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The inimitable Susan Crawford warns us against Net regulation tunnel vision. Overreaction to perceived problems can open the door to harms worse than the original problems -- the "solutions" can bite back. If, for example, we want to regulate Internet providers to stop them from blocking Voice-Over-IP, does that mean we have also acknowledged the power to regulate them for other ends, such as to demand that they enable wiretapping? How rapidly does anti-spyware legislation become full-blown software regulation? Instead of asking government to step in with small-fix regulations, we should take a bigger-picture view, looking for how we can re-open the network to resist these threats on our own.
One limited place we might ask for government help is antitrust -- breaking up monopoly control of connectivity resources lets us solve many problems by our own choices by helping ensure the market provides those choices. I'm not sure I share Susan's optimism -- bad regulation comes at us from too many sources and could stop many of our "route-around" opportunities -- but I do think that if we disregard her advice, the situation looks even worse.
At David Isenberg's Freedom to Connect (F2C). Live audio feed available. Lee Rainie, Pew Internet & American Life has started us off with some interesting analysis of what Internet connectivity means for social connections. Are we almost ready to update Bowling Alone?
Declan catches me Grokster blogging from the Supreme Court steps, in a photo, along with Annalee and Gwen.
Click for the full-size version on Declan's blog.
While I was napping, lots of others have been doing a great job reporting on the arguments. I'll have more of a recap later, but with the caution never to read too much into an oral argument, I was encouraged. The Justices seemed to be asking the right questions -- wondering how they'd impact innovation if they changed the Sony rule. Scalia, for example: "How much time do I get to bring lawful use to outweigh unlawful use [in a proportionality test]? I'm going to get sued right away." or Souter: "Why isn't it a forseeable conclusion that the iPod developer loses his shirt?"
Justices also seemed puzzled by what alternative test the entertainment companies were proposing to substitute, clearly disturbed by the consequences of a proportionality or "commercially significant" rule. It's not clear they responded to Don Verrilli's (petitioners') argument, joined by the Acting Solicitor General, that these were "business models built on infringement." They had probing questions for Richard Taranto (Morpheus and Streamcast) too, particularly on alleged willful blindness and on how the court should distinguish what "current" conduct was before it from the past conduct that hadn't yet been subject of summary judgment rulings below.
With bated breath...
I can't compare with Nick, Beatrice, and Kragen, who arrived around 2:30 p.m. yesterday to capture the first seats in the public line for entry to the Supreme Court, but I joined them around 11 p.m., and helped kick off the bar entrance line around 3 a.m. with the EFF gang of Kurt, Matt, Gwen, and Shari. After a DMZ, most of the line behind us was RIAA and MPAA lawyers.
Though they're vigorous opponents in court, the entertainment company lawyers were friendly line-sharers, helping us to save our places in line, and even fortifying us with Krispy Kreme. It's a good thing we were there early, because the line later swelled to more than 150, of whom fewer than 50 bar members got into the courthouse itself.
Signal/Noise 2k5
Next Friday, I'll be talking about music and the law from a different angle at Harvard's Berkman Center's second Signal or Noise? conference. The first helped kick off the study of music and the law five years ago. Join us to see what we've learned (and not yet learned) since.
Thanks to Southwest Airlines for excellent service. Even when misinformation from their codeshare partners threatened my plans, Southwest made sure I got to DC on time.
I'm sitting in front of the Supreme Court of the United States at midnight, with a crowd of about 50 lined up already for spots at tomorrow's MGM v. Grokster argument. I've done this before for concerts (OK, opera), but never for a legal argument. It's great to see the copyfight generating this much interest (and great that there's open wifi in front of SCOTUS).
Mark Cuban is a content owner. A content owner who understands that "bits are bits" and wants the customer to get those bits "in the way the customer wants to receive" them. A content owner who's exploring a range of digital content creation and distribution options. That's why, he says, he's funding the defense of MGM v. Grokster at the Supreme Court.
