by Farhad Manjoo/Salon (sub req or watch ad).

"We use the Net as a lifeline," George says. "For anybody for whom this isn't their native country, you'd understand."

But Comcast, the company that provides George's high-speed Internet service, didn't understand. Last August, the company sent him a letter telling him to quit it -- he was using the Internet too much. The firm said he was violating Comcast's "acceptable use" policy, that he was somehow abusing his service. This surprised George, because as far as he knew he wasn't doing anything illegal or unseemly online -- "We're not using porn sites," he says -- and his contract with the firm didn't spell out any limits on his Internet use. When he called the company, it gave him the "runaround" -- nobody would tell George specifically what he should do to bring his use back in line with Comcast's policies, other than that, as a general matter, he ought to consider using the Internet much, much less.

Even if he was using porn sites, it's not illegal. The fact that Comcast would monitor his use and then tell him he was using his service too much when it's an unlimited service is disconcerting.

George is not alone. Since the summer, Comcast has warned hundreds, possibly thousands, of customers of potential service termination due to high Internet use. The customers who receive these letters, people who'd always been told that their Internet service was "unlimited," find themselves in a Kafkaesque comedy of errors: The customers say that Comcast tells them they're using the service too much, but it won't give them any meaningful measure of how much is too much.

But it gets worse, Comcast has clamped down on VPN system use by customers, their TOS says no to P2P of any sort, and they allowed AOL to sell it's high speed internet service over Comcast lines but only if they did not offer streaming video that directly competed with Comcast's offerings, and when other Comcast competitors and consumer groups demanded to have the FCC look at Comcast's secret deals as part of the Disney Merger, the CEO called Michael Powell and the issue was dropped.

They are anticompetitive and working hard to maintain their monopoly services, among other things, by hiring Victoria Clarke, Donald Rumsfeld's former spokeswoman, and Lorine D. Card, the sister-in-law of Andrew Card, George W. Bush's chief of staff to remain exceedingly well connected to top government. Keeping the internet open and unrestricted is becoming more and more worrisome.

as noted by Avi Rubin (link via Ed Felten, who by the way, has been hitting it out of the ball park on a daily basis for the past month and a half with the most fascinating posts - he must have had a restful holiday break...).

Anyway, check out Rubin's story. It points to things that are better than expected, or worse, with the Diebold voting machines, and things we need to keep an eye on, like procedures between the system and those controlling the system, so that security is maintained. But one interesting point he noted is that voters overall loved the machines, saying they were easy to use. Though he concludes that this view of an easy-to-use machine may make it much more difficult to fight the underlying, and more invisible problem, of the security and accountability issues with the machines and overall system, which he also found during his judging yesterday.

Report Raises Questions About Fighting Online Piracy by John Schwartz/NYT is about the Committee for Economic Development report that just came out (Susan Crawford was on this project too, so you know it's be well considered): "Promoting Innovation and Economic Growth: The Special Problem of Digital Intellectual Property." (Note it's a pdf.)

The article says the report concludes the entertainment industry's pursuit of tough new laws to protect copyrighted materials from online piracy is bad for business and for the economy.

The report recommends:

1. Because quick legislative or regulatory solutions for the problem of digital copyright protection pose risks to innovation and economic growth, and are likely to have unintended consequences in a period of rapid technological change, we should move slowly. Our first concern should be to "do no harm." We should dedicate the next two years to attempting to build consensus about the appropriate role in the digital age for traditional legal safety valves that balance the exclusive rights of creators in copyright regimes with users' rights. The Digital Connections Council looks forward to facilitating this national and international dialogue.

2. The development and testing of new business models for the distribution of creative content should be given the highest priority by the content industries. We should not turn to law or regulation to protect any particular business model.

3. Existing solutions to the issue of unauthorized uses, such as enforcement and education, should continue to be explored.

4. We recognize the need for digital rights management (DRM) systems that will allow creators to be rewarded for their efforts. We are skeptical about government-mandated DRM, and we recommend that manufacturers not be required to build in mandated copy protection technologies. But DRM systems provide a useful "speed bump" for consumers by inhibiting unauthorized uses of materials. During this period of consensus building about "safety valves" in intellectual property law, we encourage continued experimentation in private DRM systems. In particular, the capacity of such systems to accommodate users' rights traditionally allowed under intellectual property law needs to be further explored so that the appropriate copyright balance can be maintained. If government-mandated systems are proposed, they should be evaluated on the basis of their capability to maintain such a balance and their convenience for consumers. Consumers should play a substantial role in evaluating and approving mandated technological protection systems.

5. Market-based economic tools that provide incentives for copyright-holders to facilitate follow-on innovation should be considered--including measures to provide earlier dedication of copyrighted materials to the public domain.

And Conclusion:

We are sympathetic to the problems confronting the content distribution industry. It is beyond question that this industry faces real problems that deeply affect its future. But these problems -- perfect copies of high-value digital works being transmitted instantly around the world at almost no cost -- require clear, concentrated thinking, rather than quick legislative or regulatory action. As Thomas Edison said: "There is time for everything." Given the present limitations on bandwidth, the immaturity of many technical protection systems, and the inevitable unforeseen consequences of governmental actions, there is time to lay a stable foundation for intellectual property rules in the digital world.

Given CED's mandate, the Digital Connections Council has attempted to examine the current digital copyright issues within the context of concern for the overall economic health of this country. We believe this economic perspective -- and in particular an understanding of the sequential nature of innovation -- has not been adequately taken into account in the public debate. We also believe it is not too late for thoughtful discussion to find solutions that will prove broadly acceptable and encourage self-enforcement rather than an increase in litigation or regulation. It will be essential for thoughtful and inventive key stakeholders to sit down together to work through these problems. The Digital Connections Council looks forward to joining in such discussions and hopes this report will provide a helpful perspective.

Let's hope stakeholders includes the people formerly known as consumers.

I wonder if this case, and the decision in favor of Berkshire Information Systems against competitor, Inquiry Management Systems, won't cause more support for HR 3261. That's the bill that would make up a whole new sort of intellectual property protection for databases, and is...

backed by big database companies like Reed Elsevier and Thomson but opposed by Amazon.com, AT&T, Comcast, Google, Yahoo and the U.S. Chamber of Commerce....

If IMS had won on its DMCA arguments and if the decision had been upheld on appeal, the case would have significantly expanded the scope of legal protection that database owners enjoy.

Let's not allow the bill to pass that would significantly expand the scope of legal protection that database owners enjoy.

Seth Schiesel/NYTimes says Bram Cohen's BitTorrent represents the next wave for file sharing. BitTorrent is an amazing way to distribute huge files, using P2P to spread out the bandwidth across users. I tried it last summer, in an experiment to see how it worked. The process was tricky, and I don't think impatient or inexperienced users would find it easy, and the fact that it took 36 hours to download one 2 gb file was not attractive. However, it will become more attractive in the future, as people get true broadband connections, and have equal speeds moving data up and down (most home users have midband connections, where there is often double the speed downloading, as opposed to uploading, which speaks to the ways BB providers view "consumers" which is as receptacles, who therefore need mostly down speeds, where up really only for email, right? I mean, you don't think you really need to send anything else out from your system do you? If so, you must be a business user and therefore, get on a different BB plan...).

BitTorrent works by having every downloader's system simultaneously work as an uploading system (you can stop uploading when you are finished downloading, but you can't not upload while your download is in process). Since this is the case, slow uploading speeds mean your whole transfer is slower than if you were just downloading. These files are called seeders. One example of BitTorrent use might be by a software company, with webbased distribution, that wanted to make available it's programs on either a trial or free basis. Another might be a digital library or academic institution that wanted to distribute large research files or databases of information and graphics.

At the Digital Media Summit in NY the other day, Charlie Nesson, Director of the Berkman Center at Harvard, presented a system where "Interdiction" might be used as a form of self-help by content makers to disrupt the transmission of copyrighted media files. His logo was a crow (or what looked like a crow) with a long black beak, holding a seed.

