May 12, 2011

Debugging Legislation: PROTECT IP

Filed under: Chilling Effects, censorship, copyright, domain names, events — wseltzer @ 10:45 am

There’s more than a hint of theatrics in the draft PROTECT IP bill (pdf, via dontcensortheinternet ) that has emerged as son-of-COICA, starting with the ungainly acronym of a name. Given its roots in the entertainment industry, that low drama comes as no surprise. Each section name is worse than the last: “Eliminating the Financial Incentive to Steal Intellectual Property Online” (Sec. 4) gives way to “Voluntary action for Taking Action Against Websites Stealing American Intellectual Property” (Sec. 5).

Techdirt gives a good overview of the bill, so I’ll just pick some details:

  • Infringing activities. In defining “infringing activities,” the draft explicitly includes circumvention devices (”offering goods or services in violation of section 1201 of title 17″), as well as copyright infringement and trademark counterfeiting. Yet that definition also brackets the possibility of “no [substantial/significant] use other than ….” Substantial could incorporate the “merely capable of substantial non-infringing use” test of Betamax.
  • Blocking non-domestic sites. Sec. 3 gives the Attorney General a right of action over “nondomestic domain names”, including the right to demand remedies from (A) domain name system server operators, (B) financial transaction providers, (C), Internet advertising services, and (D) “an interactive computer service (def. from 230(f)) shall take technically feasible and reasonable measures … to remove or disable access to the Internet site associated with the domain name set forth in the order, or a hypertext link to such Internet site.”
  • Private right of action. Sec. 3 and Sec. 4 appear to be near duplicates (I say appear, because unlike computer code, we don’t have a macro function to replace the plaintiff, so the whole text is repeated with no diff), replacing nondomestic domain with “domain” and permitting private plaintiffs — “a holder of an intellectual property right harmed by the activities of an Internet site dedicated to infringing activities occurring on that Internet site.” Oddly, the statute doesn’t say the simpler “one whose rights are infringed,” so the definition must be broader. Could a movie studio claim to be hurt by the infringement of others’ rights, or MPAA enforce on behalf of all its members? Sec. 4 is missing (d)(2)(D)
  • WHOIS. The “applicable publicly accessible database of registrations” gets a new role as source of notice for the domain registrant, “to the extent such addresses are reasonably available.” (c)(1)
  • Remedies. The bill specifies injunctive relief only, not money damages, but threat of an injunction can be backed by the unspecified threat of contempt for violating one.
  • Voluntary action. Finally the bill leaves room for “voluntary action” by financial transaction providers and advertising services, immunizing them from liability to anyone if they choose to stop providing service, notwithstanding any agreements to the contrary. This provision jeopardizes the security of online businesses, making them unable to contract for financial services against the possibility that someone will wrongly accuse them of infringement. 5(a) We’ve already seen that it takes little to convince service providers to kick users off, in the face of pressure short of full legal process (see everyone vs Wikileaks, Facebook booting activists, and numerous misfired DMCA takedowns); this provision insulates that insecurity further.

In short, rather than “protecting” intellectual and creative industry, this bill would make it less secure, giving the U.S. a competitive disadvantage in online business.

UPDATE: Sen. Leahy has posted the bill with a few changes from the above-linked draft (thanks Ryan Radia for the link).

December 11, 2009

The Goldilocks Problem of Privacy in Public

Filed under: commons, events, musings, networks, politics, privacy — wseltzer @ 8:55 am

One of the very interesting sessions at Supernova featured a pair of speakers on aspects of privacy and publicity: danah boyd on “visibility” and Adam Greenfield on “urban objects.” Together, I found their talks making me think about the functions of privacy: how can we steer the course between too much and too little information-sharing?

danah pointed out the number of places we don’t learn enough. We “see” others on social media but fail to follow through on what we learn. She described a teen whose MySpace page chronicled abuse at her mother’s hands for months before the girl picked up a weapon. After the fact, the media jumped on “murder has a MySpace,” but before, none had used that public information to help her out of the abuse. In a less dramatic case of short-sighted vision, danah showed Twitter users responding to trending black names after the BET Awards with “what’s happening to the neighborhood?” Despite the possibilities networked media offer, we often fail to look below the surface, to learn about those around us and make connections.

Adam, showing the possibilities of networked sensors in urban environments, described a consequence of “learning too much.” Neighbors in a small apartment building had been getting along just fine until someone set up a web forum. In the half year thereafter, most of the 6 apartments turned over. People didn’t want to know so much about those with whom they shared an address. Here, we might see what Jeffrey Rosen and Lawrence Lessig have characterized as the problem of “short attention spans.” We learn too much to ignore, but not enough to put the new factoid in context. We don’t pay attention long enough to understand.

