. One is broad context; statements need to be
compared to the totality of a speaker’s content, at least insofar as it is
likely to be found. The other is a narrower notion of contest, as to whether a
visitor knows that this is fantasy or fiction.
Eugene Volokh at UCLA (“The Volokh Conspiracy” ) and the Scott and Cyab Banister First Amendment Clinic at UCLA contributed.
In my situation, there was another element: whether
fiction could be interpreted as predictive of real life, particularly if a
character were recognizable. The
protagonist in the screenplay treatment (“The Sub”) arguably closely resembled
me. Since both resources that EFF used
come from California, those resources are probably familiar with Bindrim v.
Miller (1979). However, that case would
not be precendential in New York (or Virginia in my case) or at the federal
level, although arguments made in the case could be useful. In the screenplay, the male substitute teacher
allows himself to be “seduced” (so to speak) by an unusually precocious but
legally underage male high school student. I’ve discussed it here as an “implicit content”
problem: would a (minor) visitor
interpret my “purpose” (a word in Virginia computer law) as enticing him to try
to duplicate the plot of the screenplay?
Of course, this idea has been done in commercial film
(Lionsgate/Lifetime’s “Student Seduction” in 2003, Movies blog May 4, 2010) and
incidents like this (usually heterosexual) have occurred all over the country
since then, resulting in teacher firings and sometimes prosecutions. But then there is a “conflict of interest”
problem as to whether an employee (like a public employee) could be prohibited
from speaking about an issue like this in the open (without a gatekeeper)
because of the “implicit content” problem (which, by the way, got mentioned in
the COPA trial in 2006, the day I was there). Theoretically, my legal position might be sounded if the piece had been paid for by someone else (had been written for compensation), which is ironic.
In my case, I was “banned” from the school, but
allowed to continue subbing everywhere else, after the school district reviewed
some of my other material and determined the “context” of the speech (the fact
that I had authored books on gays in the military, etc). But, Volokh argues that a reader should know
even from visiting a single web page, in many cases, that the material is
fiction or fantasy (but then, at least in California, does Bindrim matter?)
I eventually left subbing (in 2007) and now have made “The
Sub” (a short) a backstory (at a “fiction” level) of a feature screenplay now
called “Do Ask, Do Tell: Conscriptied”
It is taking a long time to develop it.
There have been serious comspiracy cases in pre-Internet days. In 1988, some people were arrested in Richmond VA for trying to make a "snuff" film.
Labels:
conflict of interest,
fantasy,
implicit content
Friday, March 20, 2015
Should the "outside world" matter to creative people?
Should “creative” people follow the outside world
carefully?
I say yes, even though I sometimes get feedback even
from “peers” who say they don’t need to get bad news or scare talk from me on
social media.
It is true that I am effective in the world only
because there is a “civilization” that is stable enough for me to operate and
find my niche to fit in. When I hear
about the outside terror threats, or the talk about years without electricity
after a massive solar storm, yes, I get where the “doomsday prepper” crowd
comes from, and the whole survivalism mentality.
And I want to reinforce that I have nothing to offer
such a world. I hope that there is no
subsequent final act for me after an “Event” like that.
Of course, that begs a question, do I care about the
people who read or use my media?
At one level I do, of course. But I seem unwilling to
allow intimacy and meaning in relationships where normally it might be
expected. You could say I am not “right-sized”.
For example, in the middle 1970s, I made a lot of the
Arab oil embargo, which at the time had the potential to keep me from “getting
around” and finding the kind of person I wanted. (There were those who equated personal
mobility then with “power”.) But the
implication is that I am just not responsive enough to people, or else I could
find (heterosexual) satisfaction in normal suburban family life and “stay home
more”.
In the 2000’s, the issue transport to the area of the
permissiveness of the Internet world, and the whole downstream liability
question I often discuss here. Translate
that to, “open access”. Yet, this
impacts more family-centric people who take more personal risks than I do in
having and raising children. And, yes,
they have to make a living, so the breakdown of old ideas of marketing and the “it’s
free” concept does tear at them.
