June 2008 Archives

The New York Times reports on the use of search engine data to establish community standards for web sites, What’s Obscene? Google Could Have an Answer: "In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like ‘orgy’ than for ‘apple pie’ or ‘watermelon.’"

The Times also reports that most of the buyers of Grand Theft Auto found it acceptable that the violent, mature-rated video game include hidden sex scenes and chose not to file for a claim in a class action settlement. Hidden Sex Scenes Draw Ho-Hum, Except From Lawyers: "Lawyers who sued the makers of the video game Grand Theft Auto: San Andreas profess to be shocked, simply shocked, that few people who bought the game were offended by sex scenes buried in its software. Any buyer upset about hidden sex in the violent game could file a claim under a settlement the lawyers struck with the game’s maker, Take-Two Interactive. Of the millions of people who bought the San Andreas version after its release in 2004, exactly 2,676 filed claims."

And, not really related, the state of Kentucky will filter blogs on its computers under the same standard it treats all other websites. Greg Beck writes at Internet Cases, Kentucky settles banned blogger’s First Amendment challenge to Internet filtering policy: "Political blogger Mark Nickolas yesterday settled his lawsuit against Kentucky, in which he challenged the state’s policy of blocking blogs on state-owned computers. The settlement provides that Kentucky will no longer target websites for restriction just because they are blogs, and will instead treat them in the same way it treats other websites with similar content. In other words, classifying a website as a ‘blog’ is no longer a good enough reason to ban a site on the state’s computers."

Value-Added Piracy

NPR reports on the Chinese groups using P2P to distribute subtitled versions of American TV shows: Chinese Fans Follow American TV Online - for Free: "Han says they can download untranslated versions of the American shows from the peer-to-peer file-sharing site BitTorrent as soon as 10 minutes after new episodes air in the U.S. Then they find closed-captioned scripts in English; those also turn up online shortly after the show airs. The captioned scripts are the raw material. Han says they take those scripts and turn them into creative Chinese translations."

Previously: Perestroika by Piracy

George Carlin

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The New York Times reports on the passing of George Carlin, George Carlin, 71, Irreverent Standup Comedian: "Mr. Carlin was hailed for his poignant observations on the absurdities of everyday life in routines like 'Seven Words You Can Never Say on Television.'"

A broadcast of the "Seven Words" routine brought to the Supreme Court the question of whether the First Amendment allows the FCC to regulate broadcasts of speech that is merely indecent. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

David Oxenford, Broadcast Law Blog, George Carlin - Writing the Indeceny Rules the FCC Never Did: "Perhaps the greatest misimpression of the Carlin routine is the widely held belief that there are in fact Seven Dirty Words that you can never say on the air. In fact, that is not and has never been the FCC's holding. In fact, until recently, there were no words that were specifically banned on the air - all had to be evaluated by context."

New York Times, The Feisty Station That Defended Carlin’s ‘Seven Words’ Looks Back: "In a 1978 milestone in the station’s contentious and unruly history, WBAI lost a 5-to-4 Supreme Court decision that to this day has defined the power of the government over broadcast material it calls indecent."

Preventing Photography

Bruce Schneier, The War on Photography: "What is it with photographers these days? Are they really all terrorists, or does everyone just think they are?
Given that real terrorists, and even wannabe terrorists, don't seem to photograph anything, why is it such pervasive conventional wisdom that terrorists photograph their targets? Why are our fears so great that we have no choice but to be suspicious of any photographer?"

Serious Eats, On Banning Photography from Restaurants: "It's not hard to relate to Chang's position on Ko; from the minute the place opened, it was overrun by camera-toting food-porn obsessives wanting to capture the joy of a meal at the best new restaurant in the city. But if you ask me, an outright ban is entirely unfair. No photos of the chefs? Sure. No photos of other people in the restaurant? Well, of course. Don't use a flash? Naturally, that's rude."

More Little Orphan Works

Here are some more links to pieces discussing the orphan works problem in general along with specific criticisms of the Orphan Works Act of 2008.