It won't be a good day when high school entrepreneurs have to get a fairness opinion from a technology oriented law firm to confirm that big music or movie studios wont sue you because they can come up with an angle that makes a judge believe the technology might impact the music business. It will be a sad day when American corporations start to hold their US digital innovations and inventions overseas to protect them from the RIAA, moving important jobs overseas with them.
That's what is ahead of us if Grokster loses.
With Cuban's help, we hope content owners and technology companies won't have to face that future. Thanks Mark!
If you're in the Bay Area, please join EFF for a Grokster send-off party. Send our defense team in MGM v. Grokster off to the Supreme Court in style, with a party at 1751 Social Club tonight at 8:00.
I'll be on my way to the Supreme Court Monday, camping out on the steps Monday night for a seat at the Tuesday arguments. See you there?
Sadly, the Canon won't turn on, neither before nor after the removal of 42+ tiny screws. (Photo taken with the Treo 650)
EFF colleague Annalee Newitz, Techsploitation columnist extraordinaire, has a feed. Most recently, she recaps ETECH: AlterNet: Aggregate! Iterate! Reciprocate!:
I spent a week with the ETech crowd in San Diego. Our downtown hotel was packed with mad scientists, info aggregators, gadget liberators, visionaries, post-bloggers (blogs are so 2002!), and good old-fashioned techno-wankers.
Not sure which category I fit into...
The New York Times runs an article in which law enforcement officials lament, somewhat breathlessly, that open wifi connections can be used, anonymously, by wrongdoers. The piece omits any mention of the benefits of these open wireless connections -- no-hassle connectivity anywhere the "default" community network is operating, and anonymous browsing and publication for those doing good, too.
Without a hint of irony, however:
Two federal law enforcement officials said on condition of anonymity that while they were not aware of specific cases, they believed that sophisticated terrorists might also be starting to exploit unsecured Wi-Fi connections.
Yes, even law enforcement needs anonymity sometimes.
The Maker Fair at ETECH (and its parent, Make Magazine capture my imagination on lots of levels. As a self-confessed geek, I love hardware hacks like Bunny Huang's DIY persistence-of-vision LEDs and Billy Hoffman's magstripe readers; as an activist, I love Natalie Jeremijenko's robot dogs modded to sniff out environmental toxins.
As a copyfighting lawyer, I loved the spirit of tinkering in the air. The whole event was brimming with the spirit of exploration, interoperation, and user-driven innovation. The more people who catch that excitement, the more people we'll have fighting laws that restrict our ability to open boxes and re-use the contents.
Technorati tag, etech05
Chris DiBona announced code.google.com at ETECH. From the FAQ:
What is code.google.com?
Code.google.com is our site for external developers interested in Google-related development. It's where we'll publish free source code and lists of our API services.
Sounds cool.
Chris Anderson talked about the "millions of niches" of the long tail. He described a fairly recent shift from hit-heavy production to marketing of the these niche items, fueled by democratized production, cheaper distribution, and user communication. Joe Kraus added, "all long tail businesses are marketplaces."
Long tail items are the opposite of commodities, unique items of perhaps intense interest to a few. But underlying their success, I think, is the commoditization of some of the basic goods, the platforms that allow buyers and sellers to meet, and users to communicate. Successful marketplaces on Amazon and eBay offer general-purpose interfaces, not shelves tailored toward display of the few bestsellers, but a series of display cases. Users as well as shopkeepers can customize or group these displays (reviews, lists of related items). The users' niche interests are served best by a neutral marketplace (not quite a commodity, since both Amazon and eBay benefit from network effects of market dominance).
Technorati tag etech05
The D.C. Circuit has asked for briefing and evidence on our standing to fight the broadcast flag. That's good news, because the court needs to get through the standing question -- whether we can demonstrate concrete injury from the flag -- before it can rule on the merits of the case -- whether the FCC had authority to mandate a flag at all. In oral argument, the Court expressed skepticism about the FCC's authority, likening a tuner mandate to regulation of dishwashers.