Of course, this whole idea of personal “right-sizing”
invokes the whole question of “belonging” – to a family (even if you didn’t
create your own), a nationality, or particularly religious fellowship (or, “the
Fellowship of The Ring”). Then, you have
to accept the idea that your group may have to prove itself right, and that
invites war (even over religion). How
would I like to be in the moral position of a teen raised on a West Bank kibbutz? It's easy to be smug about the idea of not having to be jealous, and not having to take up arms over something like religion, and not having to walk picket lines. There's no honor in victimhood.
In those awful days at NIH in 1962, I used the phrase "on the outside" a lot. I was the only inpatient on 3-W who knew about the Cuban Missile Crisis.
Wednesday, March 18, 2015
Advances in search engine technology, developed for science fairs by Canadian high school student
There is some new technology for searching shorter
posts, especially in social media sites, by looking at statistical correlations
of abbreviations and character strings that are common in tweets, texts and the
like. It is called “Apodora” and was designed by a Canadian high school student
Nicolas Schiefer and entered into science fairs. There is a story my Emily Jackson in “The
Globe and Mail” here.
Jack Andraka mentions it on p. 152 of his new book “Breakthrough”,
reviewed today on the Books blog.
Of course, short text content is much more likely to
be whitelisted or to have privacy controls to keep them away from search
engines.
Tuesday, March 17, 2015
Blogger now offers expedited connection to unique domain names; but I need to think through a couple of issues first before signing up
Starting late Monday, I’ve noticed that when I sign on
through Blogger to any one of the sixteen blogs on it, for the first time for
that blog, I get a notice “Find a domain name for your blog and connect it
instantly”. I tried the link for one
blog, and was invited to purchase the domain for $20. I didn’t do it right then, and here is where I
stand on it.
I do think it is a good idea to connect blogs to
independent A-record domain names (they will still end with “.com” and I wonder
if a different tld would be more descriptive).
I already do this with Wordpress.
In the past, Blogger has always said you have to
purchase a domain name first, from one of several companies (especially
GoDaddy). I will need to find out
exactly how this works, with what company, now long the renewal term is, and
the like But it sounds like a good thing
that the “WHOIS” connection is supposed to work, as Alan Turing says in a
recent film, “instantly”.
The best reference I can find right now for this new capability
is here in the Blogger Support forums.
There is another issue. My main tech news blog is called “BillBoushka”
(as one word, on my Blogger Profile) I
have a small domain (on Verio) named “billboushka.com” already, on a Unix
platform. It was set up in 2005 and had
been originally intended to be a simpler map of the content on my “doaskdotell.com”
which was set up to support my books.
More recently, in late 2013, I set up “doaskdotellnotes.com” on
Wordpress with BlueHost, to provide more detailed “footnote” support for my third
“Do Ask Do Tell” book that came out from XLibris in early 2014. I also set up a “Bill’s Media Reviews” on
Wordpress, to provide supporting materials for my own screenplay and
documentary film proposals, for networking with others (and also information
about my novel). On that blog, I discuss some films and books and television
series that may have been covered on Blogger or earlier on the “doaskdotell”
site (before I started using Blogger heavily for media reviews in 2007).
There is also a site “johnwboushka.com” on Network
Solutions, set up as a resume site related to my old career. That succeeded a java starter site for that
name when the service provider failed in 2006, an effort that had been intended
to support an “opposing viewpoints” database.
Some of that functionality is now on MySQL on “BillBoushka.com” but I
haven’t worked on it recently.
That raises another question: Why do I leave so much “old stuff” up? I do work solo, and it is difficult to get to
everything all the time. In more recent
times, most of my time has been spent with Blogger, Wordpress, and the music,
novel and screenplay projects. I see I
covered some of this on Nov. 2, 2014 and Feb. 8, 2015. Much of my behavior is “practical”. It is difficult to say with certainty which
platform will be the most reliable for the indefinite future, so I have an
incentive to keep “old bridges” open. Yes,
geeks, there is a metaphor in the Seven Bridges of Konigsberg problem in
topology (here ).
