January 30, 2006
The Spectrum of Anti-Badware

Several commentors here and elsewhere have seen my post Spyware as an Ecosystem Blight as an attack on those who have exposed spyware. It isn't.

First, as a lawyer who takes seriously the duty of "zealous advocacy" owed to my clients and causes, I see "zealot" as a badge of honor more often than as criticism. Second, I was referring my own criticism specifically to those who have levered poorly-justified lawsuits against alleged spyware -- not to those who have preceded StopBadware.org in exposing the mechanisms by which malware gunks up computers against the users' will.

The most visible "anti-spyware" forces to me, a lawyer, have been those such as U-Haul, Wells Fargo, Washington Post, and 1-800 Contacts, who have run amok in the courts trying to shut down popups with theories I think are harmful to the fabric of the law. I don't think the user-centered movement gains when trademark or copyright law is extended to prevent a user from covering the on-screen display of a web page or trademark -- what if the user wants to browse with Greasemonkey or show her own pop-ups?

It's unfortunate when the companies making misleading legal claims or lobbying for overreaching law become the most visible piece of the anti-spyware spectrum -- though it may be that they're only the most visible to those wearing lawyer-colored glasses. So, to make clear: thank you to all those working to enhance user choice by informing the public about the software that wants to install itself on our computers.

(Sorry about the broken blog configuration. That should be fixed as well.)

Posted by Wendy at 07:29 PM
January 25, 2006
Spyware as an Ecosystem Blight

How I stopped worrying and learned to love antispyware. For a long time, I've stayed away from the anti-spyware fight. I don't like unwanted applications, but I've managed to keep my computers clean with a little care (and a little Linux), so why can't others do the same? Worse, the tactics of some anti-spyware forces have made the cure seem worse than the disease: twisting copyright law to claim that adding an advertising overlay constitutes copyright infringement; mis-asserting trademark against those who list terms to which ads can abe associated; writing overbroad state laws that take control away from the computer owner, preventing users from using or installing software of their choosing.

I still dislike anti-spyware zealotry, but I've come to see that the higher-order consequences of spyware -- the tactics of its opponents and the reactions of users who are plagued by it -- are also problematic. A measured approach to malware can help avert those problems without distorting the law around it. That's why I'm encouraged by the Berkman Center's new Stop Badware project:

StopBadware.org is a "Neighborhood Watch" campaign aimed at fighting badware. We will seek to provide reliable, objective information about downloadable applications in order to help consumers to make better choices about what they download on to their computers. We aim to become a central clearinghouse for research on badware and the bad actors who spread it, and to become a focal point for developing collaborative, community-minded approaches to stopping badware.

The Internet has always been a playground of externalities. It's useful to me because of what others contribute, so what makes it easier for others to participate increases Internet value. Consider blogging software. Technically, it's trivial, a few lines of code to post updates to a web page and a few more to 'trackback' other sites you've referenced. Yet the "blogosphere" (the web) was far poorer when its only writers were those techie enough to write their own sites from the webserver up.

So by converse, when malware or its threat drives some people away from the Internet, it decreases the Net value for us all. We lose travel guides when those who introduce us to new sites stop exploring because they fear "infection." Our social networks crumble when connectors stop opening email from unknown senders. And when our ISPs or lawmakers step in to "help," they can make things worse, blocking legitimate applications that users have opted for.

The Berkman Center's project, subtitled "Regaining control of our computers," targets the weeds without razing the garden. It focuses squarely on the user, inviting people to contribute their experiences to a database, against which others will be able to compare new applications they encounter. Let's hope it can help us to defend the Internet against both "badware" and its over-zealous opponents.

Posted by Wendy at 08:28 AM
Reason 318 to like MythTV

Just one more reason to like MythTV: When I saw an image I wanted to save for a trademark discussion, I could simply pause, grab a thumbnail image or screenshot, and return to the program. Let's see your VCR do that.

The question I'm saving for a trademark class: is this image from the Daily Show fair use or trademark dilution?

Posted by Wendy at 12:12 AM
January 19, 2006
Austen making a publishing comeback (even without copyright)

The NYT reports that Headline publishers (an outfit nearly impossible to Google) will be re-issuing Jane Austen classics as "Classic Romances."

Don't look for her anytime soon on Oprah, but Jane Austen, dead since 1817, is about to get a jolt of 21st-century image-making. When it is finished, Austen, the clergyman's daughter whose novels include "Sense and Sensibility," "Pride and Prejudice" and "Emma," will reemerge among the royalty of romance. In May, Headline publishers will issue her six novels as "Classic Romances," with glossy pastel covers depicting dashing dandies and bonneted Regency beauties, Reuters reported yesterday from London.

Yup, even though Austen's books are all in the public domain, so Headline gets no copyright exclusivity in their publication, the publisher still thinks it can make them profitable with clever packaging and marketing. That's probably right. Just as filmmakers could attract audiences to the remakes of Pride and Prejudice or the update to Emma in Clueless, so book publishers can find new audiences who wouldn't want to (or think to) retrieve the dry ascii from Project Gutenberg.