Gigi Sohn, Public Knowledge, The Orphan Works Act of 2008: Copyright Reform Takes Its First Steps: "Why do we have all of these orphan works in the first place? We have them because starting in 1978, copyrighted works no longer needed to be registered to get the full protection of copyright law. The consequence of this automatic copyright has been that it has become very difficult to find who owns the rights to a particular work. Even when works are registered, sometimes the owner is a company that goes out of business, or an individual who dies, or sometimes the registration is never updated. If you are a person or institution that wants to use a work under copyright but cannot find the owner, even after a thorough search, you are out of luck — current copyright law provides the same onerous damages whether you are a good faith actor or a pirate. And these damages can range anywhere from $750 to $150,000 per infringement. So nobody takes the risk that the copyright owner will show up and drag him to court. As a result, orphan works are relegated to the dustbin of our culture."

Nancy Prager, Fundamentals of Copyright and the Problem with Lost Owners: unintended consequences: "Unfortunately, the proposed bill fails to offer the original creators of a work any protections related to: 1) the right to make decisions about whether their work can be used; 2) payment; and 3) attribution. In fact, the legislation — which doesn’t even mention creators — could override contract terms that have been spelled out between a creator and a record label."

Carolyn Wright, Photo Attorney, They Still Don't Get It: "While it is true that OW does not make registration with the private registries mandatory, registration will be required if photographers want the same protection for their works as they have now. Specifically, for those photographers who register their photos with the Copyright Office, they also would have to register with the private registeries to rebuff a potential OW defense and thus be eligible for statutory damages, the primary weapon that creatives have to fight infringements."

Donn Zaretsky, The Art Law Blog, On Not Getting It: "There are reasonable grounds for opposing the legislation, and I've discussed some of them here before. But it seems pretty clear to me that the creation of a new private registry that would make it easier to find authors who want to be found is simply not one of them."

Susan Scafidi, Counterfeit Chic, Orphan Works and the Adoption Process: "While many agree that the basic idea has merit, the reality is somewhat more complicated.  After almost two decades of telling creators that they don't have to do anything to receive protection, is it fair to penalize them for not showing up in the Copyright Office's searchable records?  What's a 'diligent effort' to find a copyright holder?  What's 'reasonable compensation' if the copyright holder turns up later?  And -- perhaps most relevant to the apparel industry -- what about the difference between the kinds of works on which it's easy to display copyright notice (a book, for example) and the kinds of works that often don't bear the author's name (like a printed textile that's been cut and sewn into a garment)?"

Dan Lewis suggests going even further and that online publishers should have bear the burden of taking an action to maintain copyright in abandoned works, Copyright and the Duty to Maintain "In the digital age, with content available over the Web, why put all the burden on the subsequent user of the content? Instead, let’s shift the burden on the rights-holder to, in the very least, maintain his content and/or contact information"

Here's an Ask Metafilter post looking for assistance with a real-life example of an orphan work issue-- a willing licensee unable to find the copyright owner in order to obtain a license, I can has copyright permission?: "I am now in the position where I would like to obtain permission to reuse an image, but am having a hell of a time tracking down the copyright owner."

Previously: Working on Orphan Works


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Glenn Greenwald, Salon.com, George Bush's latest powers, courtesy of the Democratic Congress: "I've now just read a copy of the final 'compromise' bill. It's even worse than expected. When you read it, it's actually hard to believe that the Congress is about to make this into our law. Then again, this is the same Congress that abolished habeas corpus with the Military Commissions Act, and legalized George Bush's warrantless eavesdropping program with the 'Protect America Act,' so it shouldn't be hard to believe at all. Seeing the words in print, though, adds a new dimension to appreciating just how corrupt and repugnant this is."

Users of text messaging services have a Fourth Amendment reasonable expectation of privacy in the contents of the text messages stored on the service provider's network. Quon v. Arch Wireless Operating Company (9th Cir. Jun. 18, 2008). Analysis from Orin Kerr.