So, with all this going on, I do need to process which
blogs to name at the “A level”. I would
expect me to get this done within 30 days, because other work goes on, and I
can’t stop “in the middle”. I did sign
up to follow Blogger on Google+, and see what is happening with other bloggers
from social media and help forum posts
first. The most urgent is probably the Movie Reviews Blog (the largest).
It's important to note that, with Wordpress, hosting companies often provide a copy of Wordpress in your space, and maintain the latest versions for you (or give you a link to refresh with routine software upgrades). There is a difference, in terms of how TOS and customer support works, between this kind of full hosting (which is desirable), and merely equating a domain name on someone else's free space. I'll have to check and see exactly how the new Blogger domain names work in this regard. Another thing I would like to see all blogging platforms do is work cleanly with Microsoft Word (get rid of the unnecessary XSL), when the post is written off-line first. Wordpress actually retrograded in this regard.
The blog named after me (by nickname) has to be thought
through first because I already took my own name. How is that for a trademark problem!
Update: Mach 27
Nitecruzr on Blogger offers this explanation of redirection, not his detailed sublink and detailed examples.
Update: Mach 27
Nitecruzr on Blogger offers this explanation of redirection, not his detailed sublink and detailed examples.
Monday, March 16, 2015
Facebook tries to fine-tune its TOS rules; when should blogger-journalists report violations or contact police? When does "see something, say something" kick in?
The New York Times, in a Business Section article
Monday March 16, 2015 by Vindu Goel, with a rather beefy picture of Mark
Zuckerberg, p. B6, reports “Facebook clarifies rules on what it bans and why”,
link here
Facebook has in fact posted its new Community Standards page here.
Facebook has in fact posted its new Community Standards page here.
Apparently (contrary to my perception), Facebook has
been stricter than some portions of Google (Blogger) on porn, which recently
generated controversy. It also bans
certain violent or hate-filled content or that sponsored by terrorist
groups. It does not seem to have as much
trouble as Twitter in the latter regard.
The company is apparently banning revenge porn for the
first time.
Facebook has also started to soften the rules on using
real names, as it now allows drag queens to use stage names (which had always
been the practice on Myspace).
Facebook still enforces its standards ex post
facto; it depends on users to report
violations. This is something I have
never done.
After a particularly baffling crime in suburban Maryland
in 2008, however, I found “threats” regarding the incident on MySpace, and also
on two Blogger postings that I believe Blogger would normally have removed
according to TOS policies at the time. I
did not act until 2013, when I mentioned the case to a northern Virginia police
department in a case that turned out to be unrelated. So, in practice, I don’t usually complain or “tattle”
unless something I find rises to the need to contact law enforcement, which I
think has happened about five times since 2001.
There is a really good question: what should an individual “blogger journalist”
(without “privilege” to “protect sources”) do when finding information that law
enforcement is likely to have overlooked because of some unusual aspect about
the way content is perceived or interpreted?
Sunday, March 15, 2015
Musicians generally disagree with the "Blurred Lines" verdict, for good reason; compare to classical music examples
So did Robin Thicke really “plagiarize” Marvin
Gaye? The YouTube clip below is one of
the closest comparisons I can find.
Generally, other musicians (including pop) are saying,
no, the two songs are different, and the “sampling” does not represent
infringement.
I hear an underlying common rhythm, with very similar
instrumentation, but different melodies.
That would correspond to a “ground bass” of a passacaglia or chaconne in
classical music.
The copyright applies to the score itself (separately
to words and music), and to a performance. But just as with facts in
non-fiction literature, actual chords and rhythms cannot be copyrighted.
Imagine if the underlying technique of Phillip Glass’s
music was “copyrighted”. It’s not so
different from the effective use of repetition with original rhythms in the
scherzos or some symphonies, from Beethoven to Bruckner.