This system would work to the find a middle ground between a DRM/IP regime lockdown, and what Nesson referred to as a "disaster" for the content industry, though I would argue that movies/TV/Cable are different that other media, and each media needs to be considered on it's own, when thinking about these issues. In fact, I think that low quality video files are considered to be of just-okay quality for people wanting a quick glance at content, and so they may download something on one of these networks, but that people really want the big rich high quality screen experience, hence video's inability to kill the experience or desire by people to go out to see a big screen movie, and people aalso love watching DVD's on plasma, because of the rich experience... downloaded files on little screens are just not nice in that way. Imagine watching Lord of the Rings on a five inch screen. But as bandwidth grows, it will become more of an issue, but what if these little files are loss leaders to entice people into the theaters, to buy DVD's or high quality downloads with interesting value added stuff?

The Interdiction system is designed to be a speed bump for those who would pirate, and for those who have more money than time, and would otherwise pay for their files (the system is associated with Scenario Three of the Harvard/G2 Five Scenarios for Digital Media in a post Napster world paper) . It is a form of competition for online digital media that is freely shared, so that the Interdiction would come when something is offered, and instead of a denial of service attack (another form of self-help that ties up an entire system or network, discussed by the incumbent content companies that is an illegal means for stopping filesharing), Interdiction would send a message to a seeder to take down the file and it could tie up just the seeds (not a seeder's whole system) so that no one could download. Nesson talked about a "new release" window to keep the market pristine for selling the content.

I found BitTorrent to be a really interesting system, one that could be so powerful for exchanging information, distributing files without centralization (where the distributor has to pay all the bandwidth costs, verses distributing the distribution costs as well across users), but one that needs work before the general public (those beyond the geeks) can use it.

Last night, I attended the Yale-ISP/Harvard-Berkman Cyberscholars Group. John Palfrey, David Johnson, and Susan Crawford presented The Accountable Net. It's a paper they haven't yet published, but when it is, we'll blog it. However, the discussion was quite lively, giving the presenters suggestions about areas they might fill in regarding spam, informational privacy, and network security, using peer governance to try to control particular kinds of unwanted behavior. We discussed using social networks, individual's use of their outgoing email boxes, online communities such as blogs and other linked groups, among other definitions of acceptable groups for communications, both practically and theoretically, and whether or not these definitions could work to deter certain kinds of behavior, verses traditional kinds of control and law. People were skeptical, but also supportive, and the discussion seemed to further their work on the paper.

I suggested that when considering social networks, they consider that people have many different kinds of links to people they "know" and that they are very clunky, and may not give the sort of trust or endorsement that trusted online communications need to rely on, and that maybe other means might work better.

Eddan Katz, Derek Slater and James Grimmelman were there, and I met Nimrod Kozlovski (who said, so you're stationed in Berkeley... I said if the people of Berkeley only knew that....) and Shlomit Wagman, and later that night at a party, Paul Szynol, all of whom were Lawmeme writers. Also, Susan Crawford is very lively and a lot of fun. It was great to see people and hang out after. And of course, Yale Law School, actually all of Yale, is lovely, freshly dusted with snow, and then it snowed again in the middle of the night. Just beautiful.

(ps, I wrote this on Friday, but was unable to post it until Sunday, because my hotel's DSL seems to have some issue with publishing on MT, though most everything else works.)

Updated post:

Recommended: The Coming of the Anti-Feist, Part II (Donna Wentworth @ Copyfight).

Congress is talking about locking down data in databases. Feist was this case where the Supreme Court ruled that facts (like the temperature, the score of the local hockey team, the number of voters in a state) are not copyrightable, only special arrangements of those facts in databases, collectively are, and then it's the arrangement, not the facts themselves that are copyrighted.

Well, now Congress wants to change all that, allowing the first to arrange something to get control of it completely, including all factiods. Think scientific data, publicly funded research, etc. Bad policy idea all around. Do you really want scientific data tied up like that? Facts that should enter the public domain to be built on for further research? Not to mention the scores of the hockey team? There is no reason for this, and in fact many major companies oppose it, but the copyright cartel is strong, and their interests very short term (lock every thing down, make money now, screw innovation and future development, cause we're makin' quick bucks!)

Check it out. And make your thoughts heard with your legislators. We can't afford this legislation.

Parker Thompson just attended the Technology, Values and Justice conference this past weekend at U of Washington Law School. Interesting folks like Vint Cerf [one well dressed dude (his bad-ass factor as on par with Sean Connery)], Judge Donald Horowitz and Ed Lazowska, who talked about how the digital divide can be seen like a fractal, where a percentage within a percentage within a total has access and the rest are left out, like this issue left the radar the second Bush stopped keeping stats (note the reports on the site date to 1998 and 95.

Morton Horwitz Professor and Legal Historian at Harvard spoke next and gave perhaps the best talk of the conference. In a brilliant talk Horwitz discussed access to technology as a right the way we consider access to language education (for example, to non-native speakers) a right. If, he argued, technology is a window to participation in our justice system then denying access to these technologies would constitute denying some citizens access to the justice system. I have heard the argument made that Internet access should be treated as a utility, like electricity or water, but never that it could be considered a requisite to participation in civil society provided for by the Constitution.

An interesting example he used was a mechanic. Apparently bankruptcy law prohibits creditors from taking a mechanic's tools to cover debts owed, the rationale being that this would deny the mechanic his ability to earn a wage (I may be missing the finer point here). Horwitz posited that this might be analogous to someone in an information profession (say lawyers) having a right to his or her professional books. He goes on to suggest this principle could be extended to protect an individual's right to information (e.g. legal information).

Interesting ideas. Check it out. Parker told me he and the two other students there were perhaps the only non-gray attendees. But he said they were fascinated and it rocked.

Frank Field points to a fantastic (as in interesting and thought provoking) article on metaphors used to understand legal and internet issues. Gore, Gibson, and Goldsmith: The Evolution of Internet Metaphors in Law and Commentary. From the abstract:

While metaphors aid humans in comprehending abstract concepts and legal doctrines, they also may limit human understanding by selectively highlighting various aspects of an issue while suppressing and marginalizing others. Unreflective use of metaphors can lead lawyers to take for granted the "realities" that metaphors enable. A bad metaphor can also simply lead to bad decision making. For example, Cass Sunstein argues that the "marketplace of ideas" metaphor has turned the right to free expression into a degraded form of commerce.

Substitute "journalism" or "digital media" or "technological frameworks" for "legal doctrines" and you see the same is true as metaphors are applied in those instances. We use metaphors to see and convey understandings of complicated ideas, but we limit the understanding at the same time in those discussions. Journalists do it all the time, when they shorten the number of words it takes to tell the story. They sometimes continue applying the same metaphor to situations where that metaphor becomes out of touch over time. Same goes for many of our discussions with digital media, the internet and technology. Making metaphors apparent is something I am experimenting with in the information work I'm doing, and so I found this article helpful.

Just a quick note, as I'm working on something else at the moment, but good news!

From Reuters: Court Says Net Music Subpoenas Not Authorized

The RIAA has been using DMCA subpoenas to get subscriber's identities in order to sue the ISP's customers for copyright infringement because of file sharing. However, the subpoena process is heavily flawed under the DMCA, where there is no court oversight required for the subpoena, like there would be in a regular action. The District Court in Washington, DC has agreed with Verizon (see the opinion) that existing copyright law doesn't give the RIAA the right to get ISP customer information in the manner they have been under the DMCA.

"In sum, we agree with Verizon that (the law) does not by its terms authorize the subpoenas issued here," Chief Judge Douglas Ginsburg wrote.

And from Wendy Selzer: "Internet users are the winners...." See Derek Slater for more in-depth analysis of the case and what this means. Derek suggests there is likely to be an appeal, but for now, this may cause Congress to step in to reevaluate copyright issues.