What's the hottest stop on the indie rock touring circuit? It might be the halls of Congress. From The A.V. Club, Random Rules: Jonathan Coulton: "I actually ran into OK Go in the basement of the Senate building in Washington D.C. I was being walked around to various congressional staffers to talk about digital freedom. I was there on behalf of the Digital Freedom Campaign, and they walked me around. We had a bunch of meetings, talked to Congresspeople about what they could do to keep the bits flowing as easily as possible, and why it was important to independent musicians like me. OK Go was there because they were also speaking as part of some hearing, and I ran into them in the basement of the Senate building"

Michael Piatek, Tadayoshi Kohno, Arvind Krishnamurthy, Challenges and Directions for Monitoring P2P File Sharing Networks or Why My Printer Received a DMCA Takedown Notice: "The focus of this paper is to examine the tension between P2P users and enforcement agencies and the challenges raised by an escalating arms race between them. We ground this work in an experimental analysis of the methods by which copyright holders currently monitor the BitTorrent file sharing network. Our work is based on measurements of tens of thousands of BitTorrent objects. A unique feature of our approach is that we intentionally try to receive DMCA takedown notices, and we use these notices to drive our analysis."

Freedom to Tinker: Study Shows DMCA Takedowns Based on Inconclusive Evidence: "The existence of erroneous takedowns is not news — anybody who has seen the current system operating knows that some notices are just wrong, for example referring to unused IP addresses. Somewhat more interesting is the result that it is pretty easy to ‘frame’ somebody so they get takedown notices despite doing nothing wrong. Given this, it would be a mistake to infer a pattern of infringement based solely on the existence of takedown notices. More evidence should be required before imposing punishment."

Catherine Rampell, Chronicle of Higher Education: How It Does It: The RIAA Explains How It Catches Alleged Music Pirates: "Here's how the process works: The RIAA maintains a list of songs whose distribution rights are owned by the RIAA's member organizations. It has given that list to Media Sentry, a company it hired to search for online pirates. That company runs copies of the LimeWire program and performs searches for those copyrighted song titles, one by one, to see if any are being offered by people whose computers are connected to the LimeWire network. For popular songs, the search can turn up dozens, if not hundreds, of hits. A search on Madonna's latest release, '4 Minutes,' turned up more than a hundred users trading various copies of the song."

Joseph Abboud: person v. trademark

JA Apparel Corp. v. Abboud (SDNY, June 5, 2008)

Ron Coleman, Likelihood of Confusion, Mad Abboud you: "It’s worth taking a look at because just reading the bare-bones fact pattern of it above, this doesn’t look like a hard case. But perhaps the juicy part of it slowed things down — such as how Abboud, not unsurprisingly for those creative types, showed up at JA Apparel after they’d bought his name lock and stock and barrel (more below) along with his clothing line and promptly found himself ‘unable’ to work with the company due to, yup, creative differences."

Rebecca Tushnet, 43(B)log, jaz hands: Joseph Abboud loses name to company he sold: "In a long and thorough decision, the magistrate judge concluded that noted fashion designer Joseph Abboud had transferred all rights to use his name in a commercial manner to JA Apparel, a menswear label he launched in 1987. He sold the label in 2000 for $65.5 million, along with the associated names, trademarks, etc., including ‘Joseph Abboud,’ ‘designed by Joseph Abboud, ‘JOE,’ ‘JA,’ and similar or derivative terms."

Wall Street Journal, Abboud Loses Trademark Case: "A federal judge ruled that menswear designer Joseph Abboud, who sold his trademark and later left the company that owns it, can't use his name to promote a new line he calls 'jaz."

On the nature of the internet

Here are a couple of articles (and a response) about the history, impact and future of the internet and WWW.

Vanity Fair, How the Web Was Won, "Vanity Fair set out to do something that has never been done: to compile an oral history, speaking with scores of people involved in every stage of the Internet’s development, from the 1950s onward. From more than 100 hours of interviews we have distilled and edited their words into a concise narrative of the past half-century—a history of the Internet in the words of the people who made it."

Nick Carr gets bored easily, blames the web in general and Google in particular. Is Google Making Us Stupid? "Over the past few years I’ve had an uncomfortable sense that someone, or something, has been tinkering with my brain, remapping the neural circuitry, reprogramming the memory. My mind isn’t going—so far as I can tell—but it’s changing. I’m not thinking the way I used to think. I can feel it most strongly when I’m reading. Immersing myself in a book or a lengthy article used to be easy. My mind would get caught up in the narrative or the turns of the argument, and I’d spend hours strolling through long stretches of prose. That’s rarely the case anymore. Now my concentration often starts to drift after two or three pages."