Imagine, furthermore, that the opening theme of the
Mahler Third is viewed as “stolen” from the heroic theme of the Finale of the
Brahms First, which itself comes from Beethoven’s Ninth.
Furthermore, the opening of Bruckner’s Third Symphony
is based on the opening of the Beethoven Ninth. And the reconstructed Finale
versions (now gaining authenticity) of the Bruckner Ninth usually take the
Bruckner Third, Seventh, and Beethoven Ninth opening and put them together for
one “cathedral” effect. How would
artists offering “completions” of various works (or “recompositions”) protect
themselves from litigation?
Vox has a detailed analysis of the jury ruling by
Kelsey McKinney here.
“Who sampled whom” analyzes Thicke against DMV, Detox,
Vicky Vox and Belli. Belli, here.
The New York Times has an article by litigating attorney Richard S. Busch, by Beb Sisario, link here. The attorney says that musicians don't like to sue record companies because they fear blackballing.
Update: March 19
Ars Technica reports (Megan Guess) that the Gaye family has asked the judge to enjoin sales or distribution of the infringing "Blurred Lines" until royalty payments are made, link here, Also, the original work was created before a change in copyright law in 1977.
The New York Times has an article by litigating attorney Richard S. Busch, by Beb Sisario, link here. The attorney says that musicians don't like to sue record companies because they fear blackballing.
Update: March 19
Ars Technica reports (Megan Guess) that the Gaye family has asked the judge to enjoin sales or distribution of the infringing "Blurred Lines" until royalty payments are made, link here, Also, the original work was created before a change in copyright law in 1977.
Update: March 21
Here is a New York Times review (by Anthony Tommasini) of a concert by David Kaplan on adaptations from Schumann, comparing the classical world to popular in the discussion, as to how copyright is viewed. I'll try to find more details on this later, as I was not in NYC to attend this.
Saturday, March 14, 2015
Open Code project now all on third party companies
Even big companies that can do everything sometimes
withdraw and allow third parties to take the lead. Google has announced it is withdrawing from
Open Code for most purposes, suddenly announcing there would be no new
projects; then making the project
read-only in August and closing in March of 2016. Google says that GitHub and
Bitbucket now provide better platforms and encourages remaining users to
migrate with tools. It says most
legitimate open code users have done this already, leaving them with abusers. Google’s announcement is here. There has been some anger on Twitter
(particularly from people attending SXSW
in Austin right now), but the reactions don’t seem well justified.
Google has pulled the plug on other services, like
iGoogle in November 2013, but with considerable notice. In more recent times,
Google seems to making notices more abruptly, like with the Blogger porn issue
(Feb. 26) which it largely deferred.
Even very large companies find it is better not to
tackle everything, Apple extends its
iMovie with FinalCutPro, which is a staple in the film industry. But it does not do this with iTunes, for
example; it is perfectly content to let
Avid keep hold of making music composition software work well in both Mac and
PC environments.
AOL had a precursor of blogging software, called
Hometown AOL, which it had opened in 1996, and I was an early user. AOL withdrew from offering it to accounts in
2007, allowing users to export to Blogger.
I often wonder how the business models for these
companies really can work. I don’t do a
lot of stull to generate income for anyone, and I am minimally receptive to ads
(although I have my favorites, like a Walt Disney World water ride commercial,
or a particular Audi short film). Could
“free service” platforms like Blogger suddenly pull the plug, or be much more
restrictive on the quality of visits (as from analytics)? I wonder.
I still think it would be a good idea for Google to offer hosting
contracts (beyond Picasa photos), or be much more public about third-party
companies that it works with on hosting contracts, in order to provide more
structured support for content developers.
This seems clear enough with Wordpress and some companies that
specialize in hosting it, like BlueHost.
Open Code and Open Source should is not the same as Open Access. I’m seeing more about this latter problem in
Jack Andraka’s book “Breakthrough” which I will review soon.