Via Donna (doesn't this sound like a lovely drink, something citrusy and ice-cold, that you might enjoy on a warm roof top at sunset in Rome while watching the glow fade across the tops of the Vatican and monuments like Vittorio Emanuel? Donna is like that, only better: smart, lovely, refreshing, and you feel so fortunate to know her!)

Freedom-to-Tinker has the scoop on the latest with Diebold, from Kim Alexander at California Voter Foundation: Diebold was found Tuesday to have installed uncertified software in all 17 counties in California where they have voting systems.

...Secretary of State Kevin Shelley came into the meeting to address the panel and spoke very firmly and passionately about the need for voters to have confidence in elections. He also suggested that it is possible Diebold could be decertified in California altogether.

Obviously, at this point we can all agree that open verifiable code and paper trails are critical for the veracity public voting software systems. It's nice to know these issues are squarely on the radar of the Secretary of State's office.

Check out Clay Shirky's latest: The RIAA Succeeds Where the Cypherpunks Failed

It may be time to dust off that old issue of Wired, because the RIAA is succeeding where 10 years of hectoring by the Cypherpunks failed. When shutting down Napster turned out to have all the containing effects of stomping on a tube of toothpaste, the RIAA switched to suing users directly. This strategy has worked much better than shutting down Napster did, convincing many users to stop using public file sharing systems, and to delete MP3s from their hard drives. However, to sue users, they had to serve a subpoena, and to do that, they had to get their identities from the user's internet service providers.

Identifying those users has had a second effect, and that's to create a real-world version of the scenario that drove the invention of user-controlled encryption in the first place. Whitfield Diffie, inventor of public key encryption, the trategy that underlies most of today's cryptographic products, saw the problem as a version of "Who will guard the guardians?"

In any system where a user's identity is in the hands of a third party, that third party cannot be trusted. No matter who the third party is, there will be at least hypothetical situations where the user does not want his or her identity revealed, but the third party chooses or is forced to disclose it anyway....

In other words, the third parties are our ISPs, and with the DMCA subpoena problem, our identity is vulnerable to the likes of the RIAA or anyone else who grunts "copyright infringement," no matter how stupid or not true.

The RIAA's successful extraction of user identity from internet service providers makes it vividly clear that the veil of privacy enjoyed by the average internet user is diaphanous at best, and that the obstacles to piercing that veil are much much lower than for, say, allowing the police to search your home or read your (physical) mail. Diffie's hypothetical problem is today's reality. As a result, after years of apathy, his proposed solution is being adopted as well.

Which brings us to the Darknet, which we've written about quite a bit before. So now we all have Waste accounts and trade secretly, and the resulting loosely bundled groups of people, using encryption.

Frankly, I believe that sharing copyrighted materials amongst *real* friends (you know, like taping a TV show and lending it to a friend) is legal fair use, and so small networks of friends that know each other, and recommend stuff, share it, falls into this category for me. That is not to say that sharing copyrighted works with all 60 million of your best pals on KaZaa is right, as I think that IS copyright infringement.

Last night, Creative Commons marked their first year anniversary with a party where Larry Lessig, Glenn Otis Brown and Chris Lydon among others talked about the many, many accomplishments over the past year, and played a wonderful flash animation about CC or here, particularly emphasizing the export of CC worldwide. One thing they mentioned was that all content online from the radio show, Tech Nation, will now be under a CC license, and they have had more than a million uses of the licenses over the past year.

The party was a great time to meet up with Stanford and Berkeley folks, artists and geeks, and those who support having balance between copyright and the public domain. I got to meet Joi Ito, whose sister I met at a conference last spring, and since she spoke about him in such a sweet way, I have wanted to meet him ever since. So that was fun. Also, the videoblog goddess (and otherwise all around goddess), Lisa Rein was there, taping, and presumably will have the video up on her blog soon.

Also, considering donating to Creative Commons here.

Update 121903: Check out Christopher Lydon's interview with Larry Lessig done just after the event (you can hear the last of us in the background of the audio interview). I gave Chris a ride back to Berkeley and he said he said he would get it up quickly, though he's been traveling, and he did!

Update: Derek Slater posts his notes.

Eugene Volokh (brief).
Ed Felten (extensive).

Ed: The afternoon discussion was about voluntary license schemes. And here an interesting thing happened. We talked for a while about how one might structure a system in which consumers can license a pool of copyrighted music contributed by artists, with the revenue being split up appropriately among the artists. Eventually it became clear that what we were really doing was setting up a record company! We were talking about how to recruit artists, what contract to sign with artists, which distribution channels to use, how to price the product, and what to do about P2P piracy of our works. Give us shiny suits, stubble, tiny earpiece phones, and obsequious personal assistants, and we could join the RIAA. This kind of voluntary scheme is not an alternative to the existing system, but just another entrant into it.

You sly dogs. When you, and the 39 other folks at that thing start wearin trucker hats, talkin' trash, groovin backstage with the likes of Moby or Madge, we say bravo. Walk a mile in the RIAA's shoes before you dis 'em. Fight em with hip. Or not.

This is not to say that a few ISPs or universities can't get together and cut a voluntary deal with the existing record companies (and other copyright owners). Such a deal would still be interesting, and it would lack some of the disadvantages of the more ambitious mandatory license schemes. Of all of the blanket license schemes, this would be both the least risky and the easiest to arrange. But it hasn't happened yet. (Penn State's deal with Napster doesn't count, since it's just a bulk purchase of subscriptions to a service, and not a blanket license that allows unrestricted use of music on the campus.)

Smart folks. Seems to me they will keep working this over until they come up with something good.

As other's post their thoughts on the Harvard/Berkman conference yesterday, I'll update.

"Piracy is like terrorism today and it exists everywhere and it is a very dangerous phenomenon." - says the WIPO Director at the UN summit.

No, it's not. Nice try. Terrorism is about harming people physically, and causing terror, for a political agenda. People sharing media is about people sharing media with other people, for cultural, entertainment and personal reasons, whether or not you agree with it, or are willing to get off your duff to figure out a business model that works with P2P and digital media, instead of against it.

Teresa Riordan/NYTimes has this on the recent purchase (for $700k) of the Six Degrees patent, by Marc Pincus of Tribe and Reid Hoffman of LinkedIn. They say they purchased the friend of a friend (FOAF) patent because they didn't want anyone else buying it to use it against them, but they are also trying to negotiate with Friendster to become a partner/owner of the patent, though Friendster hasn't jumped in yet. Conversely, Visible Path is treating their processes for understanding people's network and connection habits as a trade secret, so that unlike patents where the process must be disclosed, Visible Path won't share how they do things ("We think that is a higher form of protection.") Visible Path says they operate differently than the Six Degrees patented method, because they evaluate the quality of FOAF connections verses the degrees between connections. At the end of the article, there is this prediction: "This industry [FOAF] is going to go in a thousand different directions," Mr. [Antony] Brydon said. "I think we're going to find that many of the things being protected today are completely irrelevant a year from now."

Somewhat related to that notion is this PC World article asking: will consumers change ip? Granted the examples given are the more commonly known ones such as the Verizon, et al cases with user's privacy in the balance over music sharing, but the question extends far further when you think about the ways we take technology, alter it or its intended uses or blend things never before blendable. Steve Lohr/NYTimes talks about this with Markets Shaped by Consumers where he discusses the ways consumers take technologies, find uses not intended by their creators, or cobble together solutions to problems in innovative ways. Among other things, he mentions the mountain bike, camera phones and text messaging, bluejacking, and FOAF networks like LinkedIn and Friendster.

