Cyberprof Susan Crawford has a nice preview of David Post’s forthcoming work, Mr. Jefferson’s Moose: Notes on the State of Cyberspace.

Jefferson’s moose was a specimen brought to England and assembled there to disprove the notion that America was a land of “degeneracy.” Post and Crawford ask: What would you exhibit from cyberspace to prove its worth to a foreign observer?

I started my cyberlaw class with an exploration of analogy in Reno v. ACLU: What is cyberspace like (a telephone network with dial-a-porn, a radio broadcast, a magazine shop, a city block)? and ended by noting the limitations of any analogy to capture the Internet’s communicative potential. It’s not just “a phone network, with pictures” or “a magazine shop where anyone can publish a zine,” but a new beast with the potential to be those and much more — and that frightens regulators and incumbents who know the old and face competition from the new. So along with analogies to older technologies, we need specimens of what’s possible with the new. Happily, the Net provides us new ones daily — and we don’t even need to pack them for shipment across the Atlantic.

Blogging will be light here while my students take their exams. Wouldn’t want anyone to think there were secret answers hidden in blog entries. But how could I pass up the excuse to post moose photos from Jackson Hole?

Via IP, a fascinating Guardian story on “planespotting”: How planespotters turned into the scourge of the CIA.

Planespotters make a hobby of tracking airplanes by their takeoffs and landings. Using the connectivity of the Internet, they can now build detailed records of flight patterns — including deviations from pattern that secretive government agencies would prefer to hide: the “rendition” of terror suspects to secret camps or torture spots.

The recording of flights by spotters like Paul from places as far afield as Bournemouth and Karachi has unintentionally played a significant role in helping journalists and human rights groups expose the scale of the CIA’s renditions system. But his impact on such international intrigue largely passes Paul by.

Aggregation and enhanced search capability make public things that were once secret by obscurity. The government uses this to its advantage when it tries to purchase large private databases to datamine for suspicious stand-outs, and now it’s feeling the heat on the other side. Why do I suspect we won’t reach a David Brin-like entente?

The recent ICANN meeting in Vancouver touched upon many issues important to ordinary Internet users: privacy in domain name registration; the cost and terms of .com domain names; internationalized domains; introduction of new domain suffixes. But there were few “ordinary Internet users” at the meeting. Few people can roam the globe to keep up with ICANN’s travels, and not many more participate in online forums.

This doesn’t mean that individuals are unaffected by ICANN or uninterested. Collectively, individual users have substantial legal and financial interests in ICANN policies; they are clearly the most numerous affected class. However, they tend to have many diffuse interests, not one sharp connection. Unlike those whose businesses depend on ICANN-related issues, many individuals may not feel their personal stakes justify high-intensity involvement with the ICANN process. How, then, does ICANN listen to those voices?

So far, not well. This question has been plaguing ICANN from the beginning, when it established then tore down an individual voting membership. In place of votes for board seats, it gave at-large parties the ALAC, but ALAC has been struggling to be heard within ICANN and working to get in better touch with the individuals.

Why don’t we hear more from the individual Internet users? First, we should dismiss the impulse to say “if they don’t speak up, it must not matter.” It matters to the individual if her web-hosting-plus-domain-name package increases in price without changing in service offered; it matters to the individual if he can’t register a domain name for his weblog without making his address and telephone number public; it matters to the (non-U.S.) individual if she can’t type domain names in her native character set. But all these users all have other demands on their time, and we need to convince them it’s worth their time at least to tell ICANN/ALAC about their concerns. To do that, we need to be able to say that ICANN is listening — Not necessarily that every concern will lead to a change in policy, but that the aggregated concerns will at least inform policy discussions and form part of the “consensus” that’s supposed to guide ICANN policy.

At the moment, I can’t honestly encourage groups to join ALAC structures, but I can ask that they speak up so we can tell ICANN what it’s failing to hear.

I speak as an individual, and not for ALAC.

No sooner do I return from ICANN Vancouver and the spotty Internet access of travel than I find blogs bristling with talk about FON, Martin Varsavsky’s project to bring wifi sharing to the masses: Open your wifi access point to the FON-using public, and get access to theirs wherever you go. Or, if you’re a “Bill” rather than a “Linus,” you can be paid for offering access. Either way, you win, getting more value out of the Internet connection you’ve already paid for.