By the way. Julia Belluz has a piece on peer review
and science journals to pass along on Vox, here.
Friday, March 13, 2015
Was the racist rant, at OU, protected by the First Amendment when posted? Was the expulsion of the students constitutional?
Did the University of Oklahoma, though the actions of
president David Boren, violated the first amendment rights of two students by
expelling them? It’s noteworthy that the
expulsion letters provide for a mechanism for repeal
Matt Pearce writes, “probably” in the Los Angeles
Times, here. There are similar pieces in Time,
Kfor, and the Washington Post (column by Eugene Volokh here ).
My take is, maybe.
First, the speech was not protected if it made a
direct threat, or was part of a conspiracy to commit and illegal act. The reference to hanging or lynching might be
perceived as crossing that line. There
is a documentary film, “American Lynching”, by the late Gode Davis, which is
not completed. If it were available, I
wonder if it would affect the debate. I have a Wordpress posting on the
progress of this film, Feb. 6, 2014 here. Of course, however, one could also say that if
the students’ chant actually conveyed a threat online, they could be prosecuted
(or the poster could).
Second, is the issue of conflating speech with
“conduct”. Where did we see this done
before? We saw it in the early days of
the debate over gays in the military, after President Clinton took office in
1993, leading to the “Don’t Ask, Don’t Tell” policy. In my first book (“Do Ask Do Tell I”) I had
even supported the idea that speech in closed spaces could need more regulation
(the whole “White House Letter” from 1993).
Even though OU is a public university it has to deal
with the fact that it has a somewhat “closed” environment where it needs to
restrain some conduct in order to protect a learning environment. O its face, that sounds reasonable, up to a
point.
There is also a question that the offense came from
private postings on private social media accounts (or it could have happened
with shared or sole web hosting). Yet,
the whole point of many postings is to go public, so the speaker has to take
some responsibility for the likelihood that the contents will be known and
active in that space (the campus). This
has led to an area I have called “conflict of interest” in other discussions. For
example, persons who have authority over others in the workplace or classroom
have to be accountable for the idea that their public speech could create a
hostile environment. But that might not
apply to undergraduate college students.
In at least two major episodes of my life, there were
significant consequences for my speech.
In 1961, I was “expelled” from William and Mary after telling the Dean
of Men, in a closed meeting, that I viewed myself as a “latent
homosexual”. That should have been
protected speech, by modern standards.
In 2005, I was removed from a substitute teaching
assignment (with the confluence of a lot of coincidences and complications)
after a fictitious screenplay I had posted, about a sub, resembling me,
allowing himself to be “seduced” by a student, came to the attention of a
school. (It’s covered here July 27,
2007). Since this was a public school system, was
that protected speech? If it could be
construed to have the “purpose” of goading students into actually trying it
(since it didn’t have another apparent commercial purpose), that could be an
issue, and a dangerous one, but that’s a stretch. Was it “offensive” to teachers? Possibly in that it suggested also that any
teacher could get set up (like in the 2003 Lifetime film “Student Seduction”),
but maybe that is something that should be said. Did I have the proper “standing” to post
this, or did it create some kind of conflict of interest? I wasn’t in a position to grade students, so
that gets into the “implicit content” problem.
As far as closing the fraternity, the University's case seems much stronger. It is under some obligations under a Civil Rights Act not to provide a discriminatory environment. But the idea that individual undergraduate students played a leadership role in creating a hostile environment legally seems like a stretch, when it comes to expulsion. But the University may be right in acting quickly and then offering a willingness to answer questions later.
As far as closing the fraternity, the University's case seems much stronger. It is under some obligations under a Civil Rights Act not to provide a discriminatory environment. But the idea that individual undergraduate students played a leadership role in creating a hostile environment legally seems like a stretch, when it comes to expulsion. But the University may be right in acting quickly and then offering a willingness to answer questions later.