James Grimmelmann, The Laboratorium, Is Google Making Us Insipid?: "Overall, it’s a weak piece. While it’s better-written and slightly more convincing than other entries in the genre of ‘warnings about Internet cognition,’ there’s nothing in it that I haven’t seen before. He shuffles the deck into a different order, but it’s still the same old cards."

Cultivating Online Personas

In New York Magazine, Rex Sorgatz lays out a few simple steps for finding internet fame, The Microfame Game and The New Rules of Internet Celebrity -- New York Magazine: "It's easy to be cynical about this new class of celebrity. The lines between empowerment and self-promotion, between sharing and oversharing, between community and cliques, can be blurry. You can judge for yourself whether the following microcelebs represent naked ambition, talent justly discovered, or genius marketing. The point is that renown is no longer the exclusive province of a select few. Nano-celebrity is there for the taking, if you really want it."

While some personalities seek out internet fame, others have it unwittingly thrust upon them.

At Concurring Opinions, Deven Desai asks, Do We Need an Internet Ed. Class?
"Internet Ed. at an early stage might address the possible generation gap in understanding what is privacy and how the Internet works. Like driving, using the Internet can open up tremendous possibilities for fun and for work. Like driving, irresponsible or uninformed Internet use can lead to undesired consequences. Like driving, horror stories of how a picture from a drunken party ruined someone’s job prospects may not deter irresponsible Internet behaviors across the board. Still, by setting out the way in which irresponsible or immature behaviors such as sharing too much information about one’s personal life, not checking about how a site uses personal financial information, and childish rants can affect one’s life, people would have some sense of the possible repercussions of their acts."

I agree that education about how to avoid undesired online notoriety (or maintaining personal privacy) is important, but only half of an "internet ed" class-- the other half is on information literacy-- the skills of finding reputable sources of information and assessing the quality of sources and channels. This includes not only sources of academic research, but also e-commerce sites and social networking sites.

Open Access to Statutes

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James Grimmelmann wrote a nice primer on copyright, statutes and open access, and how publishing statutes openly online benefits democracy: Copyright, Technology, and Access to the Law: "Recently, the state of Oregon has used copyright law to threaten people who were publishing its laws online. Can they really do that? More to the point, why would they? This essay will put the Oregon fracas in historical context, and explain the public policies at stake. Ultimately, it’ll try to convince you that Oregon’s demands, while wrong, aren’t unprecedented. People have been claiming copyright in ‘the law’ for a long time, and at times they’ve been able to make a halfway convincing case for it. While there are good answers to these arguments, they’re not always the first ones that come to hand. It’s really only the arrival of the Internet that genuinely puts the long-standing goal of free and unencumbered access to the law within our grasp."

Info/Law notes that a community of users is almost done placing the House Report on the 1976 Copyright Act online for easier public access to public information. An Open Access Success Story: "Working in irregular bursts over the last eight months, volunteers at the English-language Wikisource project (a sister site of the much better known Wikipedia encyclopedia) have proofread all 370 page scans from the original House report, and the results have been stitched together to form a single document: Copyright Law Revision (House Report No. 94-1476). As the accompanying color-coded chart reveals, most pages of the report have been proofread by at least two different users, and the rest should be finished within a few weeks if current trends continue."

Of course, reading through statutes or legislative history on the web doesn't have the same feel as reading it on microfiche in a dusty corner in the basement of a law library, but nostalgia alone provides no counter to the public good of having this material online for free access. It also demonstrates the advantages that the internet has for democratic principles.

Update (6/20). Justia reports, Oregon decides not to enforce any copyright claims on the Oregon Revised Statutes: "Oregon's Legislative Counsel Committee had a meeting this morning to discuss the copyright claim on the Oregon Revised Statutes. After taking legal counsel from Dexter Johnson, talking with Karl Olson, Carl Malamud, three Oregon citizens and myself, they unanimously voted to not to enforce any copyright claims on the Oregon Revised Statutes."

Yesterday, New York Attorney General Andrew Cuomo announced an agreement with 3 national ISPs-- Verizon, Time Warner Cable and Sprint-- to block access to newsgroups and web sites distributing child pornography.

