One of the very interesting sessions at Supernova featured a pair of speakers on aspects of privacy and publicity: danah boyd on “visibility” and Adam Greenfield on “urban objects.” Together, I found their talks making me think about the functions of privacy: how can we steer the course between too much and too little information-sharing?

danah pointed out the number of places we don’t learn enough. We “see” others on social media but fail to follow through on what we learn. She described a teen whose MySpace page chronicled abuse at her mother’s hands for months before the girl picked up a weapon. After the fact, the media jumped on “murder has a MySpace,” but before, none had used that public information to help her out of the abuse. In a less dramatic case of short-sighted vision, danah showed Twitter users responding to trending black names after the BET Awards with “what’s happening to the neighborhood?” Despite the possibilities networked media offer, we often fail to look below the surface, to learn about those around us and make connections.

Adam, showing the possibilities of networked sensors in urban environments, described a consequence of “learning too much.” Neighbors in a small apartment building had been getting along just fine until someone set up a web forum. In the half year thereafter, most of the 6 apartments turned over. People didn’t want to know so much about those with whom they shared an address. Here, we might see what Jeffrey Rosen and Lawrence Lessig have characterized as the problem of “short attention spans.” We learn too much to ignore, but not enough to put the new factoid in context. We don’t pay attention long enough to understand.

How do we get the “just right” level of visibility to and from others? and what is “just right”? danah notes that we participate in networked publics, Helen Nissenbaum talks of contexts. One challenge is tuning our message and understanding to the various publics in which we speak and listen; knowing that what we put on Facebook or MySpace may be seen by many and understood by few. Like danah, Kevin Marks points out the asymmetry of the publics to which we speak and listen.

Another challenge is to find connections among publics and build upon them to engage with those who seem different, Ethan Zuckerman’s xenophilia. The ‘Net may have grown past the stage where just Internet use could be conversation-starter enough but spaces within it take common interest and create community. Socializing in World of Warcraft or a blog’s comments section can make us more willing to hear our counterparts’ context.

Finally, our largest public, here in the United States, is our democracy. We need to live peacefully with our neighbors and reach common decisions. Where our time is too limited to bestow attention on all, do we need to deliberately look away? John Rawls, in Political Liberalism, discusses political choices supported by an “overlapping consensus” from people with differing values and comprehensive views of “the good.” I wonder whether this overlapping consensus depends on a degree of privacy and a willingness to look away from differences outside the consensus.

Google announced Friday that it would now be “personalizing” all searches, not just those for signed-in users. If your browser has a Google cookie, unless you’ve explicitly opted out, your search results will be customized based on search history.

Danny Sullivan, at Search Engine Land, wonders why more people aren’t paying attention:

On Friday afternoon, Google made the biggest change that has ever happened in search engines, and the world largely yawned. Maybe Google timed its announcement that it was personalizing everyone’s search results just right, so few would notice. Maybe no one really understood how significant the change was. Whatever the reason, it was a huge development and deserves much more attention than it has received so far.

I agree this is a big deal, even if it’s only the next step in a trend begun by customized search for signed-in users years ago. And except for here, I won’t even mention the P-word, “privacy.” Because on top of the implications of storing all a user’s search history, I wonder about the transparency of personalized search. How do we understand what search looks like to the world as it gets sliced up by history, location, and other inferences search providers make about their searchers?

As users, we’ve basically come to terms with the non-transparency of the search algorithms that determine which results to show and how to order them. We use the engine that mostly gets us relevant results (or perhaps, that offers shopping discounts). If we’re dissatisfied with the results Google returns, we can use Yahoo or Bing.

We also have some degree of trust that search isn’t systematically discriminating against particular pages or providers for undisclosed reasons. When Google received copyright takedown demands from the Church of Scientology years ago, prompting it to remove many links to “Operation Clambake,” Google sent the takedowns to Chilling Effects and linked them from its search pages so searchers could see why the search had apparently become more pro-Scientology in its results. More recently, the search engine has worked with the Berkman Center’s StopBadware to flag malware distribution points and let searchers know why sites have been flagged “harmful.” When a racist image appeared in searches for “Michelle Obama,” Google used an ad to explain why, but did not tweak algorithms to remove the picture.