So there is a lot going on here, legally
speaking. I wonder what the Legal Guys will
say on CNN Saturday. But any students publicly involved, expelled or not, will have to live with their "online reputations" for a long time. And I helped contribute to that circumstance years ago.
Tuesday, March 10, 2015
When do "you" as a speaker really care about "your" readers?
On March 2, I reviewed (on my Drama blog) a
performance of a particular opera by Richard Strauss, “Guntram”, a
middle-of-the-road effort where Strauss wrote both the libretto and music. It is significant because Strauss seems to be
trying to make a grand statement about his own universe of morality. He deals with the limits of
self-actualization, vis the group one belongs to, and the need (sometimes) for
real sacrifice. Sometimes “it costs you
something.” (No, the title is not
“Gotham”.)
Recently, I purchased through Amazon an “instance” of “The
Libertarian Mind” (2015) by David Boaz.
The book is a major revision of his earlier “Libertarianism: A Primer”
(1997) and carries the curious subtitle “A Manifesto for Freedom”. I’m going to review it in detail on the Books
blog soon, and talk about the “literature” of libertarian books soon (as
opposed to “conservative” books) on a Wordpress blog. But, even starting to look at it now, it
provides another reference point for today’s little sermon.
Let’s turn focus on a New York Times article Sunday by
Michael Crawford, “The Cost of Paying Attention”, link here. Note that Crawford has also written recently
about the virtue of working with your hands, something my own father would have
extolled. Here Crawford writes about the
need for quiet and silence, and rest of the mind from the bombardment of
messages from the outside world.
Crawford’s concerns are not so much with the personal, as with the
plethora of commercials and trademark banners intruding everywhere, even in the
TSA security lines at the airport.
Every time I write a tweet, I have to ponder the
wisdom of sending it, given the followers I have, and similarly as it ports to
Facebook. With blog postings, followers
or friends aren’t so much an issue, as broadcast is the intention, but the
permissiveness of the self-publishing environment (most recently challenged two
weeks ago over the porn issue) renews or instantiates another question. The "culture" of social media does sometimes prod acting smart or clever, "on your own". Maybe this isn't always sending the right message. Do I care about the people in my audience, as
people?
Of course, I “care” about many of the followers and
friends; among them are people I can
definitely imagine working with in the future, especially on film or other
media projects. And I “care” about some
persons in the real world whom I actually see but who prefer to keep a lower
profile online for now. I have my own
mental “list”. But what about “everyone
else”, whom “I” am piercing with jabs about critical thinking, trying to
underline the flaws in their partisan behavior?
Do I “care” about the people who may hear my prattle or chatter and
become indignant about their burdens which I get out of?
Ever since becoming published in the late 1990s, and
especially after 9/11 and then “retirement”, I find myself challenged by
approaches from door knockers (literally and not) from those who want me to
renounce “objectivity” and go pimp their causes, and even take care of their
kids and people. I’m approached by the
same people who wouldn’t have wanted me around in the past. There’s a turnabount. Now, I see my own aloofness, and
indifference. Yes, I don’t like to be
barged in on, don’t like to be approached randomly in public, or take
telemarketing calls now – even as I once worked an “interim” job doing just
that “for a good cause”.
No, it’s hard to rejoin (or just join) a world for
which I have been an alien observer, recording karma and taking notes (although
not so much taking names). It’s hard to
be a “helping hand” for some other new parent when I’ve never engaged in the
act that could make me one myself.
Eldercare, as I’ve documented, played a part in all of this table
rotation. My life offered a parade of little events, each of which might build a Sunday School lesson or even children's story, but it's not clear what they all add up to, beyond the general area of karma, and transcending self-hood.
Let me come back to David Boaz’s arguments for
libertarianism. I’ve posed them myself –
like absolute responsibility for the self in the Introduction of my 1997
book. I’ve pondered (and enforced) self-ownership
– personal autonomy or individual sovereignty.
He explains it very simply.
