Recently in Internet Category

The Wall Street Journal reports that President-Elect Obama plans to nominate his technology adviser, Julius Genachowski, to chair the FCC. Genachowski Picked to Head FCC - WSJ.com: "During the campaign, Mr. Genachowski served as the top technology adviser to Mr. Obama, putting together a detailed technology and innovation plan that expressed support for open Internet or 'net neutrality' protections; media-ownership rules that encourage more diversity; and expansion of affordable broadband access across the country."

Over in Congress, Rep. Rick Boucher (D-VA) will chair the U.S. House Energy and Commerce Committee's Subcommittee on Communications, Technology and the Internet. In the 111th Congress, Rep. Boucher "will oversee the digital television transition and work toward reform of the federal universal service fund, promote broadband deployment and work to enable local governments to offer broadband in communities not fully served by commercial carriers."

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.

The Mass and The Personal

While the pre-Oscar crowds at Union Square sold out early evening showings of Best Picture nominees No Country for Old Men and There Will Be Blood, the crowd in the theater for U23D was fairly sparse.

Perhaps because it was in a regular theater rather than on the big IMAX screen, but unlike Bob Lefsetz, I found the 3D-ness underwhelming except for a few moments. Overall, the film seemed to be more intimate and less grand than the concert itself. I was disappointed that the camera was generally so close in on the band members and only rarely and ineffectively attempted to convey the size of the show. A couple of times, we looked out at the 60,000-odd people in the stadium from behind Larry's drum set, but it was too brief to get a sense of what it is like standing in front of that many people.

But while the show was great, and worthwhile seeing, even if the 3D was underwhelming, what I found most striking is just how well documented the show was, even without the professional camera crew. When the film showed Bono, the Edge and Adam out towards the audience, you could see many, if not most, of the audience taking photos or video with their cameras or cameraphones. Some of these videos are on the web.

Here are two fan-shot videos of Pride (in the Name of Love) from that show:

And here's the professionally filmed feed:

The Beastie Boys' fan shot concert film, Awesome: I Fuckin' Shot That is probably not a prototype for the future of all concert film, but it is interesting to see how many of the thousands of different impressions of a large concert get fixed and posted online.

And with an event that is broadcast worldwide, like the Academy Awards, the web is a way of seeing that event through different filters. I was dubious about the value of liveblogs of the Oscars. Unlike, say, today's FCC hearings at Harvard, the Oscars are pretty well broadcast. Liveblogging that is usually merely an exercise in self-indulgence.

But if you are writing about the impact of this event on a niche industry, then this kind of reporting adds a different kind of analysis. with his Inside the Marketer's Studio liveblog, David actually did something different, interesting and utlimately useful for his core readers in the search engine marketing field.

While the personal media takes on major events are no substitute for the official media coverage-- clips on YouTube don't compare to a 5-story tall Bono in surround sound-- but combining together enough personal media creates more context that can help to better understand, experience or frame an event.

While AT&T is considering helping large copyright owners police infringements on its network, Verizon. The NYT Bits Blog reports, Verizon Rejects Hollywood’s Call to Aid Piracy Fight. Tom Tauke, Verizon’s executive vice president for public affairs offers three reasons why ISPs have no incentive to monitoring for copyright infringements:

"1) The slippery slope. Once you start going down the path of looking at the information going down the network, there are many that want you to play the role of policeman. Stop illegal gambling offshore. Stop pornography. Stop a whole array of other kinds of activities that some may think inappropriate. 2) It opens up potential liability for failing to block copyrighted work. When you look back at the history of copyright legislation, there has been an effort by Hollywood to pin the liability for copyright violations on the network that transmits the material. It is no secret they think we have deeper pockets than others and we are easy-to-find targets. 3) Privacy. Anything we do has to balance the need of copyright protection with the desire of customers for privacy."

ISP Filtering

One of the big issues in tech and IP policy this year will be the role of ISPs. To what extent should they be common carries of information, enforcers of digital copyright, or delivery networks giving special priority to preferred media providers?