The ways users shape IP via fair use, either directly by choice or because of the limitations through the architecture of the system they are using, and the issues surrounding consumer generated information, especially about themselves, raises questions of fair use and ownership of personal data and networks in a new way with FOAF networks. Note that this morning on NPR, Choicepoint was quoted as saying that in their system, users own their own data, not Choicepoint. And yet recently, Friendster changed its user policy to state:

Friendster owns and retains all proprietary rights in the Web site and the Service. The Web site contains the copyrighted material, trademarks, and other proprietary information of Friendster, and its licensors. Except for that information which is in the public domain or for which you have been given written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information.

I take this to mean they believe they own the collective data, and without clear personal data ownership laws, I suppose we are subject to this, unless there is a case or new law that changes this arrangment.

Danah Boyd of SIMS was in last Thursday's Circuits section (by Michael Erard), and Peter Lyman is quoted, too. The article discusses the social issues and analog metaphors Danah studies about FOAF networks. While our analog FOAF networks are subject to social norms we can see, touch and control in different ways than those online, there are interesting issues in connecting one person's data and network to the next. Collapsing the analog social norms causes problems, when people from one network you belong to can suddenly see another digitally, but there is also an issue which will probably arise more in the future, where the blending of many user's information, both personal and created, or personal networks, creates something new. It is digital media in the most personal of ways.

As mentioned before, how do you do the IP when "It's the collective I.Q. of the Internet coming to your aid," [said James C. Spohrer, director for services research at Almaden].

So, my father's FOAF network (analog, of course) is extensive. He keeps in touch, even in retirement, with thousands of people, via written correspondence through email and letters, and for 42 years, has maintained a handwritten spreadsheet organizing the 3-4k handwritten xmas cards he sends out to his friends each year (there are more in his network but they don't necessarily receive these cards, and also, my parents visit with many of these people regularly, scattered around the world, for various reasons that are now mostly social). I don't know that Friendster or LinkedIn, etc., clunky as they are now, could accomodate or make sense of the multiple reasons and associated meanings of his relationships, or what is possible between his connections through muliple networks. But I'm sure he's never thought about who owns his data and networks, and the shifts over time these networks have experienced, and the information linking they accomodate. I'm sure he would find it bizarre but also interesting to contemplate that using a FOAF network might require this, where using one might release control over his life's work as one of the most networked people I know.

Dave Weinberger on FOAFs, the privacy aspects, and funny ways we use these online networks: putting the shill into social or Leveraging Mere Acquaintanceships for Business Success since 2003.

Diebold filing here (dated 11/17/03 - the date of the OPG v. Diebold hearing):

...having issued notifications in good faith compliance with the DMCA, has decided not to take the additional step of suing for copyright infringement for the materials at issue. Given the widespread availability of the stolen materials, Diebold has further decided to withdraw its existing DMCA notifications and not issue further ones for those materials.

Per Larry Lessig via Donna Wentworth.

...I want to be a fly on the wall. So says Doug Simpson (via Donna). Kuchinich has posted excerpts of the Diebold memos from his house.gov site:

"Diebold has been using coercive legal claims to intimidate internet service providers and even universities to shut down websites with links to its memos and remove the memo content. Under copyright laws, however, universities are exempt, and posting links to the memos is not considered a violation of the law. By abusing the Digital Millennium Copyright Act, Diebold has intimidated numerous internet service providers to comply with its requests. The damage is two-fold: 1) limiting the public's information about the security of its voting machines, and 2) expanding corporate control over our most free medium of expression, the Internet.

Now there's a stand on keeping the internet free.

See his letter replying to this Politech post asking for support of John Deep's Petition for Writ of Certiorari.

The Aimster case's facts form a bad foundation for a reevaluation of Sony in the P2P era. At best, Aimster is a somewhat centralized service, not wholly unlike Napster, and has thus far had trouble proving any non-infringing uses. At worst, Aimster actively encouraged infringement on its fully centralized P2P service. Its tutorial's screenshots showed how to download copyright holder's content specifically, and the centrally-controlled Club Aimster service helped automate acquisition of copyrighted works on Aimster. The record industry alleges that John Deep has boasted that Aimster is "Napster squared."

[...] With that in mind, why give the Court a chance to write an overbroad opinion? We'd be better off with the Court evaluating Grokster and Morpheus, a much more similar situation to Sony. The Court doesn't like protecting shady characters and, if the Court adopts my "worst case" interpretation, it will be happy to rule against Deep and anyone who seems remotely like him. The Court will treat all P2P as a tool of infringement, rather than just a tool.

[...]Let's not put Sony on the line here by bringing Aimster's case before the Supreme Court. To give Sony, P2P, and Internet innovation their best chance to survive, we should wait to bring the best possible defendant before the Court. If you must support this case, please do so only by focusing on the proper standard of review, as the EFF did its appeals amicus.

When I got the email this morning from Declan McCullah, I thought it was odd, but didn't have the time to look at this today, nor could I have done as good a job as Derek in reply.

Dave Winer wrote yesterday about an issue for the 2004 election: Keeping the Internet free from Media Companies. He asked that Clark and Dean consider a plan to keep the Internet free from interference from the entertainment industry. Two reasons, he says, as he is a part of a constituency that cares about these issues, and that it would signal that a candidate was not beholden to media companies, both in the sense of locking down the future (I assume he means things like copyright, as well as laws that regulate the internet for special interests) and of having the media try to control channels they don't yet own (I assume here he means the development of new digital distribution channels that either are just getting started or haven't yet been invented, or technologies they try to lock out or control, like the consumer electronics industry developments that must now be approved by the copyright industry with respect to the Broadcast Flag -- See Zoe Lofgren's editorial today on these new restrictions on innovation by the FCC).

In the comments, Seth Finkelstein says it's not realistic, and Jay Rosen responds that he's half right:

Maybe his [Dave's] idea is, "Let Clark and Dean work it out. They're smart enough."

The Internet is different from the phone network and radio and broadcast television in important ways... [like] "many to many" communication as opposed to the "one to many" communication of broadcast television. A student, an independent software developer, or a small high-tech company can come up with an idea for a new application, protocol, or kind of content. If enough people find it useful or worthwhile, this idea can spread like wildfire. Even as the Internet evolves, it is important to ensure that it continues to provide an open platform for rapid and decentralized innovation, and for the exchange of ideas.

But Dave has framed the problem well. Keeping Hollywood's influence from wrecking the Net would, by extension, help solve the copyright disaster that's been building in America for decades.

Jeff Jarvis' not so sure: he's a big media guy, a blogger, and says,

Dave, I just spent last weekend in big rooms filled with big media and, believe me, I saw little cause for alarm.

My thought: Maybe Dave didn't specify the exact problem, and he is very much in a partisan position (as he admits) with technology, but he does make a good point. Locking down the internet with DRM, like the just adopted BF regulations, as well as using the DMCA for all sorts of ridiculous anticompetitive and otherwise destructive stuff (think Chamberlain v. Skylink over garage door openers, Lexmark and printer cartridges, Diebold and voting software memos) that incumbents love to use to maintain their positions, and you can see why he cares about this. It's not that I think incumbents all should be undermined, but I disagree with an Internet that only protects them, and makes it hard for innovators to develop the digital technologies that will shift everything and create so much value, though maybe for a mix of incumbents and innovators. It's understandable that they are scared, because they have a lot to lose, but we all are participants in the internet, and there is a public good in keeping it open and free.

Lock the internet up, lock content down, and I think it will be less than 20 years before our closed internet loses to the free internet, still existing in the rest of the world, leading to the loss of US leadership and competitiveness in technology, content and innovation. Seems counterintuitive, and in the short term yes, protectionism is beneficial, but long term, it will hurt us badly.

But I'm not so sure this is something we can address in a presidential election, and Seth may be right, maybe this is an unrealistic discussion. But my hope is that as we forge further into the information economy, we will be able to address issues like this in a national forum, that people will understand digital issues enough that they will want to hear what candidates have to say about intellectual property, media, digital technologies and information flowing on the internet, because it means their jobs (and health insurance), their intellectual freedom and entertainment. But I don't think it will happen until the public asks for it. And many more people must become digitally literate before that happens.

