Internet & Society Conference 2007

A plug for an amazing event June 1st at the Berkman Center for Internet & Society at Harvard University. This year's conference focuses on "UNIVERSITY – Knowledge Beyond Authority," revolving around the question, "What is the role of University in cyberspace?"

A dream team line-up will be at the event, including

Nicholas Negroponte, Chairman of One Laptop per Child Project;
Lewis Hyde, Berkman Center for Internet & Society Fellow and author of The Gift: Imagination and the Erotic Life of Property;
John Wilbanks, Executive Director, Science Commons

Please consider stopping by!

Pondering

Well, it's been a rollercoaster keeping up with all the developments in cyberlaw and intellectual property. Just receiving the BNA Newsletter was enough to saturate your average college student, let alone one who wished to chase down the various leads that the newsletter suggests.

My biggest reward for this semester has been the realization of the variety and nuance in cyberlaw. It is an engaging and evolving field, and very exciting in that it offers to many gray areas, areas that are bound to change as technical capabilities change alongside social practices and norms.

The internet offers an unparalleled venue in which to play out a multitude of human interaction. And as we have now learned of humans, interaction often entails conflict. And where conflict arises, the law steps in. This legal intervention has been particularly enchanting for me. How can we modify the law to better serve the people using it? How do we adapt legal conventions to fit emerging technologies? Cyberlaw is quite a multifaceted field, and I am happy to have waded through some of its many topics.

Diggers: The Power of a Crowd

Recently there has been quite a flurry of activity on Digg.com, an internet site aggregating page rankings and summarizing links. A situation arose in which an encryption key used in HD-DVD and Blu-Ray anti-copying technology was posted on numerous pages. Digg.com received several cease-and-desist letters, and made efforts to remove links to the encryption code.

Diggers rioted.

They furiously posted about the rights of users to display and link the information, and they protested the lengths in which the content industries have been overzealous in their IP protection. Digg.com responded to the posts and has decided to allow the encryption code to remain on the site. They claim that they would rather go down fighting than cave in to censorship.

As for the encryption code, it goes down in cyberhistory. You can even buy the T-shirt:

I WANT MY HD-DVD 09-f9-11-02-9d-74 e3-5b-d8-41-5..

MIT 5

MIT recently hosted an incredibly successful conference on Creativity, Ownership, and Collaboration in the Digital Age. As part of their bi-annual Media in Transition event, MIT gathered an impressive group of people to discuss various aspects of digital media, authorship, intellectual property, and similar subjects. Wendy Gordon was in attendance as well, and her thoughts on fair use were poignant, esp when she noted that today's IP pactices are a cylce of Lather. Rinse. Repeat: 1) increased risk aversion for both users and producers, 2) More licensing, 3) More judicial intervention...leading of course back to increased risk aversion...

Here's a sampling of their agenda, which impressed me by its attention to legal aspects of the digital age, specifically copyright law:

• Copyright, Fair Use and the Cultural Commons

Hal Abelson, MIT
Pat Aufderheide, American University
Wendy Gordon, Boston University
Gordon Quinn, Kartemquin Films
Moderator: William Uricchio, MIT

• Second Life

Burcu Bakioglu, Hacking and Griefing as Acts that Create Performative Narratives in Second Life
Jeffrey Bardzell, Creativity, HCI and Fashion Design in Second Life
Brent Britton, Virtual Ownership
Mary Hopper, The Knowledge Gates to Second Life
Moderator: Alice J. Robison

• Copyright 2: Politics and Ethics

Giovanni Boccia Artieri, Fabio Giglietto, Luca Rossi, Ownership in the Digital Age: A Sociological Approach
Dion Dennis, Mapping the Digital Prohibition Movement
John McMurria, Compulsory Licensing and the Collective Ethics of Creative Compensation Adejoke Oyewunmi, Exploitation of Traditional Cultural Knowledge in Contemporary Societies
Moderator: Candis Callison

