Google News now shows more than 300 stories about Spamhaus, most about a proposed court order following a district court default judgment.

To me, the most interesting is the meta-story — why the non-event of a proposed order has the blogs scrambling with claims of constitutional crisis and even the notoriously close-lipped ICANN issuing an announcement “in response to community interest expressed on this topic.”

We’re seeing a clash of cultures between tech and law. The tech world, afraid the law will jump to erroneous conclusions and cripple an anti-spam mechanism, is in turn making some quick but wrong assumptions about the legal process. Happily, there’s enough play in both tech and legal systems to correct for both these errors.

On the legal side, we have a process that has so far aired only one side — because the other is challenging the court’s jurisdiction even to hear the case. Spamhaus, based in the U.K., runs widely-used SPAM blacklists. Marketer e360 Insight sued Spamhaus in an Illinois court to be removed from one of these lists, claiming that its legitimate mail was being blocked (in Illinois) due to Spamhaus’s actions. Spamhaus did not defend the suit, asserting that the U.S. courts lacked jurisdiction.

As often happens in such cases of default judgment, the court took at face value the arguments from the party who appeared and asked for a proposed order. The plaintiff then overreached (as is also common), and proposed that ICANN be ordered to deactivate the Spamhaus.org domain name. The court has not yet acted on plaintiff’s proposed order.

Even if the court were to adopt this order, it would be open to challenge from many angles: ICANN is not a party to the lawsuit who can be bound by an injunction; ICANN has no contractual power to order a domain de-activated; Spamhaus challenges the court’s jurisdiction. In short, as some commentators have recognized,
e360’s broad request is far from an enforceable order shuttering Spamhaus.org.

On the tech side, while loss of a domain name would be painful, as a domain may be the key point of contact for an Internet-based organization, it would not actually stop a newly-relocated spamhaus-is-now-here.info from putting e360 on the very same lists.

It’s clear we have a ways to go in reaching cross-cultural understanding. But I’m also thinking of how we can harness similar tech community outrage against other ICANN actions that have real impact, such as the sluggish process of approving new top-level domains and the shrinking of privacy options for domain name registrants.

Via BoingBoing and Toorcon comes a pointer to a great new HOWTO: How to Speak Anonymously in Public. Alan Bradley and Kevin Flynn apparently gave the talk on memory cloaking with only a laptop and video projection at the podium, tunnelling the talk and slides from a remote location over Tor so the connection couldn’t be traced back to the speakers.

Along with its detailed technical explanation, the guide points to lots of the subtle pitfalls that might trap the tyro anonymous speaker. As Seth has also pointed out, many of the challenges are more social than technical: Programs might leave automatic timestamps in the timezone set on your local machine, or you might be unavailable at times matching sleep patterns on the U.S. East Coast. Your applications might “phone home” for updates, or your real-world friends might all show surprising interest in the anonymous speaker’s subject. Purchasing obscure components or doing research might link you to the subject. Voice distortion software can change the pitch and cadence of your speech, but not unique turns of phrase.

It’s hard to do anonymity well, and it gets harder when governments tap phone and Internet providers and ask for data retention, but it’s also a critical First Amendment value. Wish I could have been there!

Today is DefectiveByDesign’s Day Against DRM. Time to take inventory of your media and electronics and determine how many of them are coded to do someone else’s bidding than yours, their owner. How many of your devices will break if you try to network them with other devices? How much of your media will stop you from playing it where and how you choose? How much will frustrate your attempts to look inside or write your own software?

DRM isn’t working for you, the purchaser/listener/remixer, but for a publisher who wants you to pay and pay again for multiple viewings of your video, or a hardware maker who wants to lock you into its line of incompatible devices. Acceding to these demands will only a next generation of media devices with even less functionality, even more meter-feeding. Instead, ask for electronics and media that meet your needs, and make sure you’re getting what you asked and paid for.

Earlier this week, facebook.com (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:

The Wall Street Journal Online invited me to debate DRM with the MPAA’s Fritz Attaway: WSJ.com - ‘DRM’ Protects Downloads, But Does It Stifle Innovation?. He says it enables “consumer choice”; I say it disables user innovation and technology development.

Mr. Attaway begins: …
The answer to the question, “Is digital rights management being implemented in a positive way?” is a resounding yes. Positive, but not perfect. Let me explain.

Digital rights management is the key to consumer choice. The better the DRM, the more choices consumers will have in what they view, when they view it and how much they pay for it. The only valid criticism of DRM is that some of the DRM technology currently in use is not sophisticated enough. But it is getting better. Users of next-generation DVD technology will have more choices than they do today because the DRM technology will be more sophisticated.

…

Ms. Seltzer responds: …

You raise the example of DVD as a success story, but DVD players have hardly changed in the last decade. True they’ve gotten cheaper, but I still can’t buy one (lawfully) that lets me take clips to create my own movie reviews or “Daily Show”-style send-ups of my favorite films. I still can’t play movies on my GNU/Linux computer. When Kaleidescape tried to build a DVD jukebox to allow people to burn movies to an enclosed hard drive rather than shuffle jewel cases and discs, the company earned high reviews — and a pricey lawsuit.

I’m working on a paper [hence the blog silence] in the same vein, examining the impact of DRM+DMCA on open source software development and technology innovation. The question isn’t only whether DRM can accommodate fair use, as many scholars are now asking and answering equivocally, but whether it permits independent technology development. Many of the current DRM systems and proposed technology mandates could not be implemented in open-source software or open hardware; the DRM restrictions are incompatible with user-modification. I argue that’s too high a price to pay to enable a few more pay-per-use business models.

The University of Michigan Press is looking for a few good tech-bytes — to include in a book of the year’s best technology writing. They’ve launched an open call for nominations, inviting suggestions for the best articles, essays, and blog posts of 2005. These are clueful publishers — instead of suing Google, they’re working to enhance the visibility of their authors on-line and off-.

Here’s a chance to pull together the explanations of technology and its celebrations and criticisms; pieces that sparked an “Aha!” or a good laugh. Since it’s planned for both print and online publication, it’s also a chance to bring the blog-world to those who read only dead trees. I’ll be helping to read the nominated pieces, so I hope you’ll help by suggesting some good ones.

Taking a cue from the open-source movement, we’re asking readers to nominate their favorite tech-oriented articles, essays, and blog posts from the previous year. The competition is open to any and every technology topic–biotech, information technology, gadgetry, tech policy, Silicon Valley, and software engineering are all fair game. But the pieces that have the best chances of inclusion in the anthology will conform to these three simple guidelines:

1. They’ll be engagingly written for a mass audience; if the article requires a doctorate to appreciate, it’s probably not up our alley. Preference will be given to narrative features and profiles, “Big Think” op-eds that make sense, investigative journalism, sharp art and design criticism, intelligent policy analysis, and heartfelt personal essays.

2. They’ll be no longer than 5,000 words.
3. They’ll explore how technological progress is reshaping our world.

If you have a favorite, head over to digitalculture.org to send your suggestions.

Note to self (and Google, which didn’t have any answers on the subject when I looked): To send mail through the Speakeasy mailserver from the Treo, configure Versamail to use port 587, along with ESMTP authentication (in the “Advanced” options).

I had to reconfigure after Versamail munched my old settings.

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.)

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.

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?