September 28, 2006
Who Owns Magic?

The NYT runs a story on "Dueling Magicians", describing Ricky Jay's claims that Eric Walton has borrowed a few too many tricks. Walton's reply: "This material has been out there.... The best magicians can do is take existing routines and sort of put our own spin on them."

Interestingly, the subject of copyright never comes up -- and that's probably appropriate. While a magician's patter while performing may be protectable expression, the tricks themselves are likely unprotectable ideas, methods, and processes. Of course that still leaves "selection and arrangement," and it's possible one act could mimic another so closely that it appropriated those expressive elements.

If it didn't violate copyright, Walton's act does seem to have tweaked some magicians' ethical sense. Says Teller, of Penn and Teller:

“If an act hasn’t been prominently performed for a long time, and someone takes the trouble to bring it back from absolute death and put it into his act with fine touches, and which at least hasn’t been seen by a current generation,” he said, “the gentlemanly thing to do is say, ‘That’s his for now.’ ”

That said, he added, “magicians are not unique in their absence of creativity.”

I do hope he wasn't referring to lawyers with that last jab.

Posted by Wendy at 06:10 PM
Speaking at USC's Technology and Public Diplomacy

On October 3, I'll be heading out to the USC Center on Public Diplomacy to take part in their Technology and Public Diplomacy Speaker Series with a a talk on copyright as a regulation of technology and creative expression. If you're in the Los Angeles area, come hear what Chilling Effects and MythTV have in common.

I've learned that's also been declared a Day Against DRM. I'll see how many DRM'd products I have to avoid on my way there.

Posted by Wendy at 05:58 PM
September 22, 2006
OneWebDay today

OneWebDay, an "Earth Day for the Internet," kicks off today. Celebrate by enjoying the creativity the Internet enables. Post a blog entry or a video; update a Wikipedia entry; remix a music track; learn something new. Tag entries with "onewebday" to let others find them.

In New York, there's also an offline celebration, New York - Wiki

In New York, we'll be having a lunchtime, outdoor event featuring Craig Newmark of Craigslist fame, talking about how the Internet is changing people's lives every day.

Where: The Battery, near Castle Clinton
When: Friday, Sept. 22, noon to 2pm

Visit the onewebday wiki for information about other in-person events.

Posted by Wendy at 08:59 AM
September 16, 2006
ICANN Selection Committee Meets; GNSO Review Out

ICANN's selection committee is meeting in Frankfurt Amsterdam this weekend to choose new Board members, GNSO Council representatives, and interim ALAC members. It's not really correct to call the group a "nominating committee" as ICANN does, since no membership ever gets to vote to accept or reject their "nominees." That said, the secretive process has produced some good selections in the past, along with some not-so-good.

In other news from the void, ICANN has finally released the London School of Economics GNSO Review: report and annexes. Unfortunately, it's only in PDFs that pdftohtml can't successfully convert to text (strange font or something else?) -- so commenting on the report will be more difficult than it should be. [update: poor mechanical OCR here]

I haven't gotten past the opening "Recommendations," but there, I'm encouraged by the report's criticism of ICANN Constituencies -- the artificial interest groups of ICANN participation, in which "intellectual property interests" is of equivalent voice to "non-commercial users." It also makes useful suggestions toward better information dissemination and fixed term-limits for GNSO Councilors. (The GNSO, for those not fluent in ICANNese, is the Generic Names Supporting Organization, the body that's supposed to make policy (by "bottom-up consensus") for top-level domain names.)

Posted by Wendy at 07:43 PM
September 15, 2006
Stop the Data-Grab! Digital Rights Ireland Sues Over Data Retention

Digital Rights Ireland reports that it has launched a legal challenge to data retention laws. They charge that data retention laws -- requiring collection and retention of calling records and Internet communications-related information -- violate data privacy laws and the Declaration of Human Rights.

From the DRI blog:

These mass surveillance laws are a direct, deliberate attack on our right to have a private life, without undue interference by the government. That right is underpinned in the laws of European countries and is also explicitly stated in Article 8 of the European Convention on Human Rights. The Article specifies that public authorities may only interfere with this right in narrowly defined circumstances.

McGarr Solicitors have posted documents filed in the case.

Here in the United States, we don't have data retention laws ... yet. Attorney General Gonzales has been trying to scare ISPs into keeping data, and Congress into laws mandating that they do so. Like the European, he seems to forget that anonymous speech and private association are human rights. Exercise those First Amendment freedoms while you have them -- and use Tor when you don't.