Copyright 5: DIY Copyright Reform: How to Liberate Fair Use for Tomorrow's Media Literacy Pat Aufderheide Renee Hobbs Moderator: Henry Jenkins

Broadcasting the Republican and Democratic Conventions

Lawrence Lessig has been a big advocate in working to convince both the Republican and Democratice National Conventions to broadcast their speeches, following the example of C-SPAN. An impressive group of advocates, from a range of platforms, has signed petitions to representatives of both parties. Yet it seems that the hugest hurdle is not necessiarly the parties, but actually MSNBC, who apparently regulates the use of their recorded debates. An exhaustiv, and extremely exessive and opressive list:

USAGE RULES FOR USE OF AUDIO OR VIDEO OF MSNBC MATERIAL RULES FOR “THE SOUTH CAROLINA DEMOCRATIC CANDIDATES DEBATE” FROM MSNBC:

(The following rules apply to all media organizations that are not part of NBC)

News organizations, including radio, network television, cable television and local television may use excerpts of"The South Carolina Democratic Candidates Debate" subject to the following restrictions (internet use is not permitted):

1. An unobstructed onscreen credit "MSNBC" must appear during each debate excerpt and remain on screen for the entire excerpt.

2. Each debate excerpt must be introduced with an audio credit to MSNBC.

3. No excerpt may air in any medium until the live debate concludes at 8:30 pm ET.

4. No more than a combined total of 2 minutes of excerpts may be chosen for use during the period from the end of the live debate (8:30 pm ET) until 1:00 am ET on Friday, April 27. After 1:00 am ET, Friday, April 27, a total of 10 minutes may be selected (including any excerpts aired before 1:00AM). The selected excerpts may air as often as desired but the total of excerpts chosen may not exceed the limits outlined.

5. No excerpts may be aired after 8:30 pm on Saturday, May 26th. Excerpts may not be archived. Any further use of excerpts is by express permission of MSNBC only.

6. All debate excerpts must be taped directly from MSNBC™s cablecast or obtained directly from MSNBC and may not be obtained from other sources, such as satellite or other forms of transmission. No portions of the live event not aired by MSNBC may be used.

A feed of MSNBC™s telecast of the debate will be provided (details below), additionally limited audio/video mults will be available on site in the media center.

Libel Case against Google and Wikipedia

Former Canadian Green Party campaign manager Wayne Crookes has filed a libel suit against content providers Google (Blogspot) and Wikipedia. He claims that these sites have hosted negative material about his person and have been the source of defamation.

Is this a free speech question? Blogspot is a blogging service, meaning that users are posting content. Similarly, Wikipedia is a content provider to which all users are free to edit. In both of these cases, neithre Google nor Wikipedia have made explicit attempts to defame Crookes. Instead, they are providing the framework for other users to make such comments.

The lawsuit should be filed, if at all, at individual posters and not to the service providers. If Canada has a similar law to the DMCA, then Google and Wikipedia should be safe. They had no means to know of the material on their servers, nor did they receive explicit requests to remove the material. Good luck, Crookes.

The European Digital Library

The EU is continuing its progress towards developing the European Digital Library, a networked collection of Europe's cultural works. One of the biggest obstacles facing further advancement has been copyright law. The EU Observer reported that part of the blockade has been cleared, and that the initiative is well on its way to digitalizing more texts. Interestingly, Google has been listed as a large broker in this deal, specifically in digitalizing orphaned works. Are they planning on extending their Google Books project to include works on the EDL? Equally curious is whether Google will receive ad revenue from searches conducted by its service. Has the EU sorted out a bigger deal with the internet company?

Fortunately several large libraries in the U.S. are in full support of digitalizing orphaned works. These works, which are still under copyright's protection but do not have a reachable holder, have for a long time been disenfranchised. Google's wide-scale scanning project has helped revitalize the use of orphaned works and has even generated interest in getting out-of-print books back into production.