As Headline's search page describes:

All six of Jane Austen's novels are being packaged so they appeal to the fiction-buying public, rather than as either dusty academic texts or film tie-ins. A HUGE untapped market \n

More power to them. It is a truth universally acknowledged, that a publisher in possession of a good audience, must be in want of a text. (with apologies to Jane Austen)

Posted by Wendy at 02:55 PM
January 16, 2006
GPLv3 Discussion Launches

I'm at MIT for the opening of discussions on the GPLv3, the third version of the Free Software Foundation's tremendously successful "copyleft" license.

The first draft is open for comments, with a web infrastructure to collect reactions and use those in updating the draft.

The license builds on the core of GPL, preserving software freedom: freedom for users to tinker, modify, and redistribute the software they receive. To that, v3 adds an anti-DRM provision, that the GPL "does not assist user disablement," as Eben Moglen put it. Additional changes would make the license compatible with more other open source licenses; give users greater freedom to grant additional permissions; and protect against he encubrance of Free Software with software patents.

I look forward to participating in a lively discussion.

Posted by Wendy at 04:36 PM
January 11, 2006
The Million TM-infringement homepage?

How many trademark infringements can you spot in the The Million Dollar Homepage? Among all the ads for free porn, free domain names, and free gambling (only the first click is free), I spot least eBay and Yahoo! logos that don't go to those companies' websites. I can't tell whether they're associated listing services, click-through affiliate links, or phishing expeditions, but I imagine the companies would have a decent trademark claim against someone who used the logos for commercial gain.

See this Washington Post story for more on the site and its bubble-story.

Posted by Wendy at 04:18 PM
January 10, 2006
Still Looking for a New Year's Resolution? Protect your privacy

If, like me, you didn't actually make a resolution Dec. 31, catch up by taking some of the suggestions from Chris Hoofnagle's (EPIC West) Consumer Privacy Top 10 11. The government's warrantless wiretaps may be the scariest of privacy invaders right now, but government can also collect a lot of information from private parties. What you give to marketers may indeed end up in your permanent record.

1. OPT OUT OF PRESCREENED OFFERS OF CREDIT. By calling 1-888-567-8688 or by visiting https://www.optoutprescreen.com/, you can stop receiving those annoying credit and insurance offers.

2. STOP YOUR PHONE RECORDS FROM BEING SOLD. Call your landline and wireless phone companies and request to opt-out of "CPNI" sharing. CPNI is your call records information; most telephone companies sell this data.


GET FREE CREDIT REPORTS. All Americans are now entitled to a free credit report from each of the three nationwide consumer reporting agencies. You can perform a free form of credit monitoring by requesting one of your three credit reports every four months. Visit https://www.annualcreditreport.com or call 1-877-322-8228.

Note that the free credit reports are mandated by law, but advertisers will try to hoodwink you into paying for extra "monitoring" services if you sign up through other, often deceptively-labeled websites.

Posted by Wendy at 07:12 AM
January 03, 2006
When the Internet Is Less Free Than We Think

We in the U.S. like to see the Internet as a space of unparalleled freedom -- A space where every speaker has his or her soapbox and can reach out to new audiences, erasing boundaries of distance. Two items from Berkmanspace today remind me of the limits of this view.

Rebecca MacKinnon has been investigating censorship of Chinese blogs. Today, she reports that Microsoft has taken down a popular Chinese blogger:

Microsoft's MSN Spaces continues to censor its Chinese language blogs, and has become more aggressive and thorough at censorship since I first checked out MSN's censorship system last summer. On New Years Eve, MSN Spaces took down the popular blog written by Zhao Jing, aka Michael Anti.

When Microsoft removed the blog, it was lost not just to Chinese readers, but to those outside China whom Michael Anti was able to inform. Rebecca criticizes Microsoft for this removal, even as she wonders about the politics of the censorship. Did MSN react because a Chinese competitor was bringing the controversial hosting to the Chinese government's attention? Would all of MSN Spaces have been blocked to Chinese readers if Microsoft didn't self-police? This incident reminds us how dependent cyber-speech is on the third parties who host it. When they choose to remove it, whether by market whim or government pressure (or a combination of both), we can quickly lose freedoms to speak and read we thought we had -- even in the U.S.

Episode 2 comes from Prof. Charlie Nesson, wondering about the fair use or copyright status of posting a New Republic article for his evidence class. Offline, were he to hand out copies as students filed into the classroom, this would rate as clear fair use: "teaching (including multiple copies for classroom use)." Online, however, when Prof. Nesson wants to share this teaching with the world and the technology enables him to do it, the copyright law might get in the way. If the New Republic were to send a DMCA takedown notice claiming copyright infringement, would Harvard defend the posting or take it down "expeditiously" to preserve their copyright safe-harbor? Too many ISPs take down without asking questions.

Posted by Wendy at 04:23 PM
January 01, 2006
Happy 2006!

Star-lights at the Time-Warner Center, against snow. Dec. 31, 2005.

Posted by Wendy at 08:37 PM