Press Release: Attorney General Cuomo Announces Unprecedented Deal With Nation’s Largest Internet Service Providers To Block Major Sources Of Child Pornography

An undercover investigation by the Attorney General’s office uncovered a major source of online child pornography known as “Newsgroups,” an online service not associated with websites. The Newsgroups act as online public bulletin boards where users can upload and download files. Users access Newsgroups through their Internet Service Providers. As part of the agreements, Verizon, Time Warner Cable, and Sprint will for the first time completely block access to all child porn Newsgroups.…

In addition to eliminating the Newsgroups, the ISPs have also agreed to purge their servers of all child pornography websites identified by the National Center for Missing & Exploited Children (“NCMEC”). NCMEC regularly reviews and updates its registry of these illegal sites to ensure the list reflects the current presence of such websites on the Internet.

Also yesterday, down at the other end of the New Jersey Turnpike in Philadelphia, the Third Circuit Court of Appeals once again heard oral arguments appealing the constitutionality of COPA, the Children Online Protection Act, which has been under review from federal courts since the Clinton Administration.

This argument was appealing last year's district court decision ACLU v. Gonzalez, No. 98-5591 (EDPA 2007). The most recent Supreme Court ruling was Ashcroft v. ACLU, 542 U.S. 656 (2004)

ACLU press release: ACLU Urges Court To Uphold Ban On Unconstitutional Censorship Law, "The American Civil Liberties Union is in court today, once again urging the courts to uphold a ban on a law that criminalizes constitutionally protected speech on the Internet. The Child Online Protection Act (COPA) would impose draconian criminal sanctions, with penalties of up to $50,000 per day and up to six months imprisonment, for online material acknowledged as protected for adults but deemed 'harmful to minors.'"

Here is various reporting and reactions on the NYAG agreement with ISPs:
New York Times, 3 Internet Providers Agree to Block Access to Child Pornography: "The move is part of a groundbreaking agreement with the New York attorney general, Andrew M. Cuomo, that will be formally announced on Tuesday as a significant step by leading companies to curtail access to child pornography. Many in the industry have previously resisted similar efforts, saying they could not be responsible for content online, given the decentralized and largely unmonitored nature of the Internet."

Declan McCullagh, News.com, N.Y. attorney general forces ISPs to curb Usenet access: "Time Warner Cable said it will cease to offer customers access to any Usenet newsgroups, a decision that will affect customers nationwide. Sprint said it would no longer offer any of the tens of thousands of alt.* Usenet newsgroups. Verizon's plan is to eliminate some 'fairly broad newsgroup areas.'"

Susan Crawford, Knowing less: "The announcement this morning in the Times that New York State AG Andrew Cuomo had reached an agreement with three US network operators (Verizon, Sprint, and Time Warner) about blocking child pornography was both less and more important than it appeared."

Derek Bambauer, Info/Law, Time Warner Gets It Wrong, and the French Follow the Model: "As more details emerge, though, I’m more skeptical about the plan. First, I held off assessing how narrow this filtering system would be (does it successfully block child porn, and only child porn?), since technical details are sketchy. But if the latest reports are to be believed, I’m ready to make a call: completely overbroad."

David Kravets, Threat Level from Wired.com, Communications Decency Act Tipping Under Cuomo Kid-Porn Accord: "It's commendable that New York Attorney General Andrew Cuomo wants to curb online child porn. But his accord with Verizon, Time Warner Cable and Sprint -- which more ISPs are likely to join -- opens up a Pandora's box of chilling side effects."

Nancy Prager, Reasonable Balance, Copyright is important, but other things much more so…: "While some might argue that the system that the Attorney General’s office has developed to identify content might catch content that is not in fact child pornography, New York’s action is a giant step in the right direction to protect children and to make the Internet a safe place for all."

Dan Radosh, Blogging about child pornography is a $20 billion industry: "You will be shocked to hear that I have some questions and comments about today's front page New York Times story on an agreement by Internet providers to block sites that disseminate kiddie porn. This isn't necessarily an indictment of the agreement or the article, just a reminder that these things have a way of not being discussed as thoroughly as they should be."

David Isenberg, isen.blog: Meet the newest Internet Governance Body: "This is, in my humble opinion, a populist wedge issue to undermine the Internet's neutrality. I wish the carriers would stay the &^%$ out of content."