How do we get the “just right” level of visibility to and from others? and what is “just right”? danah notes that we participate in networked publics, Helen Nissenbaum talks of contexts. One challenge is tuning our message and understanding to the various publics in which we speak and listen; knowing that what we put on Facebook or MySpace may be seen by many and understood by few. Like danah, Kevin Marks points out the asymmetry of the publics to which we speak and listen.

Another challenge is to find connections among publics and build upon them to engage with those who seem different, Ethan Zuckerman’s xenophilia. The ‘Net may have grown past the stage where just Internet use could be conversation-starter enough but spaces within it take common interest and create community. Socializing in World of Warcraft or a blog’s comments section can make us more willing to hear our counterparts’ context.

Finally, our largest public, here in the United States, is our democracy. We need to live peacefully with our neighbors and reach common decisions. Where our time is too limited to bestow attention on all, do we need to deliberately look away? John Rawls, in Political Liberalism, discusses political choices supported by an “overlapping consensus” from people with differing values and comprehensive views of “the good.” I wonder whether this overlapping consensus depends on a degree of privacy and a willingness to look away from differences outside the consensus.

November 29, 2009

Supernova

Filed under: events, networks — wseltzer @ 2:53 pm

Supernova This coming week, I’ll be reporting from Supernova, Kevin Werbach’s excellent conference on networks, communication, and the things we do with them. The great thing about this gathering is the one that makes it hardest to describe — it takes a broad view of “Networks” and brings together people with a wide range of perspectives on their use. I’ll hope to capture some of that energy here.

May 8, 2009

Theater of the DMCA Anticircumvention Hearings

Filed under: DMCA, copyright, events — wseltzer @ 8:30 am

Every three years, as mandated by Congress in Sec. 1201(a)(1)(C) of the Digital Millennium Copyright Act, the Librarian of Congress and Register of Copyrights conduct a rulemaking on exemptions from the DMCA’s prohibition on circumvention of access controls protecting copyrighted works. This year’s revival opened in Stanford, then moved here to Washington DC for a three-day run.

Now Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works may not sound like a Broadway hit, but there was plenty of drama (for the copyright geek, at least). I live-tweeted and Identi.ca-posted the hearings, and offer a few highlights from the show here:

As at past runs (2000, ‘03, and ‘06), DVD’s CSS technological protections were the star attraction. Film and media educators, librarians, filmmakers, and creators of transformative works argued that they should be permitted to circumvent CSS to take DVD clips for fair and non-infringing purposes: film studies, media literacy, classroom teaching of the law or medical ethics, creation of commentary in the videographic “language” of the works to which they respond.

Rebecca Tushnet, law professor and founder of the Organization for Transformative Works called the anticircumvention rule a modern-day literacy test or poll tax: law-abiding creators are chilled by the welter of rules seemingly designed to privilege some users over others. Francesca Coppa and Tisha Turk showed the direct impact of the circumvention rule on women and minority creators offering alternative readings of mainstream culture, while educators noted that a too-narrow exemption might let teachers make art with media clips but forbid students from using the same techniques after graduation.

The hearings’ setup is a perfect theater of the absurd: First, the LOC is authorized to exempt non-infringing users of “classes of works” from the circumvention prohibition, but not to legalize the tools needed to circumvent access controls (which are prohibited by 1201(a)(2)). That leaves all participants dancing around the question of how users are to exercise their rights, if granted — “surreal,” as Jon Band put it. Likewise, we all ignore the ready availability of DeCSS and the near-instant posting of DRM-free versions of anything issued in “protected” format.

Then Steve Metalitz, representing a Group of 9 copyright industries, argued that the proponents of an exemption were taking the law too seriously if they were being chilled by the remote threat of an anticircumvention lawsuit. Was he really advocating that we disregard the law??

The proceedings jumped the line to farce when Fritz Attaway and a colleague from the MPAA pulled out a cinematic demonstration of just how to camcord a movie from your television screen. (You start with a $900 HD video camera, a tripod, a flat-screen television, and a room that can be completely darkened.) Tim Vollmer captured the whole scene on a video of his own. Mind you, this is the same industry that has lobbied to make a crime of camcording in movie theaters, telling us how to frame shots properly from the television. (As Fred Benenson notes, they’re also demonstrating DRM’s impossibility of closing the “analog hole.”)