How do we verify that this trust is warranted, that page visibility is a relative meritocracy? With open source, we could read the code or delegate that task to others. With a closed platform where we can’t do that, our next best alternative is implicit or explicit comparison of results with others. Investigative journalists might follow a tip-off that liberal media seemed to rank higher than conservative, and run some comparisons and questions to test and report back; search engine optimizers, motivated to improve their own pages’ rankings, might also alert us to biases that caused unfair demotions — we can believe we’re seeing a reasonable mix of digital camera stores because proprietors would complain if they were omitted. If something “feels wrong” to enough people, chances are it will bubble up through the crowd for verification (or debunking — see the complaints that iTunes “shuffle” feature isn’t random, by listeners who confuse randomness with a non-random even distribution). If a search engine failed to disclose payment-induced bias, the FTC might even follow with a complaint.

With personalized search, these crowd-sourced modes of verification will work less well. We won’t know if the biases we encounter in search are also seen by others, or if the store shuffles its end-caps when it sees us walk in. It would be easier for an Evil search provider to subtly tweak results to favor paying clients or ideologies, unnoticed.

Finally, I’m reminded of the “ants” in Cory Doctorow’s excellent Human Readable — an automated adaptive system so complex even its creators can’t debug it or determine its patterns. If someone is paying off the ants, society can’t trace the payments.

When I asked a version of this transparency question to the “real-time search” panel at Supernova, Barney Pell of Bing suggested that users don’t want to know how the search works, only that it gets them useful results. Part of my utility function, though, is fairness. I hope we can reconstruct that broader view in a world of ever-more-personalized search.

Why did it take nearly a decade for portable video to move beyond compact DVD players? Why can we do so much more with music CDs and their successors than with DVDs and theirs? I argue the difference is baked-in DRM and its legal side-effects.

Copyright scholars have been talking for a long time about the DMCA and its impact on fair use — if your media is locked by DRM, you may be forbidden technologically from legally permissible criticism or transformation. (See the extraordinary lengths to which the MPAA goes in trying to say this isn’t so.) This is a serious problem, but it has bothered me that the focus has often eclipsed another DRM-induced problem, the foreclosure of open innovation and development around digital media.

In a draft paper, The Imperfect is the Enemy of the Good: Anticircumvention Versus Open Innovation, that will appear in the Berkeley Technology Law Journal this spring, I argue that conflicts with open development are a serious architectural flaw in anticircumvention law and policy. As we recognize the value of disruptive and user-driven innovation, we should shape the law to help, not hinder, this decentralized development.

Under an anticircumvention regime, the producers of media content can authorize or deny authorization to technologies for playing their works. Open source technologies and their developers cannot logically be authorized. “Open-source DRM” is a contradiction in terms, for open source encourages user modification (and copyleft requires its availability), while DRM compels “robustness” against those same user modifications. Since DRM aims to control use of content while permitting the user to see or hear it, it can be implemented only in software or hardware that is able to override its user’s wishes—and can’t be hacked to do otherwise. For a DRM implementation to make any sense, therefore, its barriers against user modification of the rights management must be at least as strong as those against user access to its protected content.

I characterize a “DRM imperative” and explore the technical incompatibilities between regulation by code and exploration of code. We see DRM centralizing development and forcing the black-boxing of complementary media technology, in a widening zone as it mandates that protected media be played only on compliant devices, that those may output media content only to other compliant devices, etc. The home media network is thus progressively closed to open-source development.

Foreclosing open development costs us technically, economically, and socially. We lose predicted technological improvements, those of user-innovators (von Hippel) or disruptive technologies (Christensen) from outside the incumbent-authorized set, that could offer new options for content creators and audiences (such as better playback, library, mixing, and commerce options). We lose social and cultural opportunities for commons-based peer production.

You can find the draft paper at SSRN, bepress, or here in PDF.

This coming week, I’ll be reporting from Supernova, Kevin Werbach’s excellent conference on networks, communication, and the things we do with them. The great thing about this gathering is the one that makes it hardest to describe — it takes a broad view of “Networks” and brings together people with a wide range of perspectives on their use. I’ll hope to capture some of that energy here.

For several years, the Chilling Effects Clearinghouse has cataloging the effects of legal threats on online expression and helping people to understand their rights. Amid all the chilling we continue to see, it’s welcome to see rays of sunshine when bloggers stand up to threats, helping to stop the cycle of threat-and-takedown.

The BoingBoing team did this the other day when they got a legal threat from Ralph Lauren’s lawyers over an advertisement they mocked on the BoingBoing blog for featuring a stick-thin model. The lawyers claimed copyright infringement, saying “PRL owns all right, title, and interest in the original images that appear in the Advertisements.” Other hosts pull content “expeditiously” when they receive these notices (as Google did when notified of the post on Photoshop Disasters), and most bloggers and posters don’t counter-notify, even though Chilling Effects offers a handy counter-notification form.