He also reduces morality to harmlessness. You’re free
to do what you want, as long as you don’t interfere with anyone else’s ability
to do the same. Of course, you have to earn your keep. So, you’ve got to provide services or goods
(either in a conventional workplace or on your own) that real people actually
need (or at least want, and there can be a difference) and will pay for in a
free market. That part gets dicey; I’ve often said that employment recessions
are part of a “free market cultural revolution” that does indeed reinforce
“paying your dues” sometimes.
There are two or three areas where other moral sense
(religious or not) creates tension with hyper-individualism. One of these areas is that we don’t start in
the same place in line in life. We wind
up depending on the sacrifice of others in ways we don’t always see.
A second area has to do with the value we place on the
lives of others just because they are human.
That can lead to some paradoxes, if you think about it. If your right to refuse connection to another
person “in need” is absolute, that setup can drag a whole culture to a new kind
of totalitarianism, because it cannot afford to deal with “second handers” (to
borrow from Ayn Rand). This can lead to
new forms of extremism (and not the good kind that Barry Goldwater – “shooting
straight” – liked).
Along with this is the whole admittedly ambiguous
nature of one’s moral obligations to future generations, apart from the obvious
responsibility for the specific children one has sired (or agreed to
raise). This goes beyond the binary
aspect of a decision to have or not have children. But sustainability, as a moral matter, has
its own limits. The Neanderthals
sustained themselves for 100,000 years, but not forever, because they didn’t
innovate enough.
Libertarianism discourages “public” solutions to
problems that come with essential inequality, where fortune affects or precedes
performance. Is that just left to “family”? That’s another area of tension – taking
care of “your own” compared to reaching out into the community and beyond (as
churches and Tolkien call “fellowship”). Boaz offers some interesting perspectives on
how to deal with poverty and inequality, however. He mentions the idea of fraternal communities
as sometimes more effective than open markets.
For example, it used to be common for specific groups of people to form
their own insurance companies and banks (long before modern corporate
merging). Yet, “fraternal companies” as
employers can set up their own possibilities for “conflict of interest” as I
have detailed before.
There is a challenging post on a site called “Everyday
Feminism” by Sara Whitestone about how to respond to panhandlers, link here. I think that it generalizes or extends (beyond compassion) to
volunteerism and helping others in a lot of other areas. I wouldn’t be comfortable with living up to
some of this now.(I also think she extends the idea of "privilege" a bit.) Like, I’ll acknowledge
someone playing music or offering artwork, sometimes, because that starts a
legitimate conversation, and I’ll be comfortable with a donation. (There’s one keyboard musician near the
Smithsonian Metro exit particularly good at this, and, yes, you can hear Mozart
in the New York City subway.) I think
she’s talking about something more fundamental than this. Again, I have an issue with gratuitous
conversations (“How are you today?”) or with being recruited to anything (and
nobody pimped the Ice Bucket on me). And
I don’t like to approach others for “money” for “other people’s causes” even if
I get the idea of need.
Yet, I have to agree with another libertarian author,
Charles Murray (“Coming Apart”) that our social connectedness, in a real world
level, is now very unpredictable and “quantum” in nature. We "belong" less than we used to.
So, returning to Strauss’s opera: how a “divergent” like me “should” behave
becomes a moral question. It’s not much
about making laws. But is about matter
like responding to coercion or aggression, when people have become indignant or
declared themselves as enemies. It’s
also about what really works in a practical way with people you really want to
work with. But how “you” react to those
who knock is a moral matter, too.
One other thing about "getting involved". The French understand it better than the English and Americans. The French language has personal and impersonal forms of "you" (that is "tu" and "vous"). In English, it's hard to make the distinction with context alone.
Above, Ian Breckenridge-Jackson: "Cancun Can Wait" (Ted Talk). The video is actually called "Getting More Than We Give" and considers our debt for "volunteer tourism" -- rather turning volunteerism into being like internship or a short-term job, a graduation requirement, a dissertation experiment. It's a lot more personal than that.
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