Finally, Bruce Turnbull, representing DVD CSS-licensing body, DVD-CCA, said we were all in the wrong place (LOC, rather than Congress) talking about the wrong subject. 1201 isn’t a copyright protection, but a technology protection, aimed at protecting the “commercial viability of the technological protection measure.” This may be operationally true, but it would sure surprise many in Congress who put anticircumvention into Title 17.

Other acts in the drama included Chris Soghoian’s argument for access to media after authentication servers go defunct; and Alex Halderman and Blake Reid’s arguments that security researchers should be able to investigate the hazards of DRM to personal computer security. Up today: eBooks, dongles, and cell phones.

Other reviews: Pat Aufderheide, Rebecca Tushnet, and Temple’s Media Education Lab live twitter-stream

August 15, 2008

Federal Circuit Confirms Key Free Software Licensing Practice

Filed under: code, copyright, events, law, open — wseltzer @ 2:08 pm

The Federal Circuit held this week in Jacobsen v. Katzer, that Java Model Railroad Interface author Robert Jacobsen’s release of software under the Artistic License gave him the right to sue for copyright infringement those who distributed modified JMRI software without obeying the conditions of its license. The decision confirms an important cornerstone to many of the open source and free software licenses: Taking the work without accepting its license’s conditions is an infringement of copyright, subject to all of copyright’s enforcement options.

Users of free and open source licenses, or Creative Commons licenses for non-software works, offer their works to the world on a non-exclusive basis on a set of conditions. In the Artistic License, those conditions are:

provided that [the user] insert a prominent notice in each changed file stating how and when [the user] changed that file, and provided that [the user] do at least ONE of the following:

a) place [the user's] modifications in the Public Domain or otherwise make them Freely Available, such as by posting said modifications to Usenet or an equivalent medium, or placing the modifications on a major archive site such as ftp.uu.net, or by allowing the Copyright Holder to include [the user's] modifications in the Standard Version of the Package.

b) use the modified Package only within [the user's] corporation or organization.

c) rename any non-standard executables so the names do not conflict with the standard executables, which must also be provided, and provide a separate manual page for each nonstandard executable that clearly documents how it differs from the Standard Version, or

d) make other distribution arrangements with the Copyright Holder.

If you accept the conditions of the public license and follow them, as by making source code available and giving clear notification of changes from the original, your reuse of the original copyrighted work is licensed, no further action required. If you can’t work with the conditions of the public license, you’re always free to contact the copyright holder to negotiate alternate terms. What Jacobsen v. Katzer confirms, however, is that you’re not free to disregard the license conditions and yet claim your redistribution of the copyrighted work is non-infringing.

License v. Contract: Katzer, the taker who didn’t follow license terms, had argued that JMRI could sue only for breach of contract. The court explicitly disagreed. This is significant for licensors because copyright infringement is both simpler to prove: show unlicensed copying and substantial similarity to the original, rather than acceptance of a contract and damages from breach of its terms; and offers benefits such as statutory damages (no proof of loss required) and presumptions of “irreparable harm” that let the licensor get a preliminary injunction against continued infringing distribution.

Economics: The decision recognizes the economic advantages to choosing non-monetary forms of “compensation” for use of a publicly licensed work: “Copyright licenses are designed to support the right to exclude… The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition.” “The attribution and modification transparency requirements directly serve to drive traffic to the open source incubation page and to inform downstream users of the project, which is a significant economic goal of the copyright holder that the law will enforce.” The law does not mandate these terms by default, but if a copyright holder chooses to apply them to make his works more readily available on non-dollar terms, the law will enforce them.

Anti-FUD: Finally, the decision should help clear some of the “fear, uncertainty, and doubt” that opponents of free software try to sow around free and open source licenses. They may rarely have been tested in court because parties prefer to negotiate better solutions between themselves, but when tested, the licenses do hold up, to enforce the terms their users intend.

See also NYT, Lessig, WSJ.

May 20, 2008

Berkman@10, WebN.0, CFP

Filed under: events, law, networks — wseltzer @ 12:25 pm

Berkman@10 was wonderfully Twittered, Flickrd, and blogged, with technology enhancing the in-person connections.

Next stop, CFP.

June 21, 2007

ORG Report: E-Voting Is Broken in the UK

Filed under: events — Wendy @ 2:31 am

Slow. Expensive. Unreliable. Unverifiable.” Those don’t sound like the specs you’d put in a procurement document for a system undergirding electoral democracy, but they’re the words Jason Kitcat used repeatedly to describe what Open Rights Group found when it observed the use of e-voting in England and Scotland’s pilot trial of the technologies in May 2007.