The NY Times published an AP report that the FCC will investigate complaints that Comcast blocks BitTorrent traffic on its networks, F.C.C. to Look at Complaints Comcast Interferes With Net: "The Federal Communications Commission will investigate complaints that Comcast actively interferes with Internet traffic as its subscribers try to share files online, the commission’s chairman, Kevin J. Martin, said Tuesday."

From another session at CES, the Times' Bits blog reports that AT&T is looking to act as an enforcement agent for copyright owners, AT&T and Other ISPs May Be Getting Ready to Filter

"'What we are already doing to address piracy hasn't been working. There’s no secret there,' said James Cicconi, senior vice president, external & legal affairs for AT&T.

Mr. Cicconi said that AT&T has been talking to technology companies, and members of the MPAA and RIAA, for the last six months about implementing digital fingerprinting techniques on the network level.

'We are very interested in a technology based solution and we think a network-based solution is the optimal way to approach this,' he said. 'We recognize we are not there yet but there are a lot of promising technologies. But we are having an open discussion with a number of content companies, including NBC Universal, to try to explore various technologies that are out there.'"

Reaction from David Isenberg, isen.blog: Konflating Kopyright and Kongestion: "The two issues should be separated. Network congestion has some very simple solutions."

Time Warner Telecom v. FCC

In Time Warner Telecom, Inc. v. FCC, the 3rd Circuit Court of Appeals ruled that the Commission's decision to classify wireline broadband as an information service was based on "a permissible interpretation of the Communications Act" with a "proper exercise of agency discretion."

"The petition under review arises from an order of the Federal Communications Commission ("FCC"), which substantially limits federal regulation of high-speed Internet access service provided over traditional telephone lines (referred to as "wireline broadband Internet access service"). The dispute centers, in large part, on the FCC's decision to relieve telephone companies of decades-old regulations that required them to grant competing Internet service providers nondiscriminatory access to their wirelines in order to reach consumers. The FCC contends that these regulations "imposed significant costs" on telephone companies, "thereby impeding innovation and investment in new broadband technologies and services." (FCC Br. at 43.) Presumably, the FCC’s order now allows telephone companies to enter into individually negotiated arrangements with entities that seek access to their broadband wireline facilities.

"Petitioners, who are independent Internet service providers, competing telecommunications service providers, cable modem providers, and various public interest organizations, argue that the FCC’s order allows telephone companies to deny competitors access to their wirelines, thereby resulting in decreased competition and consumer choice in the market for broadband Internet service. For the reasons stated below, we conclude that the FCC’s order is based on a reasonable interpretation of the Communications Act of 1934, 48 Stat. 1064 (codified as amended at 47 U.S.C. §§ 151-614 (2006)), and a proper exercise of agency discretion. Accordingly, we will deny the petition for review."

The result of this ruling is that the FCC may, at its discretion, free incumbent local DSL providers from competition over the same local telephone lines.

The State of Broadband in the US

Here are three recent studies about the state of broadband in the US and the world. The short takeaway is that the US is a second-tier country-- at best-- as far as information infrastructure. That is largely due to the fact that the market for broadband is not competitive in the US. If it is at all available to them, Americans typically obtain broadband service from the incumbent cable company and the incumbent phone company at speeds that are little better than they were 5 years ago.

Internet Innovation Alliance Broadband Factbook

OECD: OECD Communications Outlook 2007

FTC Staff Report: Broadband Connectivity Competition Policy

Susan Crawford, Moving Slowly in the Fast Lane: "The Federal Communications Commission, our national communications regulatory body, is asking the wrong questions and heading in the wrong direction. We need new leadership in this country that has the political muscle to implement radical change. A key national priority, on a par with funding Head Start programs and adequate national healthcare, must be to ensure that access to an unfettered internet is universal, speedy, and cheap."

Newsweek: True or False: U.S.'s Broadband Penetration Is Lower Than Even Estonia's: "Maybe our proud nation is going through some rough spots, but at least we have one shining and perpetual triumph: the Internet. People may refer to it as the World Wide Web, but its capital is Silicon Valley and the United States is the big dog tapping the global keyboard. At least that's what we thought, until the news broke in April of a report by the international Organization for Economic Cooperation and Development that ranked the high-speed broadband adoption of 30 countries in the developed world. The United States was not first. Or second, or third. It ranked 15th."