Not BoingBoing, they posted the letter (and the image again) along with copious mockery, including an offer to feed the obviously starved models, and other sources picked up on the fun. The image has now been seen by many more people than would have discovered it in BoingBoing’s archives, in a pattern the press has nicknamed the “Streisand Effect.”

We use the term “chilling effects” to describe indirect legal restraints, or self-censorship, because most cease-and-desist letters don’t go through the courts. The lawyers (and non-lawyers) sending them rely on the in terrorem effects of threatened legal action, and often succeed in silencing speech for the cost of an e-postage stamp.

Actions like BoingBoing’s use the court of public opinion to counter this squelching. They fight legalese with public outrage (in support of legal analysis), and at the same time, help other readers to understand they have similar rights. Further, they increase the “cost” of sending cease-and-desists, as they make potential claimants consider the publicity risks being made to look foolish, bullying, or worse.

For those curious about the underlying legalities here, the Copyright Act makes clear that fair use, including for the purposes of commentary, criticism, and news reporting, is not an infringement of copyright. See Chilling Effects’ fair use FAQ. Yet the DMCA notice-and-takedown procedure encourages ISPs to respond to complaints with takedown, not investigation and legal balancing. Providers like BoingBoing’s Priority Colo should also get credit for their willingness to back their users’ responses.

As a result of the attention, Ralph Lauren apologized for the image: “After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman’s body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately.”

May the warming (and proper attention to the health of fashion models) continue!

With the help of Chilling Effects’s terrific new research associate, Rebecca Schoff, we’ve been updating the “Weather Reports” blog to provide timely updates on the climate for free expression online. Recent posts check in with the wild west of fair use, Veoh’s DMCA safe-harbor victory and some bites at the Apple. Add Chill weather RSS or follow @chillingeffects on twitter or identi.ca.

We’re also working behind the scenes to get takedown notices posted more quickly. In conjunction with Blogger, we’ve been working to help Bloggers get better information about DMCA notices demanding removal of material from their blogs, so they can determine whether to remove or edit the posts, or to counter-notify instead.

In a speech this morning, widely heralded (and criticized) as a call for “network neutrality,” FCC Chairman Julius Genachowski: “Why has the Internet proved to be such a powerful engine for creativity, innovation, and economic growth? A big part of the answer traces back to one key decision by the Internet’s original architects: to make the Internet an open system.”

Now “open system” doesn’t mean anarchy. The Internet has rules, technical standards codified in the unassuming sounding “Requests for Comment.” As described by the author of RFC 1, Steve Crocker (How the Internet Got Its Rules), the RFCs were designed to help people coordinate activity, to build an interoperable network: “After all, everyone understood there was a practical value in choosing to do the same task in the same way. For example, if we wanted to move a file from one machine to another, and if you were to design the process one way, and I was to design it another, then anyone who wanted to talk to both of us would have to employ two distinct ways of doing the same thing.” By coordinating an open infrastructure, the Net’s architects left room for expansion at the edges.

While critics have been quick to call the statement and the rules it prefigures “government regulation,” Chairman Genachowski says “this is not about government regulation of the Internet. It’s about fair rules of the road,” (a phrase picked up by Commissioners Copps and Clyburn in their supporting statements). Like rules of the road, basic non-discrimination and transparency principles promote interoperability: As every driver and car manufacturer knows what to expect of the highways, every Internet user and application-developer should know what he or she can assume as substrate.

Yes, road rules constrain some innovation at the core — you can’t build a public road with braid-like traffic patterns where cars freely weave in and out in both directions, or with yellow stop signs and green “yield,” but you can still improve the pavement or road reflectors. The added predictability of a standard interface enables other more significant innovation at the edges — the Porsche, Prius, Smart, and Tesla can all drive on the same standard highway.

Most importantly, Chairman Genachowski shows he understands the option value of network openness — leaving room for the unexpected:

The Internet’s creators didn’t want the network architecture — or any single entity — to pick winners and losers. Because it might pick the wrong ones. Instead, the Internet’s open architecture pushes decision-making and intelligence to the edge of the network — to end users, to the cloud, to businesses of every size and in every sector of the economy, to creators and speakers across the country and around the globe. In the words of Tim Berners-Lee, the Internet is a “blank canvas” — allowing anyone to contribute and to innovate without permission.

