Barbie Enchiladas on the House

Maybe it's time for Intellectual Property Law Barbie, suggests the L.A. Times, reporting on artist Tom Forsythe's legal victory over Mattel. Forsythe took photographs of food chain barbie, in which "Barbie is about to be destroyed or harmed by domestic life in the form of kitchen appliances, yet continues displaying her well known smile, disturbingly oblivious to her predicament." The Ninth Circuit held that this was fair use of the copyrighted Barbie image and fair use of the Barbie trademark and trade dress. "Allowing Forsythe’s use serves the aims of the Copyright Act by encouraging the very creativity and criticism that the Act protects."

Fashionable pink hats off to Forsythe and his defenders at Howard, Rice and the ACLU. Plus a side note of thanks to Mattel for getting itself into such wonderful scrapes. As Judge Kozinski put it in Barbie's battle with the band Aqua, "The parties are advised to chill."

Regulatory Slippage

Thanks to danah boyd for challenging my claim that social norms are "behind" technology.

Social norms aren't behind; they're baffled at the direction in which things are going. They're pushing for a different direction and they aren't being heard.

I think we agree there's been a slippage between norms and technology. Maybe it betrays a technology-centric view that I'm waiting for norms to catch up with changed technology. Perhaps the LiveJournalers consider that they've evolved a set of social norms to which they're waiting for technology to adapt.

danah's right to warn us away from the technological imperative -- thinking that just because tech can do something, it should or must. The Napster example shows that law can stop even good tech; but the continued spread of peer-to-peer music sharing suggests that law doesn't always shape norms. Better technologies will support social norms, not fight or frustrate them, or they'll likely die lacking a market. From whatever particular angle we begin looking at a problem, we shouldn't forget to look at the other constraints, and we shouldn't presume that our "native" viewpoints offer the best perspective.

Technology and Norms of Publicity

Joi Ito posts on the conundrum of semi-private online spaces, those that don't have access controls but whose authors seem to have an expectation of privacy nonetheless:

How many people who blog know that many blogs automatically send trackbacks or send pings to pingers sites like weblogs.com? ... One of the problems of using the "big time bloggers" to design the technology is that we often forget that many people would rather NOT have their contexts collapsed.

We early adopters know how referer logs work; we know that Google and the Internet Archive (and a host of less benign others we don't know) can keep their argus eyes on everything we do. We know how to write .htaccess files, or at least whom to ask for something similar, if we want better (though still not total) privacy. We've internalized the norm that conduct not marked private is public.

There's a privacy tension that springs from differing understandings of technological capabilities -- and the social spaces they affect. Most of us at a Creative Commons party know tiny digital cameras and phonecams; we're attuned to the norm that everything we do in public may be photographed and webbed unless we specifically object. But others, in other places, may not share that technological familiarity; they think their activity is private, within the circle of those actually present or invited. Just as they don't realize that referer logs and search can advertise "private" pages, they don't expect that an in-person meeting will migrate online to a wider public.

Yet there's also a second-order tension, even among those who fully understand the technoloy. We can appreciate its capabilities and still regret the loss of privacy. What could previously be left implicit, the distinction between a private gathering and a public event, must now be spelled out before the webloggers and mobloggers get to work. We haven't yet found a good technological replica for those intermediate spaces between secret and world-readable. (It's not just copyright holders who worry about the ease of digital redistribution; and trusted computing isn't the answer to either's concerns.)

I wondered at first if privacy tensions would ease as more people became more technically sophisticated, but I'm inclined to think that gaps in understanding will just move with the tech, and social norms will follow still further behind.

Concentrated Media: for best results shake hard before serving

Rupert Murdoch's purchase of DirecTV OK'd: "the media titan can conquer more U.S. viewers via satellite." Conquer's the right word, or as Dan puts it, "Fair and Balanced" meets "Cease and Desist."

Chanukah gifts

Lots of good news for the holidays. KaZaA is spared an injunction in the Netherlands; the RIAA's subpoenas are quashed in Washington, D.C.; and now, "DVD Jon" Johansen's acquittal is upheld by the Norwegian appeals court.

Chanukah has eight days. What's next? How about a surge in EFF membership?