Craigscrimes

An anonymous post on Craigslist has been the cause of quite some headache to a homeowner in Washington state. In response to a listing that literally declared, "Come and take what you want," truckloads of property were carried off, leaving the home stripped and its owner still in the dark.

This recent case is one of many "civil matters" that have facilitated by the online classified. The police have resolved to treat the incident outside of criminal courts, for reasons not clearly articulated. While many criminal offenses spurred by Craigslist have been put on trial, such as prostitution, drug dealing, and gambling, the open-house posting has not resulted in any criminal charges.

Why is that?

Well, fortunately the blame is not being pointed to the service provider. Coming down hard on Craigslist for facilitating the post would not be the proper solution. It would cripple the speed and openness of info exchange that we have come to expect from the internet. Online classified ads should be treated similarly to content hosting sites such as YouTube, where the service provider is not held responsible for content uploaded by individual users unless properly notified to remove it.

But in this case of invited burglary, who is responsible? Certainly the poster, who initiated the theft and provided information alerting users to the vulnerability of the house. A subpoena for the identity of the poster is thoroughly justified. They seem to me to be the true party at fault.

Google announces Gmail Paper

Google has broken the mold once again. In an industry-shaking maneuver, Google announced today that it will be the first email service provider to print, organize, and send its customers emails...for free. The service, called Gmail Paper, will be provided at no cost to users, other than the obligatory advertisements located discretely on the back of the printed pages.

Gone are the days of intangible internet archives, Google claims. Users can request as many printed emails as they wish. There will be no charge for shipping and handling.

What accounts for this generosity? Certainly Google must plan to make a profit off of Gmail Paper in some manner. Albeit the company's pledge to not be evil, one cannot help but feel uneasy when inspecting the gift horse. After all, the advertisements seem subtle enough, but what's to prevent snoopy employees or other prying eyes from reading the contents and selling the information to advertising firms, or worse, the government? Google offers no clear privacy policy.

Responses to Google's radical program range the gauntlet. The most provocative have come from a certain April Folery, and she insists that Gmail Paper will be a thriving and lucrative business model. We can expect Yahoo to follow suit.

Viacom is Sued

In an interesting twist to the thickening plot of Viacom vs YouTube, the EFF and Stanford's Center for Internet and Society have filed suit against Viacom, claiming that the media company falsly submitted a request to remove a video from YouTube.

The video that was removed was a production by MoveOn.org Civic Action and Brave New Films LLC, which included clips from "The Colbert Report," a show from Viacom's daughter company, Comedy Central. The makers of the video claim that their use was fair, and that Viacom incorrectly filed for the removal of the video.

The fair use doctrine stipulates that a copyrighted work may be used, so long as the portion used is small and that it does not harm the market for the copyrighted work, among others. The EFF and CIS maintain that video fell under the protection of fair use, and that it was inappropriate for Viacom to demand the removal of the video.

This side lawsuit brings up the interesting question of the role of DMCA for service providers, since the law does not rule in favor of the provider if they take too long to investigate the content upon receiving notice for its removal.

YouTube vs ThemTube

News Corp and NBC announced today that they will be launching their own video site, one that reviews say may rival YouTube, the video-sharing community now owned by Google, and the defendant in a huge copyright case against Viacom.

The new site by News Corp and NBC promises to give viewers what they want...for free. Sure, there will be the obligatory commerical, the annoying banner ads, and probably lots of cookies tracking views and user data, but it is a step towards progress when these Big Media heavyweights agree to release the content of shows like The Simpsons and Saturday Night Live online, on their own terms.

Only a few months ago tech-naysayers were scolding sites like YouTube and claiming the end of video streaming for copyrighted material. And here we have the News Corp/NBC site springing up. The tribe has spoken. The people want content, they want it online, and they want it for free. Now the media outlets have to adapt themselves to those demands.

The only real downside, in my opinion, in these new sanctioned forums, is that the platform for sharing user-produced content disappears. People like YouTube not just for the Jon Stewart clips, but also because they like to see videos of other users, from people like them. YouTube is as much about community as it is about a new format of television. Projects by News Corp and NBC seem to gloss over that fact.