Posted by Wendy at 04:48 PM
September 14, 2006
Classical Music Wants to Be Shared: Isabella Stewart Gardner Museum Podcasts

Boston's Isabella Stewart Gardner Museum has just launched a terrific classical music series: The Concert Podcast: freely downloadable DRM-free music licensed for sharing under a Creative Commons Music Sharing License.

I started with a Schubert Concert, including a piece I'd had the pleasure of hearing earlier this year at the Metropolitan Museum: Musicians from Marlboro playing "The Shepherd on the Rock." While nothing can match hearing chamber music live, a string quartet doesn't fit into my pocket next to the Treo. These podcasts, well chosen and well recorded, help fill the spaces between live concerts. Perhaps they'll even attract new audiences to the live performances.

Congratulations to the Berkman Center's clinical program for helping to get this series online. Here's the podcast feed.

Posted by Wendy at 11:54 PM
September 08, 2006
Facebook: Privacy defaults, tweaks, and user experience

facebook privacy optionsEarlier this week, (the MySpace of college students) launched what it called "two cool features," feeds to track friends' online activities:

News Feed highlights what's happening in your social circles on Facebook. It updates a personalized list of news stories throughout the day, so you'll know when Mark adds Britney Spears to his Favorites or when your crush is single again. Now, whenever you log in, you'll get the latest headlines generated by the activity of your friends and social groups.

To management's apparent surprise, not all users thought these feeds were so cool. Protests were launched, using the feeds to spread their outrage, and users threatened boycotts.

Even though all the information available in "feeds" was information users were already making available to the same set of "friends," feeds felt different. Their tracking of changes from minute to minute, and instantaneous, aggregregate notification must have driven home to users just how much information Facebook had. Now, Facebook has added privacy settings to the feeds, and much of the furor seems already to be dissipating.

It's hard to tell whether this is a victory for "privacy" or not, but we can learn a few lessons from the sequence of events:

  • How we present privacy questions matters. People care about privacy when they see information used/misused in a context that is relevant to them. They didn't mind Facebook's collection of information until they saw it presented in detail that they found intrusive. This is why all the streetcorner questioners who can get passwords for candy bars don't "prove" that privacy is dead -- it's more that they passersby don't think ahead to how that password might be misused. When they see feeds, even of information that was previously public but less easily accessible, some of those same people panic.

    This means that when we're trying to give people privacy options in software, it might not be enough just to set a default and let them root around in configuration menus, or even to offer a checkbox. Instead, we should try to offer scenarios to taking people through the consequences of what checking the box means.

  • Context and granularity matter. When thinking about our information, we don't just have two settings, "public" and "private." Those who spill their lives into Facebook profiles still have expectations of privacy. We might be comfortable sharing information with some people, in some doses, expecting the typical human attention span to shield us from too much probing, but object when that same information is catalogued and read back. This is part of the horror of a wiretap or a secret police file, even if it discloses only innocent activities.

  • Technology matters. Unfortunately, computers are very good at storing detailed information trails for out-of-context playback. Moore's Law and similar growth in storage capacities make it easier to design publicity technologies than to think through their social and legal implications. Facebook still collects this information, and others could scrape its pages to recreate "feeds." Do we want to be putting all that information into their hands?

    Privacy is multifaceted. As a society, we'll need to make social, legal, and technical choices to preserve the privacy that lets us have relationships and communities.

    Posted by Wendy at 12:57 PM
  • September 02, 2006
    How long will BombOrNot last?

    BombOrNotI'm sure I'm not the only person to see Bomb Or Not? Training For Government Agents! and wonder how long it will be before they get a cease-and-desist threat.

    My guess, it won't be HotOrNot, who can recognize a good parody when they see one, but the Department of Homeland Security, which tends to see humor as a security risk.

    DHS has already raised trademark claims against the Federation of American Scientists for, a critique-by-improvement of DHS's anemic They could even crib from this White House complaint about use of the Presidential Seal.

    We need a bit of Franklin D. Roosevelt here: The only thing we have to fear is fear itself. Or as Bruce Schneier puts it, "The surest defense against terrorism is to refuse to be terrorized."

    Posted by Wendy at 11:15 PM
    ICANN: When Contract Means Expand

    ICANN has posted proposed registry agreements for the .org, .biz, and .info registries -- contracts that would allow registry operators to raise prices arbitrarily or introduce tiered pricing, as well as giving incumbents a nearly-perpetual right of renewal. Strangely, given ICANN's mission "to ensure the stable and secure operation of the Internet's unique identifier systems," the new agreements elevate the registries' interests above the stability interests of domain name registrants. Under the proposed contracts, registrants would face considerable uncertainty about the future costs of domain name renewal.