Any Port (but 43) in a Storm

ICANN has launched three task forces on WHOIS restructuring. Task Force 1 is set to focus on marketing access:

The purpose of this task force is to determine what contractual changes (if any) are required to allow registrars and registries to protect domain name holder data from data mining for the purposes of marketing.

It sounds innocuous enough -- nobody likes spam -- but the restrictions being discussed reach further than marketers. Pushed by registrars who feel that WHOIS amounts to forced disclosure of their customer lists, the task force is seriously discussing closing off port 43's straightforward access to WHOIS information, replacing it with GIF-based barriers or similar access restrictions.

Right now, anyone can either use registrars' web-based interfaces, fire up a command-line client, or programmatically access data over port 43. If some interests on the WHOIS task force get their way, the latter two options will disappear for the ordinary researcher. That won't necessarily increase privacy, however, because data resellers such as Thomson and Thomson, willing to pay $10,000 a year, will still be able to get it through contractually mandated "bulk access." What it will mean is that academic researchers doing network studies or archiving and individuals facing challenges from intellectual property claimants will have a harder time gathering their data.

I'm sensitive to privacy concerns, and indeed believe there should be far less (or no) mandatory collection of data upon domain name registration, but I also favor equal access to what data is collected. I'm also an ALAC liaison to the task force, so I'm looking for other thoughts on the subject. Please leave comments or email.

Jump in, the water's fine

I'm glad to see Jon Ippolito's Pool project, at the University of Maine, in the news. The Pool creates a body of reusable art and code objects, with an interface to show their properties and evolution. It encourages its contributors to leave the exclusivity of copyright behind, by showing them the value to be gained by sharing. (In this regard, it echoes the spirit of Creative Commons, though its details and implementation differ sharply.)

Jon has been doing fascinating work with new media for a long time. I learned a great deal from a panel with him at the Guggenheim and his Variable Media Initiative. Don't miss the Legal Protection Fault, an updated 404 with such errors as

Outdated economic driver: Your economic system may have reverted to a property-based business model under pressure from the art market, thus rendering public urls private.

Posted by Wendy at 05:52 PM

Please keep our Internet simple

Via Ross Mayfield's Weblog, a scary report on Verisign's designs for the Internet:

Stratton Sclavos (Verisign CEO): We have to move the complexity back into the center of the network and remove it from the edge.

Every time I'm about to give up on ICANN (and long conference calls starting at 5 AM Pacific sometimes push me that way), I hear something like this to reassert the organization's importance.

Painters buy white canvases for a reason. The Internet has succeeded as a platform for innovation because its architecture does not preempt its uses; instead, the stupid network offers a neutral background for line drawing, oil painting, and collage. Sure a grid on the blank canvas would help those making mechanical drawings at the right scale, but it's just noise to the rest, who now need to paint an extra layer to cover it up. Complexity built into the network (such as a search engine that responds to every nonexistent domain name query) may enable a few uses, but it slows or breaks many more, and impedes the development of alternatives.

ICANNography

The World Intellectual Property Organization, (the same organization whose head recently equated intellectual property infringement with terrorism), has been pressing ICANN to add domain name monopolies on the names of countries, and the names and acronyms of inter-governmental organizations, into the UDRP. Despite the fact that no-one but WIPO seems to want these new exclusions, a working group has nonetheless been convened to study their recommendations. This leads to an almost complete divergence of views on the mandate of this group: some feel it should proceed forthwith to proposing implementation of these exclusions by amendment to the UDRP; others feel the recommendation is at odds with ICANN's mandate, and we should document the lack of consensus and move away.

WIPO doesn't like the UDRP as it stands, because its claimants must subject themselves to the jurisdiction of national courts. IGOs would prefer international arbitration, where not only can they keep their sovereign immunity, but the procedural and substantive rules differ. But the possibility of appeal to national courts is no minor detail, but part of the balance keeping domain name disputes in check. If UDRP arbitrators, or the ICANN "consensus" veer too far from national laws, they can be corrected by courts.

Rather than demanding the public's exclusion from a range of names and acronyms (think bone china, india ink, and WHO, for starters, not to mention the jokers at GATT.org), countries and IGOs could use names that are unambiguously theirs -- the .int top-level domain, and as many names as they want in their own country-code top-level domains. Let these few use unique TLDs as a sort of seal of authenticity, rather than limiting the speech opportunities of people using all the rest.