The Daily Cal has a piece on Joe Hall and Notice and Takedown request (Sect 512 under the DMCA) on the Diebold memos he posted: Posting of Leaks Lands Student in Hot Water. Joe responds here:

It's too bad that Andrea couldn't get some quotes from the other Berkeley students participating in this action as I'm sure they have valuable things to say: Parker Thompson, Ping Yee and Sean Savage. This action achieved it's goals of getting the documents out there and in to the hands of investigators solely because so many students weighed the issues (copyright v. freedom of speech, privacy, etc.) and were willing to take the risks involved with posting the documents.

Kim Zetter/Wired with E-Vote Firm's Bill Comes Due says that the CA Secretary of State's office is forcing Diebold to pay for an audit, because they installed uncertified software code into CA voting machines, in order to win certification for a new model. According to Zetter, this is due to student actions to get this information out, and the CA SoS offices reading some of these memos and taking action:

Release notes for the 1.18.17 version that were posted on the Web recently with other internal Diebold correspondence, indicate that several critical fixes were made to the software in addition to installing several new features.

If this is true, students at Swarthmore, followed by students at many other institutions including those above at Berkeley, in spreading the Diebold memos around, have accomplished the goal of causing those with review power over Diebold systems to take another look at Diebold's work. Let's hope the review really scrutinizes this company's activities and that EFF and OPG's suit against Diebold brings about the conclusion that using the DMCA to suppress speech necessary to the functioning of the democracy is wrong. Even if the review doesn't cause the state to discontinue using Diebold systems or require severe changes (and I'm sure the pressure is enormous TO certify), the fact is the memos raise disturbing issues and the review is very necessary. If companies providing services of this sort feel that they can quash documents out on the Internet by using the DMCA, if Diebold succeeds on this point, we and our democracy will be the poorer for it.

Also note that Verified Voting.org has a petition in support of a bill introduced by Representative Rush Holt of New Jersey requiring a voter-verifiable paper trail. Consider looking over the bill and signing the petition. Also Parker Thompson notes that Greg Palast of the BBC spoke at Berkeley and in the Q&A, received over 200 note card questions, where 25% asked about black box voting issues.

...in the Crimson. Derek posted the Diebold memos on his Harvard account website, wrote about it on his blog, and received a C&D on October 31, 2003. Harvard rules say he gets two chances for copyright violation, before he loses his account. Diebold served the C&D under the DMCA rules, maintaining that the memos are copyright protected, and Harvard responded by disabling the documents.

Derek: "These documents are potentially important to our democracy and the integrity of our voting system," he said. "It's necessary to spur debate."

[John Palfrey of the Berkman Center] said that the case for copyright infringement is hardly airtight against Slater, an affiliate of the Berkman Center.

The DMCA uses four criteria to decide whether copyrighted material can be made freely available, Palfrey said. These include the purpose of the infringement, the nature of the material, the amount of material used and the potential effect on the documents' market, he said.

Palfrey said that Slater's case against claims of copyright infringement are bolstered because the documents were used in an academic and not a commercial manner and they were factual -- not creative -- works. He added that Slater did not damage their market value because Diebold never intended to sell the documents.

"Derek has a very strong fair-use case," Palfrey said. "I think the University should be, and is, open to students asserting their rights under the law."

A hearing will decide the matter of whether the policy of copyright violations applies to this kind of speech.

UPDATE: Derek has noted in the comments that even though the article said there would be an upcoming hearing, in fact there isn't one scheduled. Also, the article erred in stating that Harvard sent the C&D to him. In fact it was Diebold. And above, in the quote about the four criteria and the DMCA, instead there are four factors (which were used before the DMCA was passed) for determining fair use of copyrighted works.

Melanie Warner/NYTimes report on Machine Politics in the Digital Age, about Walden W. O'Dell, the chief executive of Diebold Inc., who:

sat down at his computer to compose a letter inviting 100 wealthy and politically inclined friends to a Republican Party fund-raiser, to be held at his home in a suburb of Columbus, Ohio. "I am committed to helping Ohio deliver its electoral votes to the president next year," wrote Mr. O'Dell, whose company is based in Canton, Ohio.

It would make sense for outside contractor's providing voting systems and software to be held to the same standards as federal employees, who are restricted from involvement in political activities. It just seems as though those who program, control and maintain the systems should maintain an impartial stance.

Read about it here. Eff is representing an ISP, the Online Policy Group (OPG), and two Swarthmore students, Nelson Pavlosky and Luke Smith in a suit against Diebold (response pdf), who has been challenging the right to post copyrighted internal memos that reveal Diebold touchscreen voting system problems. The Judge, Jeremy Fogel, of the federal district court in San Jose will hear the OPG v. Diebold (Case Number C-03-04913 JF) on November 17, 2003.

Oh, and speaking of free speech on campuses, John Leo/Town Hall have this on the Sheldon awards for university presidents who manage to quash speech (my fav: opposing intellectual diversity with the excuse that it would threaten academic freedom.) While Diebold is outside of the university system, they've certainly rivaled and exceeded the examples given in the article. Maybe they could make a special category of Sheldons, sort of a Best Foreign Film thing, for outsiders who really achieve über status in the field. It would be a Lifetime Achievement Award for Managing to Kill Speech Across Many Campuses, by an outside company, using copyright as your trump card. It could have a little one-eyed jack card, with a smile, teeth glinting with a dollar sign, golden copyright symbols floating around Jack's head, being held by the spineless Sheldon statue....

Update 110703: Wired has this: Suspect Code Used in State Votes

EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School are seeking a court order against Diebold. Diebold, the maker of an eVoting system that many a Registrar have purchased, including our own Alameda County, has, as noted here before, lost control of some internal memos (someone hacked into get them). Diebold has been serving C&D's (Swarthmore, as well as one here at Berkeley, and Derek Slater/Harvard received one) to ISP's of hosters of the memos, and students have been protesting, because they, we, believe Diebold is in the wrong in trying to suppress information about security flaws in the eVoting system. The memos are all over now, and on file sharing networks. Diebold has even claimed DMCA copyright violations for those linking to the memos. And finally, after two+ weeks, big media is paying attention.

John Schwartz/NYTimes front page today: File Sharing Pits Copyright Against Free Speech.
Steven Levy/MSNBC and Newsweek: Black Box Voting Blues.

/.ing, and Donna Wentworth has all the links.

Update: Declan McCullagh/C|Net: Students buck DMCA threat. Also, Parker Thompson has started blogging with Minfesto. He's one of the students posting Diebold memos, and has this: Brittney Spears Don't Vote. Parker also writes that California is reconsidering Diebold's touch screen system. In particular, check out this CA Task Force Report (pdf) on the systems. Glad to have you in the blogosphere, PT!

Update 110403: Siva Vaidhyanathan has this on Diebold: voting problems in Houston, and a write up on Brian Lehrer's public radio story. He says that the story was poorly done, with a National Journal reporter as the expert interviewed. I just read the CNN/AP article: California delays certification of some electronic voting machines, and found it missed the context of the past few weeks, where students at various schools have been mirroring the Diebold memos and keeping this issue out front, at some personal risk, which I think has helped push questions of Diebold's security. When media point out that younger readers don't read papers anymore, and then I see this, I think, why should younger readers read the paper, when their involvement it totally left out, or when it is included it's often dismissive in tone of those covered (I do know why they should read papers, but still, you get my point). This is not always true, and certainly Declan's article is not written this way. But really, if you want readers of a certain demographic, think about including them, because they are apart of the story!

Why War? has a list of the additional university sites with the Diebold memos posted. UCBerkeley's own Parker Thompson and Joe Hall have joined with the other mirrors, and I'm linking to them. Under Swarthmore's policy, just linking is grounds for cutting off network access. Course, I'm not going as far as James Grimmelmann at Yale, who links to linkers linking to linkers linking to linkers. Or Derek Slater at Harvard, who's just linking everywhere, writing letters and mirroring.