    I submitted comments, included after the jump.

    Were I advising ICANN, I would advise my client against signing these contracts. Were I advising the public, I would advise my client to protest these proposed contracts (as many of the 430+ [now 800+] commenters apiece already have). Representing only myself in this comment, I write to point out a few of the most serious flaws I see in the proposed .biz/.info/.org contracts. (Because the three documents share the operative language, I submit this same comment to each of the dockets. If the numbering differs, I have used that of the .biz agreement.)

    In the previous contracts for these gTLDs, ICANN has contracted for the offering of domain registrations at a price that was capped initially, uniform across names in the registry (except for bulk discount opportunities), and permitted to vary only to the extent that ICANN fees changed. ICANN was contracting for a known service, at known costs. Domain name registrants thus came to expect that they could establish online business and non-commercial presence at names in these gTLDs and renew those names for reasonably stable rates. These contracts, however, do not set prices or permit ICANN consensus policies to do so. They thus permit registries to raise prices uniformly selectively: only for high-value domains, only for renewal of existing domains, or at whim.

    While there is some limited competition for initial registrations (limited not for technical reasons but by ICANN's foot-dragging on opening new gTLDs), once a registrant has chosen a domain, he or she becomes relatively locked into that registry. Even if competition among gTLD registries restricted them from raising initial prices, it would not so limit their renewal pricing. Post-registration preferences become inelastic because a registrant now faces new costs and disruption of communications to change addresses (whether the cost is of sending out global "address change" messages, buying new stationery, or correcting national advertisements on the sides of buses). Opening the door to unlimited raising of prices and differential registry pricing, as these proposed contracts do, thus harms the interests of domain name registrants. Registrants who have established valuable presence at existing domain names risk facing higher prices at the whim of a registry operator. The stability of online identities is jeopardized, as registrants face uncertain renewal costs.

    If the current holders of these contracts are not willing to continue entering names into databases and maintaining those databases for $6 or less an entry, it seems highly likely that other qualified bidders could be found.

    I note that the existing contracts, unlike the proposed renewal contracts, all state that "the decision whether to accept the Renewal Proposal shall be in ICANN's sole discretion." Rather than accept the possibility of unilateral price increases, ICANN should exercise that discretion to reject these proposals and request new proposals (from the existing operators or would-be competitors) that continue to assure domain name registrants of reasonably constant-priced services.

    Further, to preserve the renewal negotiations and the potential competition for renewal contracts as a check on registries, I would recommend dropping the "presumptive renewal" of 4.2. As the proposed contracts stand, even a registry that materially breaches its contractual obligations twice, and cures such breaches only upon court order, is contractually entitled to a renewal contract on terms comparable to those of similar registries. This arrangement leaves ICANN toothless to enforce its contractual rights long-term.

    Given the public nature of these services, I would recommend removal of the "no third-party beneficiaries" clause, (8.7). Sadly, the public cannot rely on ICANN to represent public interests in domain name registration and use. Many would argue that ICANN is already in breach of its 3.2(a) obligation to "operate in an open and transparent manner."

    If I trusted ICANN more, I would also be concerned about the limited definition of "Registry Services" that ICANN is empowered to authorize, and the limited definitions of "Security and Stability." (3.1. (d)(iv)(G)) Under the proposed contracts, it is not a valid objection to a registry's provision of a new Registry Service (recall SiteFinder) that it harms the public interest, imposes unjustified costs on registrants or DNS users, hampers law enforcement, infringes trademark rights, breaches privacy rights, or imposes greater costs on the public than benefits. (3.1 (d)iv)(A)) Moreover, the contracts lock in procedures for approval of new Registry Services while a Policy Development Process on registry services is underway -- short-circuiting ICANN's ongoing public consultation on the subject.

    Finally, I believe the provision permitting the registry to make use of traffic data, 3.1(f) deserves greater public consultation before adoption.

    Domain name registries are a quasi-public resource: the public benefits from being able to register and use stable identifiers for its Internet communications. Leaving so much choice of price and service to the unfettered discretion of a privately controlled Registry under a 6-year contract, presumptively renewed, is against the public interest of domain registrants and DNS users.

    Posted by Wendy at 11:13 PM
    Blog Holiday Over

    Summer's over, and so's the blog holiday. (Not much of a holiday, really; I've been writing about abuses of the DMCA safe harbor and the "fictional friction" of technical protection measures.)

    This fall, I'm teaching Internet Law, continuing my visit at Brooklyn Law School.

    Posted by Wendy at 11:10 PM