Copyright: the Metaphysics of Law

Today, American copyright is an all-or-nothing, all-rights-reserved federal protection. The moment an “original work of authorship” is “fixed in any tangible medium of expression,”[1] its author receives an automatic claim to exclusive rights in that work. The duration of a single, “flesh-and-blood” author’s copyright is his entire life plus seventy years after his death. After that, the work passes into the public domain. Is this term too extreme?

Since its initial inception, the term of copyright’s protection has increased dramatically. In 1790, following the drafting of the Progress Clause of the United States Constitution, authors enjoyed fourteen years of federal protection in their published works. After that, they could renew their copyrights for a maximum fourteen more years. In those days, an author had to register his copyright by first submitting a printed title page of the work with a local court, then running a notice of publication in a newspaper within two months of publication, and finally placing a copy of the work with the Secretary of State within six months of publication.[2] Today, copyright is awarded without hassle or formality the moment a work achieves “fixity.” It seems that the arena of copyright, the law may indeed approach “what may be called the metaphysics of law,” a regulatory realm “where distinctions are, or at least may be, very subtle and refined, and sometimes, almost evanescent.”^[3]

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[1] United States Code Title 17 Chapter 1 Paragraph 102

[2] alice schreyer “copyright and books in nineteenth-century america” Getting the books out. p 123

[3] Folsom v Marsh, 9 Federal Case 342, 344 (C.C.D. Mass. 1841).

Holding Class in Cyberspace

I just wanted to post a few thoughts in response to the class we had last week online. I thought it turned out to be an interesting experiment that demonstrated the pros and cons of digital communication.

Pros:
People seemed less intimidated to contribute. Although at times questions became too numerous, I felt that the class on a whole was more involved in the conversation.

A degree of anonymity that I think may have allowed people to talk more freely about subjects such as .xxx sites.

The comfort of your own room. I usually travel 1 hr each way on the bus to class. Meeting online saved me a nice chunk of time.

Written transcript of the class. We could refer to it later if need be.



Cons:
People could be "present" in the room, but absent in the discussion. This is probably only a problem for the professor who has to take attendance. For the students, it's a nice way to the folks who want to be there to stay, and for those that don't care, to surf the net.

Tempo of the conversation could seem very rushed. Especially at the beginning, when questions flew at our guest.

Some people monopolize the conversation. There is no easy way "not to call on someone" online. If they want to say something, they will.

Harder to thread topics. I constantly felt like I was scattering and trying to figure out what response was to whom.

Overall, like I said, an interesting experiment. It had its perks, but I say will full conviction that I am glad that we meet regularly in person.

Cybersquatters

Our class last Wednesday mentioned a provoking term, coined during the domain name gold rush: cybersquatter. These people would "infringe" on the "territory" of other companies or individuals by staking out a claim of a certain domain name. They would buy mcdonalds.com or burgerking.com in anticipation of the site's eventual sale to their "rightful" namesake.

Now ordinarily we would call such foresight "wise," and perhaps in another era, such savvy individuals "investors." But modern intellectual property trends have shaped our understanding of ownership, trademarks, and the territoriality of the net. The law operates with the assumption that there is a rightful owner of a domain name, or more technically, the string of numbers that codes for a particular server.

Is it fair to allow the burger chain McDonald's to file for the name mcdonalds.com, plus any other variation of their choice? Is there a limit on trademark protection? Why have we foregone a frontier mentality in terms of the net? Or more important, why did we even conceive of the internet as territory to begin with?

Beyond the "Jukebox"

A response to George Will's Newsweek article.

George Will atempts to curb our enthusiasm for the latest round of technological innovation, the internet. His article serves to mute the triumphant cries by the technologically starry-eyed and to give perspective on the "real" impact of digital networks.

He misses the point.