How many more links do you need, before you get the picture, Diebold? Voting is too important to have you hide the goods. Cause frankly, we can link you under the table.

Is It Real?
Although Ernie Miller has noted that in the AP article, Diebold's CEO Jacobsen has said, "We're cautioning anyone from drawing wrong or incomplete conclusions about any of those documents or files purporting to be authentic." If they are not authentic, the DMCA doesn't apply in this case.

The Prof Speaks on Linking Policies at Swarthmore, and More
Timothy Burke of Swarthmore's History Department says:

If Swarthmore could do one thing differently, it would be to move to a DMCA interpretation that assumes liability only over content hosted directly on the site. At the moment, the college's IT administrators are using an interpretation that encompasses direct links to copyright-violating content as well as directly hosted content. I think that's a mistaken (if common) interpretation of the requirements of the law, and so do a lot of other scholars and observers. But even then, I'd rather we make that change in policy in a considered way, with a full awareness of what we're doing.

This after he criticized Ernie Miller and Siva Vaidhyanathan for blindly repeating what they find at the Why War? site, when in fact, Siva pointed to Ernie, who has been doing direct reporting after calling Swarthmore's IT department and various people at the Why War? site. None-the-less, Burke makes a good point about the point: we're here to point out how ridiculous the DMCA interpretations are about linking, as well as why companies that provide anything to do with voting should be totally transparent. And so the protest needs to be directed, responsible and thoughtful.

C&D's For Everyone
Why War? also reports that Amherst and MIT have received cease-desist letters in addition to Swarthmore.

Notable
Steven Levy/MSNBC suggest that the politicians start listening to the geeks on this one. And Seth Finkelstein suggests the Administration listen to this. And Tom Tomorrow does Diebold.

It occurred to me that the FCC's ownership rule making also provides a significant argument against the flag. Chairman Powell repeatedly asserted that over the air televsion is merely one small part in a large, competitive media market. It has to compete with print, radio, and the Internet. Well, if it's such an insignificant industry, then why should it get to determine policies for the entire tech industry? I'm not necessarily saying that I agree with the ownership rule changes; rather, I'm saying that the FCC has already stated that broadcast TV shouldn't be treated specially.

Wendy Seltzer sends the latest from EFF:

There are now 1633 subpoenas in EFF's RIAA subpoena database, all from the D.C. District Court through October 1. The RIAA has filed at least 200 more through Oct. 21, for which the court has entered captions but not yet posted subpoena documents. We are also looking to begin searching other district courts, as we know there have been some subpoenas filed outside DC.

ISPs (and other entities served, with some alternate names collapsed):
539 Comcast Cable Communications, Inc.
299 SBC Internet Communications, Inc.
164 Time Warner Cable
250 Verizon Internet Services, Inc., GTE.Net LLC (d/b/a Verizon Internet Solutions), Verizon Avenue Corporation, Verizon Media Ventures, Inc.
99 Charter Communications, Inc.
68 Cox Communications, Inc.
67 Adelphia Communications Corporation
37 RCN Corporation
13 EarthLink, Inc.
9 CenturyTel Internet Services, LLC
8 Mediacom Communications Corporation
8 Grande Communications
8 BellSouth.net, Inc.
8 America Online, Inc.
7 Earthlink, Inc.
6 New York University
6 InterQuest Communications
4 Loyola Marymount University
4 Bentley College Academic Technology Center
3 Qwest Communications, Inc.
3 Insight Midwest, L.P.
3 Boston College
2 Suntech Systems, Inc.
2 Sprint
2 San Bruno Municipal Cable
2 Northeastern University
2 CSC Holdings, Inc.
1 WideOpenWest Holdings, LLC
1 University of Southern Californiay
1 Speakeasy, Inc.
1 Seren Innovations
1 Qwest Communications Corporation
1 Pacific Bell lnternet
1 Massachusetts Institute of Technology
1 Loyola University Chicago
1 Illinois Institute of Technology
1 Greenville Electric Utility System (GEUS)
1 DePaul University
1 Columbia University
1 Choice One Communications lnc
1 Boston University
1 BlueMarble Telecom, LLC
1 AT&T Worldnet Service
1 Armstrong Cable Services
1 America Online
1 Altrio Communications, Inc.

Filesharing Services
1492 KaZaA
43 iMesh
32 Gnutella (Bearshare)
26 Grokster
14 Gnutella (Limewire)
12 MP2P (Blubster & Piolet)
6 Gnutella
3 Gnutella (Shareaza)

University recipients
6 New York University
4 Loyola Marymount University
4 Bentley College Academic Technology Center
3 Boston College
2 Northeastern University
1 University of Southern California Doheny Memorial Library
1 Massachusetts Institute of Technology
1 Loyola University Chicago
1 Illinois Institute of Technology
1 DePaul University
1 Columbia University

This is an update from the last post on the subpoenas.

John Schwartz/NYTimes are reporting that the music industry has decided to warn the next 204 lawsuit targets:

Cary Sherman, president of the RIAA, said "we want to go the extra mile and offer illegal file sharers an additional chance to work this out short of legal action." This new policy was announced at last month's Senate hearing. Senator Norm Coleman (MN) said he wished it hadn't taken hearings to bring this sort of consideration about. Now how about considering judicial review for all subpoena's for user information for those they intend to sue?

In the meantime, Epeus Epigone talks about Steve Jobs' comment about iTunes "editing tactics": At the iTunes Music launch, Jobs said something very wrong - that record labels should be the arbiters of taste - that they edit for our own good, and that unsigned bands need not apply.

The key point of digital media is that we can all edit, so I edited him: video file.

It's interesting, because we all know, time and again, that attempts to control or limit the network result in loss of business. And then you leave yourself wide open for disruption. Biz 101. It's not like the Internet offers huge barriers to entry for offering interesting music over a website. And considering Microsoft's Q&A (and other media offerings) on iTunes (I'm shocked to hear MS is down on iTunes - kinda snarky, even) after they've added Windows support, (link from Ernie Miller), Apple could remain more competitive by embracing the rip, mix, burn philosophy once again, allowing any music into iTunes, regardless of whether it was produced by an RIAA affiliate. What would it cost them? Very little. It seems anticompetitive as well. Is this the result of some exclusionary agreement between Apple and record companies in exchange for industry music? It would be interesting to find out if Steve's spin on "editing" out the smaller music is actually about appeasing the music industry. Hey Steve, innovation is cool and it leads to more cool stuff, like the Motorola C350, where you can mix your own dance tracks anywhere for Groov'n On The Move.

Ernie also points to an open source audio media player/ripper. Good stuff.

Remember, if they force the broadcast flag on everyone, it will force digital TV, in order the make the flag effective, which means up to $750 per TV in upgrades or a whole new TV, and that means everyone has to get cable. No more over the air broadcast (but you -- the last 20% of American households that don't have it -- can pay up there too, if you haven't so far, by being forced to subscribe to cable). Oh, and just in case you're curious, there was a KTVU Ch2 story tonight on cable consumer costs that said Comcast has raised prices this year more than 6 times the rate of inflation (and this story was provided free, over the air! but later you'll have to pay for that too). And then, imagine the landscape with the latest FCC rules on media consolidation. Also, do you really want to pay so much more for HDTV, and actually get less functionality than you have now with your current TV?

So a very few media companies make all the content (check out Stephen Labaton/NYTimes on breadth (or lack of breadth) of media choice), own all the pipes, and then with the broadcast flag, will dictate to consumer electronics companies what devices they can make now to play/watch/use/record that content, and in the future (imagine the loss for innovation, because the content industry is dictating that, too with the broadcast flag). I'm thrilled. Are you? How about a reasonable balance between the content/copyright industry, and the rest of us? Remember, the monopopy we grant creators is in exchange for fair use rights like time shifting TV. This proposal only benefits the content industry; there is no trade off to benefit consumers.