David Weinberger: Delaminate the Bastards!: "Once upon a time, when this nation's telecommunications infrastructure was owned by a monopolistic industry, all the phones were black, long distance was incredibly expensive, and if you had a great idea for an innovative service using the telephone system, you were free to write a letter to the telephone company and suggest they look into it. About once a decade, the telephone company would introduce something new — touch tone phones, 800 numbers, and, yes, the pink Princess Phone for the ladies."

David H. Deans: U.S. Broadband: Is it Half Empty, or Half Full?: "Is the U.S. broadband glass half-empty, or half-full? You decide. The 12 percent growth rate from 2006 to 2007 trails the 40 percent increase in the 2005 to 2006 timeframe, when many people in the middle-income and older age groups acquired home broadband connections."

Save the Internet Blog: Painting over Broadband Failures with Pretty Pictures: "The near absolute control of phone and cable giants is being bolstered by a Washington establishment that’s loath to upset this imbalance of power. The results are now beginning to show in survey after survey that reveal nationwide broadband failures."

Eric Bangeman, ars technica: New OECD report shows limitations of US broadband public policy: "The countries with the lowest cost per megabit per second are generally characterized by two things: a significant fiber infrastructure and a healthy amount of competition. In Japan and Korea, for instance, fiber is widespread, resulting in the fastest residential broadband speeds available anywhere. In Europe, the regulatory environment allows consumers in many countries to choose from any number of DSL and cable providers."

John B. Horrigan, Pew Internet and American Life Project: Why it will Be Hard to Close the Broadband Divide: "ccording to the Pew Internet Project's February 2007 survey, 47% of American adults have broadband at home, nearly double the 24% penetration level of three years earlier. With home broadband penetration poised to surpass 50% this year, it will have taken 9 years from the time the service became widely available for home high-speed to reach half the population. To put this in context, it took 10 years for the compact disc player to reach 50% of consumers, 15 years for cell phones, and 18 years for color TV"

But the piece de resistance is this article from Spiegel, which illustrates the difference between the US and France. France encouraged competition and required incumbent carriers to allow competitors access to lines. The result is that France has faster broadband available at lower cost and competitive carriers are not simply riding on the incumbent providers facilities, but actually investing in new competitive facilities. France's Broadband Boom: Vive la High-Speed Internet!: "What a difference a few years make. In 2001, France had one of the weakest markets for broadband Internet access in the developed world, with less than a quarter of the penetration of the U.S. Today, it has sailed past the U.S. to become one of the world's most wired nations, with more than one in five inhabitants enjoying high-speed Internet connections."

How can the US catch up to the rest of the world? By encouraging competition in the broadband market. That is the goal that broadband policy should be striving to achieve-- not the Bush Administration's policy of protecting incumbents from competition, but promoting real competition.

Internet dating and the law

In Slate, Dahlia Lithwick discusses The shadowy laws of Internet dating: "Some legislators and lawyers are clamoring for something to be done about the great abundance of fraud and heartbreak in the world of cyberlove. But really, how would that differ from trying to regulate what happens on the Love Boat?"

Hijacking RSS Feeds for Fun and Profit

Full-text RSS/Atom feeds are wonderful for information addicts. A newsreader brings new articles and posts in from around the web and makes it possible to skim through hundreds of sites very quickly. Well, the upper limit is probably around 200 where reading blogs is not one's full-time vocation.

From a publisher's perspective, full-text feeds cause problems. Such full-text feeds make it especially easy to enable copyright infringement.

Two of my favorite hockey blogs, Puck Update and James Mirtle, recently switched to publishing only abridged feeds after finding their posts providing the content for a third-party web site.

Merely publishing an RSS feed does not grant a license to republish the content on another site and republishing the full text of the content without permission is a prima facie example copyright infringement. But, what about when a service republishes the full text because a user subscribes to a full-text feed through a hosted service? What is the difference between a user-driven republication and one initiated by the republisher? Is it merely the commercial intentions of the republisher? Does it have to do with source identification and misattribution? The right of publicity?