It’s exactly this kind of creativity we shouldn’t allow network monopolies to squash with intrusive regulations. As for frequent travelers, the FON FAQ has your number:

Some Linuses have been wondering if they will be able to connect to access points in other countries? The answer is YES.

Lighthouse on Vancouver Harbor, as seen on a chilly morning run.

At ALAC’s meeting with the ICANN Board, in response to criticism of the price increases built into the Verisign settlement agreement, Paul Twomey suggested that the 7% annual increase had been blessed by U.S. regulators. He said, for the first time, that ICANN had asked the Department of Commerce, which had referred the question to the Department of Justice for competition analysis. The same report was claimed as justification at the public forum the next day.

If these reports are going to be used as a basis or justification for ICANN action, they should be disclosed to the ICANN public. If not, a FOIA request will be in order.

See also John Levine’s notes.

For three years, I’ve been a member of ICANN’s “Interim” At-Large Advisory Committee, ALAC. At this Vancouver meeting, for the first time, the ICANN Board met with us, and Bret captured it on mp3 for podcast.

ALAC criticized ICANN’s proposed settlement with Verisign, and then spoke about the problems with the current structure for at-large participation.

See, if you’re an individual interested in the management of domain names and Internet infrastructure, you can’t participate directly in ICANN, the Internet Corporation for Assigned Names and Numbers. Instead, you have to form an organization to apply to ALAC for recognition as an “at-large structure”; gather with other such structures to form a “regional at-large organization”; and as a RALO, elect members to the advisory committee that can make statements it’s not clear anyone listens to. Although individual board members assured us that they do listen to ALAC statements, it’s not a terribly attractive prospect for individuals or organizations looking to deploy scarce time and resources.

ICANN, however, has been using the ALAC to say that it offers representation to individual Internet users. If it wants to claim public support, it must offer the public a more meaningful opportunity for participation. ALAC, as currently structured, is not that public voice. As I said to the Board, I would rather see ALAC disbanded than used as this type of window-dressing. Better still would be to restructure so that the Internet-using public had a real role in ICANN process.

Update: Susan Crawford was listening, and as a newly-selected member of ICANN’s Board, will be in a position to help untangle the knots.

Michael Geist points to a new decision from Canada’s Supreme Court ruling that Lego couldn’t use a claimed trademark on the interlocking shape of its blocks to insulate them from competition after its patent expired. The ruling echoes a recent U.S. Supreme Court decision, TrafFix Devices Inc. v. Marketing Displays Inc. (2001), that an expired patent couldn’t be extended by a claim that the design had acquired trade dress distinctiveness.

Lego (Kirkbi) had patented the Lego system of interlocking blocks and now claimed that even after the patent expired, the “distinctive orthogonal pattern of raised studs distributed on the top of each toy-building brick” had become “LEGO indicia” due protection as an unregistered trademark. Without this protection, Kirkbi protested, Mega Blok would be able to free-ride on the popularity established by Lego’s hard work and reputation for quality.

One must start from the problem the appellant faced when its patents expired. …[T]he very cleverness and flexibility of LEGO technology, of the combination of studs on top of the brick and tubes under it, had almost turned “LEGO” into a household word. Source and product became identified. LEGO bricks, for many, came to designate these small colourful building blocks, with their clever locking system. But when the patents expired, the LEGO technology fell into the public domain. The LEGO name, whether on the product, on its packaging or in its advertising, remained protected, but the monopoly on the wares themselves was over. The monopoly had been the key to the building up and preservation of LEGO’s market share, and so Kirkbi employed a number of different means to protect it, one of which was the assertion of a trade-mark.

The court properly recognized that the patent confers a limited monopoly. In Canada, as in the United States, patent protection is temporary: “Patent protection rests on a concept of a bargain between the inventor and the public. In return for disclosure of the invention to the public, the inventor acquires for a limited time the exclusive right to exploit it.” Entry into the public domain after the patent’s expiration is a core part of the public-private bargain — a bargain that can’t be abrogated by trademark claims.

True, Kirkbi had built a Lego empire, but as an empire founded on the functional properties of Lego’s interlocking bricks, its moats came with an expiration date. “Free riding” after that date benefits society by giving more companies the chance to build interlocking bricks, giving more kids (and non-kids) access to reasonably priced building kits.