Speaking at the
release of ORG’s election report, Kitcat described failures that ORG’s volunteer observers saw or had reported to them. In Rushmoor, a candidate reported that the online ballot mis-identified his opponent’s party affiliation. In Breckland, a manual recount of non-electronic ballots initially counted by computer turned up more than 50% more votes than the e-count. At least Breckland had a non-electronic ballot to fall back upon. In fully electronic systems being adopted in other districts, a “recount” can only repeat the same tally of bits, with no certain way to detect improper recording or tampering.

ORG concludes that, given the problems observed and the questions remaining unanswered, it cannot express confidence in the results declared in areas observed. Given these findings, ORG remains opposed to the introduction of e-voting and e-counting in the United Kingdom.

Unfortunately, but unsurprisingly, ORG’s findings mirror those of EFF and others regarding United States deployment of e-voting. In a process led by vendors, veiled in proprietary trade secrecy, with inadequate attention to the security and verification required for confidence in democratic elections, e-voting and non-transparent e-counting do not serve the American or British citizenry. ORG is taking great steps to expose the flaws and push for more accountable voting.

June 11, 2007

Kudos for Bloomberg

Filed under: events — Wendy @ 5:17 am

I hope there’s political reward for refusing to prey on misguided fears, because Michael Bloomberg certainly seems more sensible than his predecessor in that regard. He’s earned points with me, at least, with this response to alleged JFK terror threats.

“There are a lot of threats to you in the world,” Mr. Bloomberg said, listing a few, like heart attacks and lightning strikes. “You can’t sit there and worry about everything. Get a life.”

Via NYT

May 10, 2007

WWW2007: Open Access and its Benefits

Filed under: code, commons, events — Wendy @ 1:48 pm

At the World Wide Web Conference, Building a Semantic Web in Which Our Data Can Participate panel. A few notes, loosely joined.

Open Street Maps generates and annotates street maps from open sources of data. In the UK and Canada, unlike in the U.S., street map data is protected by Crown Copyright, so folks who want to annotate maps generally can’t. Can we compare the range of map-based products available between US and UK/Canada to see whether openness or closure is better for this data, for the public? It would cost $400,000CAN to collect all the maps of Canada from official sources, an audience member says, and even then you wouldn’t be allowed to post and annotate them. In the US, $30 buys them all on a CD, in the public domain.

Freebase aims to create a meta-database of free information that can connect multiple sources of information. Jamie Taylor positions free information in Geoffrey Moore’s terminology of core versus context. If data is not your core competency, then you should open it up, let the community contribute to your costs of maintaining it — and helping you to find new uses for it. Along the business lifecycle, opening (or modularising) your data can allow you to focus on the core where you have comparative advantage, and force weaker competitors to move there too.

With collaborative databases, questions of the trustworthiness of the data come to the fore. Metadata becomes even more important, particularly metadata about origin, as well as validation by corroboration among multiple datasets. Freebase uses internal foreign keys to trace the source of datasets.

And thinking about the validity of contributed data can make us think about better ways to validate internally sourced data too. Can we trace its origins, compare it to others’ measurements? Can we build in the metadata fields that allow us to rate the trustworthiness of elements and collaborate to focus on the weak spots? Defensive programming is good for everyone’s data, even our own.

Peter Murray, talking about open access to scientific data, gives the example of PubChem. Before PubChem, each chemical supplier claimed copyright and proprietary interests in its catalogues. Now, if you’re not in PubChem, you might as well not exist, so they’ve opened up, opening access to chemical information as well as expanding their markets.

Just found a PDF of presentations.

November 7, 2006

Election Day 2006

Filed under: events — Wendy @ 7:44 am

Please vote! As you make your way to the polls today, Dan Gillmor posts a helpful guide to polling-place photography laws, from Stanford’s cyberlaw clinic, so citizens with cameras can help document the state of the process.

1-866-OUR-VOTEIf you don’t know where your polling place is, the League of Women Voters’ Vote411.org gives an interactive lookup, along with information about state-by-state ID requirements and election law. Demand a real (not provisional) ballot if you’re entitled to one.

Finally, if you do encounter problems voting, call the Election Protection centers, 1-866-OUR-VOTE, where volunteers will be tracking and responding to problems, including those of electronic voting machines. I’ll be listening in NY.

While hoping there will be few, VotersUnite and EFF are also tracking e-voting irregularities.

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