Micro Persuasion's Steve Rubel is also a victim of Blog Content Theft: "This problem is only going to grow over time. Perhaps some digital watermarking technology needs to come into play here. Or, once again, Google needs to step in and shut down all Adsense sites that are deliberately spamming the blogosphere and bloggers. Anyone have other ideas?"

Daniel Solove suggests one way to deal with Blog Post Piracy:

There is, of course, copyright law. The creative commons license for Rubel's blog states that the work must be attributed to its author and it cannot be used for commercial purposes. The pirated post doesn't contain his name on the post or the name of his blog, but it does at least have a link to the original post on Rubel's blog. Is this sufficient enough attribution? As for commercial purposes, the blog copying Rubel's posts is displaying Google Ads.

What about hosting an RSS feed that republishes the content of another RSS feed? What if that RSS feed consists of pointers to audio files hosted on the original publisher's server? This is the situation with at least one podcast "service"-- it is publishing its own RSS feeds that link to a podcaster's audio. These feeds do not hold themselves out to be the publisher of the content, but by placing their feeds in podcast directories, these hijackers manage to control the connection between the podcaster and her subscribers. Colette Vogele discusses potential legal solutions: RSS Hijacking? A threat to podcast and blogging infrastructure?:

Since RSS and podcasting is new technology, there does not exist a handy “anti-RSS feed hijacking statute” out there on the books. There are, however, other possible claims that a lawyer can consider. For example, I’m brainstorming on a number of claims including unfair competition, trademark infringement/dilution, DMCA takedown options, computer fraud and abuse, tresspass, right of publicity, misappropriation, and the like.
Read the comments for additional technical methods of approaching this problem.

Cyberlaw Central's Kevin Thompson discusses: RSS Hijacking: Is it Copyright Infringement? "Alleging copyright infringement should work, at least for purposes of a cease and desist letter." Thompson goes on to note, "Interestingly, although the RSS feed itself could be copyrightable by itself if it contains sufficiently original material, this method of infringement doesn’t copy the RSS feed itself. The interloper’s site just links to the existing feed which remains intact at the podcaster’s site. The interloper just acts like any other subscriber to the feed, making it difficult to detect.

Finally, if you are going to repost content from my blog, all I ask is to properly attribute the author and to maintain the indications of quoted text-- don't make it appear that "Rafferty" wrote something that should be properly attributed to Easterbrook. Not that it should be too difficult for a careful reader to distinguish…

Previously: Syndication and Copyright: "What are the norms for using, repurposing and republishing syndicated feeds?"

Throughout this year, über-blogger Jason Kottke posted links commentary, rumors, speculation and audio about Ken Jennings' unprecedented domination of Jeopardy. Kottke quickly became the internet's leading source for information about the wild and crazy saga of KenJen.

In the week prior to Jennings' final appearance, Kottke received an audio clip of Jennings' final Final Jeopardy and posted it to his site along with a transcript. The Washington Post picked up the story (This Game Show Contestant Is In 'Jeopardy!') and then Sony contacted Kottke and asked him to remove the audio and then the "spoiler" text.

Kottke complied, noting the chilling effect of Sony's request (Sony, Ken Jennings and Me):

As an individual weblogger with relatively limited financial and legal resources, I worry about whether I can continue to post things (legal or not) that may upset large companies and result in lawsuits that they can afford and I cannot. The NY Times can risk upsetting large companies in the course of their journalistic duties because they are a large company themselves, they know their rights, and they have a dedicated legal team to deal with stuff like this.

Red Herring reports: And the question is, ‘Who is a big bully?’

"I think it’s possible that Sony thinks individual bloggers are more easily intimidated,” said Wendy Seltzer, an Electronic Frontier Foundation staff attorney who specializes in intellectual property law. “I don’t think they had a reasonable request. A short audio clip - not a full show - could be a fair use in the context of news reporting. Jason Kottke was reporting an event that had, in fact, happened. And just because television producers wanted to treat it as suspense media, doesn’t mean that it’s not also news.”