EFF suggests you write, call or email your reps: here and Digital Consumer has this here (please think about how you feel and put it into your own words, because that is most effective in communicating to legislators). And Donna Wentworth, Frank Field, Dan Gillmor, Ernie Miller ("Any rule that mandates DRM is giving too much control to the entertainment industry.") and JD Lasica explain further what's wrong with the above scenario. Plus Frank links to a January article by Biz Week that talks about using tools like the Broadcast Flag to spy on users.

says Mathew Artz/Berkeley Daily Planet.

Berkeley librarians insist that embedding their books with a state-of-the-art monitoring device despised by privacy advocates will not grant Big Brother a glimpse at patron's reading material.

"We're not going to fight the Patriot Act this hard and then just give away information," said Berkeley Director of Library Services Jackie Griffin, who added that, after careful study, she planned to purchase Radio Frequency Identification Devices (RFID) before next June.

But, UC Berkeley database researchers were skeptical, because they pointed out that it is the collective use of RFID that can be problematic. The more use, the more incentive for many to get readers to observe personal information. Of course, the Berkeley Public Library may be very responsible in their implementation, but if the RFID information is not encrypted, even if it's just a book title and author, if others read the tags as people walk by with the books, and then aggregate the information with other 3rd party personal information known about the person, there could be serious privacy concerns. In many ways, Berkeley is really a small town and the same folks walk by every day. As RFID is more widely adopted, readers might pick up several tags to collect a variety of information about one person. Imagine if a tag in your eye glasses, a tag in your book and a tag in your shoes gave aggregated information that meant it was pretty certainly you, pin pointing you at a particular place and time, that could then be aggregated with other address and birthday information about you that is publicly available.

It would change all our thoughts about being able to be anonymous on the street, read a book in private without the scrutiny of everyone around, and our possessions and consumer purchases too might be rated to tell whether we are a good target for advertising or some other message or information. Why is that a concern? Further segmenting people means that while some may only get targeted ads and information, and this might be good for getting information you want and spam/ads you don't, there may be others excluded from information that society uses to understand itself and make decisions. Differentiation in marketing, if it goes too far, might eventually lead to the exclusion of whole classes and types of people from information society uses to participate in certain kinds of interactions. It remains to be seen how this kind of exclusion could lead to the further amplification of classes in our society and culture.

Currently, the Berkeley Library uses UPC tags for each book, and offers self-checkout.

... by Eugene Volokh as quoted by EdCone.com.

Q: Does the First Amendment cover weblogs?

Eugene Volokh: Absolutely, just like it covers newspapers, magazines, and the like.

Q. What protections afforded to print and TV journalists might not apply to bloggers?

Volokh: Hard to tell for sure. There are some statutes and state constitutional provisions that provide journalists *more* protection than is required by the First Amendment, and some of these statutes are by their terms limited to certain media. The hard question is whether these terms should be read as covering blogging and the Web generally, which didn't exist when many of the provisions were written. A lot depends on the particular terms of the statutes, and, when the statutes are vague, on the views of the judges. I discuss some examples -- especially retraction statutes that can decrease the liability for libel, reporter's privilege statutes, and press credentials -- here: http://techcentralstation.com/120502B.html.

Q: What other implications under press and copyright laws do weblogs raise?

Volokh: By and large, the same ones that other media -- books, newspapers, magazines, and so on -- raise. Generally speaking, the issue under most such laws is the message, not the medium. If you can say something in a newspaper, you can say it in a blog. If it violates the law in a newspaper (for instance, if it's libelous, a copyright infringement, false advertising, a threat, and so on), then it violates the law in a blog, too. There are some exceptions, but this is the general rule.

Ernie Miller of Lawmeme writes that he did a post there on the FCC decision about Bono's use of the word "fucking" on TV. The title contained "fucking" in it, and seems as though it was intended to push the boundaries of media expression (in an ironic and humorous way) because the FCC has with its decision. So it is with further irony that Lawmeme, which is a blog about the first amendment and free expression, technology, IP and the internet, and utilizes a medium that is less formal, quicker, irreverent and more blunt than say, law reviews that are more formal and less confrontational, would have some members of the group blog objecting to the ironic use of the word "fucking" in the title.

Ernie writes: I recently did a short little story on the FCC decision that Bono's use of the word "fucking" on TV was not indecent (via BuzzMachine). The title of my post was "A Fucking Interesting Decision from the FCC". Ironically, my use of the term "Fucking" in the title of the post was deemed unprofessional. The EIC of LawMeme demanded that I either change the title to "FCC Rules on Use of 'Fucking'" or delete the post. Without noting any of the irony, another editor of LawMeme instead changed the title to: Bono Says "Fucking" on TV; FCC says "Ok".

I can understand some people being offended by the post, but that is the point. The FCC doesn't think this use of "fucking" fits their definition of indecent, because the word was not used by Bono in a sexual context, and the same goes for Ernie's title. The idea for Ernie was to make this clear using that title, and with all due respect, it seems that some of the folks at Lawmeme missed that point.

Earlier today I mentioned Alex Halderman and his paper (pdf) on the CD protection scheme developed by SunnComm, which can be cracked! yes cracked, by holding down the shift key while putting the disk into your computer. Well, Donna writes that SunnComm is taking legal action against Halderman because he has based his paper on "erroneous assumptions" and because he has violated the DMCA.

"No matter what their credentials or rationale, it is wrong to use one's knowledge and the cover of academia to facilitate piracy and theft of digital property, said SunnComm CEO Peter Jacobs. "SunnComm is taking a stand here because we believe that those who own property, whether physical or digital, have the ultimate authority over how their property is used."

Really? How about the copyright balance, where things like fair use (and the right of first sale) are involved? We are talking about a copy protection that will be sold on lawfully purchased CDs, that users might want to play on their computer CD players. Is it fair use to space shift? While this question has not yet been definitely answered by legislatures and courts, a private company is effectively answering that for us.

More From Donna/Copyfight:
Later: Fred von Lohmann: "In America today, scientists shouldn't have to fear legal action for publishing the truth. Based on the apparent weakness of its technology, perhaps SunnComm should be hiring more Princeton computer scientists, instead of threatening to sue them."

Later #2: Ernie Miller @ LawMeme: "I do not know what 'device' Halderman could possibly have been trafficking in, unless they plan to go after him solely under section 1201(a) for actually circumventing such a device (a first as far as I know)."

Later #3: Dan Gillmor: "Plainly, [SunnComm's] aim is to silence any debate over the apparent lameness of its technology. This shouldn't be allowed to stand. I hope the EFF and other organizations will raise a defense fund; I'll contribute."

I decided to call SunnComm directly and complain about their abuse of the First Amendment and academic research: 602-267-7500. While they have the DMCA on their side, does not mean is it right for them to stifle academic freedom or the right to publish. The law is wrong here, as are SunnComm's actions. Where does this leave us if research is squashed, and information such as this just ends up being passed around, from user to user, with no research or writing done on these DRM systems. Where does that leave cryptography research? I am not advocating the mass breaking of laws, as researchers need to be sensitive and professional in their work, but there is something very wrong with the DMCA when this kind of thing happens.

/. discusses. And Alex gets interviewed.

ChicagoBusiness.com and the Register are reporting that parents at the Oak Park School District in Chicago are suing to stop the use of WiFi in the schools because they fear the health risks of the Fi. WiFi Networking News cites the suit (pdf) which "alleges that Oak Park Elementary School District 97 has "ignored the substantial body of evidence that high frequency electro-magnetic radiation poses substantial and serious health risks, particularly to growing children". WiFi Networking News says the suit, "cites 30 studies (citations not included in this document, unfortunately) that connect EMR at high frequencies and signal strengths comparable to WLANs to health problems."