Will opens his article by describing his daughter's AIM habits. He first approaches the "information revolution" culturally....and aptly. But when he proceeds to downplay the role of the internet by citing examples from modest tech investments or observing trends in brick-and-mortar industries, he changes the mode of his argument.

Information technologies of course have their economic impact. The cost of maintaining a website can be compared with that of a sprawling brick discounter. There are efficiencies to note and to criticize. But, in my opinion, the impact of the internet is beyond the "bottom line."

The internet is as much a cultural phenonmenon as an economic and technological one. In that sense, Will is right to call the internet a "jukebox." But the manner in which this jukebox operates is revolutionary, extending beyond mass media/pre-programming schedules from broadcasters and moving instead to user-produced content, user-regulated networks, and the infamous long tail.

Will should read Benkler's Wealth of Networks. He should attend a LINUX conference. He should compare a Wikipedia page to his print encyclopedia. Peer networks ARE something new, and they ARE something to be excited about.

Cyberland: a conversation about public vs private

James Boyle in "Shamans, Software, and Speelns" describes the role of the law as well as its rule as dependent, if not defined by, the division of "private" from "public" life. The liberal tradition glorifies the realm of the individual, the private citizen in civil society, entitled to private property and privacy. Yet an oftentimes conflicting tradition, that of American republicanism, claims that
a healthy, thriving democracy depends on an envigorated public sphere, where information flows freely, if not perfectly.

Difficulty arises from this public/private division where cyberlaw is concerned. This is due to the fact that the internet is about INFORMATION. The internet facilitates conversation and relationships, and the meat of those conversations is information. So cyberlaw must govern the exchange and access to information in its many forms. Yet how do we classify the "space" that merely a "consensual hallucination," merely a visual represenation of a network?

Boyle tells us that private law looks to return society to the status quo. Cases in private (civil) law are settled to keep things as they are; damages are decided according to income, etc. Public or criminal law concerns itself with a more egalitarian political community. It treats the involved parties as equals. This distinction is important in the dicourse of property. Information, as it is commonly understood in today's world, is property-like, when not property itself.

However, it is even more complicated than that. Property like a house or a TV is one thing. It is a finite, physical object. Yet the ownership of information is problematic. It is a horse of quite a different color. It can be either finite or infinite, a product or a process. It is a public good, and yet IP law treats it as privately owned. A poem, for example, takes material from the "commons," i.e. words, idioms, expressions, grammar, and converts it into something protectable as a new, privately-owned product. A case of appropriation from the commons. Yet if someone were to read the poem, they have, in an essence, a copy of that poem, either in their memory or stored on a computer somewhere. And in this sense, the poem (or information) is infinite. A million people could read that poem without diminishing the amount "owned" by its author.

This is just a ill-organized wandering through the troubles of IP theories, information exchange, cyberlaw. I am sure the private/public duality will be explored further!

Spacing Out -- what is cyberspace?

An interesting thought is how exactly we, as a society and as individual users, wish to govern this radically pervasive "space," the internet.

My first reaction is that "space" is a false term for the digital network. It was a term coined by William Gibson to describe his virutal world in his groundbreaking sci-fi/cyberpunk book, The Neuromancer. His passage reads as follows:

Cyberspace. A consensual hallucination experienced daily by billions of legitimate operators, in every nation, by children being taught mathematical concepts... A graphic representation of data abstracted from banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the nonspace of the mind, clusters and constellations of data. Like city lights, receding ...

His conception of cyberspace was of a representation of a data, a visual image that conveys the connections between nodes. Cyberspace in this sense is no space at all, but merely a representation of relationships.

For this reason, I believe a discussion of how we regulate and control cyberspace (by law, by behavior, by practice) must be informed by a knowledge of the relationships of the involved parties. Governing cyberspace is then governing relationship, be they human-human, human-machine, or machine-machine. Our laws should reflect this dynamic, and not attempt to draw up radically new measures for regulating some alternative, 4th dimension "space."