Scott Andrew: Harrassing fans for being fans: "What it basically boils down to is entertainment companies harrassing fans for being fans. And that is no way to win fans."

Jeff Jarvis thinks the time has come for a Bloggers' Legal Defense Society:

I suggest that what we need now is a means of organizing them so a blogger who's getting harassed by big corporate or government attorneys can call for help. In some cases, the lawyers may say that the blogger did something wrong. But in most cases, the lawyer can breath fire back at the corporate dragons and skip the harassment stage and get right to the civilized discussion and agreement stage.

Denise Howell follows up (Legal Representation Is A Conversation) noting that Chilling Effects Clearinghouse, a joint project of the EFF and law school clinics at Harvard, Berkeley, Stanford, University of San Francisco, and University of Maine, already provides this exact service to small, independent online publishers.

While Howell thinks that these sort of cases are not the type of cases that lawyers in private practice typically take on as pro bono work, Evan Schaeffer thinks that the idea could work. (Thoughts About a "Bloggers' Legal Defense Society")

In the right set of circumstances--for example, matching contributions by AmLaw 250 defense firms, as well as offers of pro bono assistance from large firms when an in-the-right blogger really can't afford help--we would be willing to invest time and money into starting an organization that would serve as a clearinghouse to get threats into the hands of lawyers who would be prepared to deal with them."> In the right set of circumstances--for example, matching contributions by AmLaw 250 defense firms, as well as offers of pro bono assistance from large firms when an in-the-right blogger really can't afford help--we would be willing to invest time and money into starting an organization that would serve as a clearinghouse to get threats into the hands of lawyers who would be prepared to deal with them.

This is but one example of the broader question of how should the law deal with personal publishers. Doesn't the First Amendment require the same level of protection for the personal press as the establishment press?

In a NY Times op-ed piece, Eugene Volokh suggests that citizen journalists deserve the same level of protection as journalists working in traditional media. You Can Blog, but You Can't Hide: "The First Amendment can't give special rights to the established news media and not to upstart outlets like ours. Freedom of the press should apply to people equally, regardless of who they are, why they write or how popular they are."

Bloggers may have legal problems that extend beyond the traditional boundaries of media law. One area which bloggers have to worry about that journalists employed by mainstream press do not have to is employment law. Former blogger Paul Gutman published a note in the Columbia Journal of Law and the Arts about this issue: "Note. Say what?: Blogging and employment law in conflict". 27 Colum. JL & Arts 145 (2003). (Not available on the web, but it is on Lexis, Westlaw and Hein for those of you with access.)

Last year, I started to plan a panel discussion on "Bloggers and the law: perils and pitfalls of personal publishing." We ended up not going forward with it, because it didn't really work for our audience, but perhaps it may be time to actually run this as a session for bloggers.

Kevin Heller has one solution, the blogosphere needs to form themeslves into a not-for-profit corporation and hire Kevin as General Counsel.

Six Apart (Typepad), Google (Blogger), Tucows (Blogware), LiveJournal and other hosted blog service providers might get some customers by being the first to include access to a lawyer to answer questions about C&D letters concerning material posted on the blogs. But, would that create some level of liability for the service providers that makes such a plan infeasible? Would such a plan be ethical? Would that be a worthwhile use of resources by these companies? (Probably not.)

No Access For You

LawMeme: Ninth Circuit Upholds Injunction Barring Access to a Website

Creative Computing, Inc. v. Getloaded.com pits two trucker-oriented websites against each other. Creative Computing's Truckstop.com is an online marketplace that helps truckers and shippers link up with each other. It was the first such and quickly became wildly popular. Getloaded.com, is, if Judge Kleinfeld's opinion is to be believed, a low-down rip-off, built on a systematic policy of fraud and dirty tricks. Getloaded hired away employees from Creative and had them bring source code and customer lists with them; it also hacked into Creative's servers (Creative was using an unpatched Microsoft system, tsk tsk) and also stole the password of a Creative customer in order to get a closer look at the site's functionality.

Creative Computing, Inc. v. Getloaded.com (9th Cir., Oct. 15, 2004.)