The fact is, though, that the monopoly on the bricks is over, and MEGA BLOKS and LEGO bricks may be interchangeable in the bins of the playrooms of the nation – dragons, castles and knights may be designed with them, without any distinction. The marketing operations of Ritvik are legitimate and may not be challenged under s. 7(b) [of the Trade-marks Act].

This reasoning, like the similar U.S. TrafFix decision, reflects a general feature of Anglo-American intellectual property law: Intellectual creations generate value that is shared between the creator and the public. We do not say, “if value then right to exclude,” but rather that creators accept the bargain of limited-scope rights when they create.

Let us not forget these principles in the copyfight. Though the term of copyright may never expire in our lifetimes, its scope is cabined by fair use, first sale, and limits on the activities copyright reaches. The copyright bargain authors accept when they write and publish does not include the right to charge for every search index or to break your computer in the name of “securing” music.

For years, the entertainment industry’s DRM strategy has seemed to follow the old story about how to boil a frog: Start it going in a pan of cold water and gradually turn up the heat.

So it is with digital rights management: Start consumers off with restrictions only the techiest edge-cases among them will notice, then quietly increase control. Apple’s iTunes, for example, has downgraded the behavior of already-purchased music files. One day you could burn a playlist 10 times, the next day only seven.

Once you’ve accepted that “your” music comes with only a set of pre-defined uses — and not any personal use you can invent — you might not notice as you lose the ability to do your own format-shifting. Just as fans once re-purchased music as it moved from 45 to LP to CD, perhaps they could be conditioned not to complain if they were made to re-license when they replaced computers and stereo components. Instead of selling CDs, then, marketers will then be able to slice up the “music experience” and license pieces back to the fans whose rights they’ve taken, ideally for more than the one-time profit on a CD.

Until Sony BMG turned up the heat too fast with its rootkit. As eHomeUpgrade puts it, this “DRM Nightmare” has been good for consumer rights.

Given that Sony has taken to installing spyware to protect their music, you may be wondering why this episode in the DRM struggle has been good for the consumer. Simple: consumer awareness. For the past several years, much has been made of viruses and spyware and their adverse effects on our computers. The industry designed to stop these threats brings in tens of millions of dollars every year to stop these vicious pieces of software. The average consumer understands what a virus or spyware is. However, stop most consumers and ask them to explain DRM and you’ll probably get a blank stare. Up until now, the consumer has been uneducated on what DRM is and how it will affect their daily lives. The major music and movie studios have been fine with this; and now that awareness is changing.

The average fan, who may never have been blocked from playing music from the (new) Napster music store on an iPod; who may never have tried to create her own version of the Daily Show from a TiVo-to-Go’d evening news program but been stymied by copy controls; suddenly has a vivid example of how DRM takes your music — and your computer — away from you. CERT, the US Computer Emergency Response Team, is advising
users, “Do not install software from sources that you do not expect to contain software, such as an audio CD.”

I think the frog may be ready to jump out.

Amazon recently introduced the Amazon Mechanical Turk (in beta, naturally), an interface by which programmers can insert tasks for humans into their code. Amazon will turn around and farm the tasks out to people willing to determine “which of these photographs best resepresents the ‘Psychic Believers’ storefront” for a few cents a pop.

All software developers need to do is write normal code. The pseudo code below illustrates how simple this can be.

 read (photo);
 photoContainsHuman = callMechanicalTurk(photo);
 if (photoContainsHuman == TRUE) {
   acceptPhoto;
 }
 else {
   rejectPhoto;
 }

There’s evidently an eager pool of people ready to become subroutines — overwhelming the beta site on which Amazon is using the identifications to match storefronts to the “Find it on the block” feature of its A9 search.

For the humans in the loop, completing these “human intelligence tasks” isn’t a road to riches. If you could match 3 images a minute, you’d barely make minimum wage. On the other hand, it might be more profitable than doodling during a dull conference call.

For developers of hybrid applications, Amazon’s offering an infrastructure for outsourcing: a generic API to call upon an army of workers ready for photo matching, distributed proof reading, or CAPTCHA deciphering. For Amazon, it’s a commission each time someone uses their matchmaking services.

Funny, science fiction writers told us that we’d become part cyborg by implanting computers into ourselves and harnessing their processing power for human goals. I guess we’re entering the Matrix instead.