Specifically, the Court asked in part
Are there any injuries, (not including the increased cost of consumer electronics), ... that identifiable members of petitioners’ organizations will face as a result of the broadcast flag regime? If so, petitioners must identify the relevant member or members and describe the precise nature of the injury that will be caused by the FCC’s adoption of the broadcast flag regime?. We think this is a question we can answer with reference to MythTV builders, hardware manufacturers, and home theater enthusiasts, as well as educators and archivists. Then, the court can get to the meat of ruling that the flag was an unjustified extension of FCC authority.
Jason and I ran through the Endangered Gizmos list at breakneck pace. Slides here in PPT or here in PDF.
Technorati tags: etech05,
Technorati tag EFF.
Lots of fun info from Damian Stolarz and Raffi Krikorian -- equipped with a PC, your car could not only play music and help you navigate, but with a couple of sensors and webcams, keep an eye out for dangerous drivers. Pictured, a 1950 Nash Ambassador with a PC display (not OEM) in the dash.
Of course, even here, IP laws intervene. Damian wants to put a DVD screen into the back seat for his kid, and control it from the front. But every time he puts in a DVD, he has to push a whole series of buttons to get it to start. Safety loses out to the DVD-CCA license requirements: each time you want to quiet a crying child, you can't just put a disk in and press play, lest you skip the FBI warning or commercials.
Technorati tag etech05.
I'm headed to San Diego for O'Reilly's Emerging Technology Conference. I'll be talking Tuesday afternoon about Endangered Gizmos and How We Can Save Them.
The Madrid Summit was outside my usual realm of intellectual property law, but the change served to remind me that while the copyfight is but a small part of the picture, the principles we're fighting for are more than music.
The conference logo, pictured, was a circled "D", often used in the same place a (TM) or (R) would indicate trademark status. Since it's not quite so easy to instill and protect democracy as to register a trademark, all of us who care about democracy face a big task.
At least a part of that task is communication -- communicating with other democratic citizens and with other people seeking democracy. The Internet is not a panacea; none of us is naive enough to assert that. It is, however, a powerful medium for two-way communication and that communication can promote human rights (including by reporting on abuses), support understanding of democratic alternatives to terror, and help communities to make their own, non-terror choices. I don't think it's stretching too far to say that protecting against abuses of privacy, copyright or trademark online strengthens these tools of democracy.
Thanks especially to Martín Varsavsky, Joi Ito, and Marko Ahtisaari for making this happen and for inviting me to participate.
On the anniversary of the Atocha bombing, we met in the train station for the Atocha Workshop to discuss and debate creative approaches to terrorism. Debate was lively, with a strong subtext of concern that the U.S. response to terrorism is exacerbating the problem. Also helpful, the whole workshop was reported by blog.
U.N. Secretary-General Kofi Annan spoke with a committment to human rights I wish I saw reflected by U.S. leaders. "Terrorism is in itself a direct attack on human rights and the rule of law. If we sacrifice them in our response, we are handing a victory to the terrorists." (full speech). Along with denying terrorists their physical means of attack, the Secretary-General would deny them much of their psychological weaponry by refusing, as a society, to overreact by cutting back on the rights of citizens. He also spoke about helping states to develop strong infrastructures, including education, to resist teh internal growth of terrorism.
I was encouraged by the discussion of our working group at the Safe Democracy summit. Although we're still refining the statement, the group agreed relatively quickly that the open Internet was a tool of democracy, and that broad restrictions in the name of stopping terrorists from using the Net, such as restrictions on anonymity and privacy, would be counterproductive by reducing the Net's democratic uses. That response is both technical and policy: We cannot stop determined terrorists from being anonymous on the Internet, so we should not try in ways that stop the human rights activists from doing so.
We must not let policy be driven by fear of terrorism, or as FDR put it, "the only thing we have to fear is fear itself." See also Joi Ito, David Weinberger, Rebecca MacKinnon, Ethan Zuckerman and others.
I'm in Madrid at the International Summit on Democracy, Terrorism and Security, in the Internet session. IRC session at irc.freenode.net #madridopendemo. Lots of Internet and security experts, including several Berkman Center colleagues, here for discussion of how to preserve the open Internet in the face of terrorist threats and reactions to them.
More to come.