As the Net’s core became more fixed since the days of RFC 1, it has enabled attachment of various devices and formats, some of which would become standards in their own right (HTTP, HTML) others of which would never really take off (VRML 3D modeling). We can’t pick winners, but we can build a field for contests worth winning.

Working through the details of the proposed FCC rules will be critical, and difficult, but the principles Genachowski offers for implementation provide a solid foundation.

The House Judiciary Committee has been scheduling some interesting hearings lately, including one next week on ICANN policies: The Expansion of Top Level Domains and its Effects on Competition. Last week, they heard about Google Book Search:Competition and Commerce in Digital Books.

Perhaps the strangest reports out of last week’s hearing were those on the Register of Copyrights’s statement, in which she asserted that the settlement “is tantamount to creating a private compulsory license through the judiciary [and that] such decisions are the domain of Congress.” The Register urged that courts shouldn’t endorse “settlements that come so close to encroaching on the legislative function.”

Now while I suggested on my first read of the settlement that the registry and clearinghouse “look[ed] like private implementations of infrastructure you’d really expect government to provide,” government has thus far failed to do so (no Orphan Works legislation), while private actors have moved them much closer. That’s a reason to bemoan government’s pace and the capture of public copyright law by special-interest lobbying, perhaps, but not to stand in the way of private cooperation toward greater access.

The great absurdity in the Register’s complaint is to label the settlement a “compulsory license.” A compulsory license, in the few places they exist in copyright law, is mandatory on the copyright holder. A songwriter cannot object to a new arrangement and recording that does not “change the basic melody or fundamental character” of a previously recorded work — her only right is to recover the compulsory “cover” license fee or to negotiate a different arrangement. The Google settlement, by contrast, offers rights-holders options: the right to opt-out of the settlement entirely, leaving the defaults of copyright law in place, or the ability to participate in the settlement and request different treatment of their works. Authors need only step up and say something if they prefer copyright’s defaults to Google’s.

So while I’d love to see the settlement opened even further, to participation from other digitizers and other representatives of the public interest, this particular complaint from the Register strikes off. If government can’t facilitate access to accumulated human wisdom, it should get out of the way (while keeping watch for anticompetitive effects) while others do. Instead, the Register’s intervention here sounds like the petulant complaint of one not invited to the settlement table.

I’ve moved to Boulder, Colorado, for a year with the Silicon Flatirons Center for Law, Technology, and Entrepreneurship at the University of Colorado. I’m here to research software patents and user innovation (and no, innovative methods of trolling aren’t quite what I think the Founders meant by “promote the progress of science and the useful arts.”)

Boulder’s a particularly good place for this study, because along with its beautiful mountains and open spaces, it has an intense entrepreneurial community, with frequent New Tech Meetups, Ignites, and informal gatherings. Plenty of innovation, how much fueled or swamped by patent?

I’m particularly interested in the cases of strategic behavior, where a patent is used not to secure limited-time exclusivity for the developer bringing a product to market, but instead as a bargaining lever, to spread FUD, or to extract value by threat. Are these indirectly promoting progress, such as by providing a market for research investment, or do they just get in the way? If you’re in the area and thinking about these issues, please let me know!

The French Constitutional Court Wednesday struck down the provisions of the HADOPI “graduated sanction” law that would have required Internet service providers to cut off subscribers access (while continuing to take their payments) after repeat warnings of copyright infringement.

The Court’s ruling recognizes the importance of Internet access and the necessity of due process — before access is cut off:

12. Whereas under Article 11 of the Declaration on the Rights of Man and Citizen of 1789: “The free communication of thoughts and opinions is one of the most precious rights of man: every citizen may therefore speak, write and print freely, except to respond to the abuse of this freedom in cases determined by law” that in the current state of communications and given the widespread development of communication services to the public online and the importance of these services for participation in democratic life and to the expression of ideas and opinions, this right includes freedom to access these [Internet] services;

See more at La Quadrature du Net.

Although French legislators say they will revise the law to leave its graduated warnings, the stripping of its automatic termination provisions is an important recognition that copyright cannot trump democratic communication.

UPDATE: While preparing for my SouthEast LinuxFest talk, it occurred to me that this is a good example of the power of generative demonstration: The hundreds of thousands of users participating in democratic communications via the Internet are all part of the wave that helped the Constitutional Court to see the Internet as a critical medium for speech and its access as a core human right. Five years ago, this decision would be unlikely, five years from now, it will seem inevitable.