This is something I've just been researching for another project (WiFi distance, not the radiation risks) and since anything can block the signals easily, and the signals don't go far, and they are not broadcast right next to your body as cell phones are, I wonder how reasonable this is in terms of health risks. Certainly, there must be more danger from cell phone use considering the promixity of use to our bodies. Cell phones work at 1.8ghz, cordless phones are most often at about the same frequency at 2.8ghz, and microwaves at 2ghz are very close to the WiFi frequency. In any event, it will be interesting to see what happens with the case, and what those 30 citations are, to see whether this is a problem. However, if it is, you can extrapolate that since everything electronic we use emits some wave, it may be that one thing isn't a problem, alone, but that all electronica aggregated together used day-after-day, and running around us all day, might create a health problem.

Just a short note, as I have a midterm shortly. So I voted yesterday at the Registrar's office. People were piling in. They were using the Diebold system, which is I think a first for Alameda county. The Registrar swore they weren't networked, nor is the server that aggregates the votes. However, if a vote process gets messed up, they don't print out people's choices, either at the moment you submit the vote onscreen, or later, when tallying up everything. Considering the issues with Diebold, and other voting systems, I think this is a problem. Also, Diebold has not been open about their system code and architecture, and this needs to be a requirement for any system we approve for computerized voting. See Frank's round-up of links on these issues.

1. Go vote today at the polls if you haven't voted over the last month at the Registrar or absentee. Look up your polling place here.

2. Write/call the state elections commission to express your concerns, if you have them, over the computerized voting procedures and Diebold. Ask them to require open code review, and the printing of a copy of all votes taken.

Also, check out this market analysis of the election. (thanks, Gawker.)
Brown: Governor Gray Davis out (as of Oct 6: top line)
Blue: Yes on recall (second from top)
Black: No on recall (third from top)
Purple: Governor Gray Davis in (fourth from top)
Red: Recall cancelled (bottom)

Also, see this on predicting the election.

Seth Schiesel/NYTimes covers your privacy with respect to your entertainment choices in Your Own Affair, More (VCR) or Less (MP3). Basically, if the RIAA wants your personal info from an ISP because of suspected filesharing, it only need write a subpoena and send it to your ISP. No judge, no opportunity to protest by the user. No privacy law in place to protect any user from having their information requested and delivered by the ISP. On the other hand, if say, the IRS wants your cable records, they must show a judge good reason, and the user has the ability to respond, before the information is turned over to the requesting party. However, there is no statute that covers user privacy for satellite cable.

"Consumers are almost totally unaware that different modes of communication carry with them different expectations of privacy and have different rules," said Paul Glist, a communications lawyer with Cole, Raywid & Braverman in Washington who has represented major cable-television companies. "Every line of business has a different set of regulations, and it really is a maze. There are many times when a company comes to me and they just want to do the right thing and they can't figure it out. You might have one law saying you have to disclose certain information to law enforcement and another law saying you can't disclose the information unless other conditions are met."

For instance, federal law says law enforcement agencies may monitor the phone numbers a citizen is dialing, as they are being dialed, after certifying only that the information is "relevant to an ongoing criminal investigation." Under that provision, the person under surveillance need not even be the person suspected of breaking the law. Generally the subject of that surveillance is not notified of the government's action.

By contrast, a separate law says that even when law enforcement agencies obtain a court order to gain access to a consumer's video rental records, the consumer must be notified before those records are turned over.

Very confusing, but the article does make the point that distinguishing between different types of technologies that in the digital world are really pretty similar is silly, and therefore, the crazy patchwork quilt of privacy protects that differ from one technology to the next should be streamlined. And as the quote above notes, keeping track of the differences is hard on companies, too.

Entrapment -- Incriminating Peer to Peer Network Users (pdf) by Anonymous (or "have2Banonymous") is a seemingly academic paper that suggests some "twinkie" defenses for those subpoenaed or sued by the RIAA for file sharing. Basically, the idea is that if accused, rather than settling, the accused could say that malicious attackers or hackers tricked the accused into downloading and unknowingly sharing the files, or, the attackers planted say, 1000 files (around 2 gbs?? How do you slip that past someone?).

New Scientist has an article on the paper, Innocent file-sharers could appear guilty, that suggests the paper's assertions are reasonable. While security experts quoted in their article do say attacks could happen, and technically, it does appear to be possible on some networks under certain circumstances, why would anyone do it? And by manipulating file requests on those networks, how would they get enough files planted on any one user's harddrive to cause problems? I mean, a user would have to be on filesharing networks often, for long periods, and send many file requests, and the hacker would then have to alter each request, and then the user would have to select the files the hacker intended the user to select, for download. Yes, it's possible, but it seems extremely unlikely, and as a defense? What judge would take this seriously?

There was the recent case where a guy who says he didn't download child porn, used this kind of defense to say that he didn't know he had it and thought it was placed on his system by some spyware Trojan horse he probably surfed/clicked past. That seems more plausible, because porn purveyors have an incentive to get people to come to their sites and to install spyware to watch where users go and what they do there, to try to get more business.

Why would a hacker/spyware/other program put files on your computer? I can see putting a couple of child porn pictures (small k download so it's quick and relatively unnoticeable, and the idea is to entice you to their site to spend money), but 3mg mp3 files would be bigger, inconvenient to hide, and what is the incentive to place them on your system? I can't see a judge buying it other than accepting a general computer ignorance by the user. But if the user's machine has something like KaZaa installed, and had a 1000 unauthorized files on their system, and the RIAA downloaded 10 or 20 of those files to verify them as unauthorized files, the accused would have a hard time claiming that they were tricked by attackers into downloading files some of the files, or tricked by KaZaa into sharing them. It may be true, but they installed a file sharing program, had some files intentionally, and were still sharing unauthorized files.

This paper has an anonymous author, and though it's written in an academic style, with some code that looks real, it's strange. Why would the author not want anyone to know who they were if they were advancing something reasonable? They might not want the information connected to them, but at that point, it's much harder to take this seriously. For example, at the very end of the paper, the author suggests that someone accused of filesharing copyrighted works could show "the authorities" the paper to claim the files were placed there, and "they probably were." Why would any judge believe a paper with no author that advances a questionable defense? First of all, if you get sued, you don't go "directly to the authorities", because these suits are a civil matter. You get a lawyer or defend yourself, and the only authority in the case if it goes to trial is a judge, not the police. And how does the author know a user's files were placed on the user's system by someone else, as he suggests?

This paper reminds me of those old hoax email that prey on people's ignorance, in this case about computers, and what is reasonable. I just don't see the motivation for planting mp3s on people's systems, except in rare cases of personal vendetta. Which also seems ridiculous, because I can think of much easier ways to get to someone if you wanted to do it. It just seems farfetched.

Frank also mentions this, and /. discusses.

Update: Fred Von Lohmann, Meditations on Trusted Computing. He talks about being in control of and trusting your own system, as well as having others trust your system. An interesting contrast to the paper mentioned above. And Seth Schoen posts his paper: Trusted Computing: Promise and Risk which, according to Cory, is a "...long-awaited, brilliant white-paper on Trusted Computing. Seth has been briefed as an outside technical analyst by all the companies working of Trusted Computing architecture, and has had his paper vetted by some of the leading security experts in the field. This is the most exhaustive, well-reasoned, balanced analysis of Trusted Computing you can read today. Don't miss it." /. discusses.

I listened to the first hour of the Senate Committee on Governmental Affairs hearing yesterday. From this panel: Mitch Bainwol, head of the RIAA, Jack Valenti head of the MPA, LL Cool J and Mike Negra, President of Mikes Video, Inc., State College, Pennsylvania, one noteworthy impression: they seemed to lack understanding of the difference between client-server systems (Napster) and P2P models (KaZaa, Grokster). Considering that Napster was ruled to be illegal, because it used a centralized server to make connections which the company could control, and the other P2P models are still here because they are dispersed without centralized control, I would think they would want to understand the distinction. Because of this lack of distinction, they appeared yesterday to want to deploy solutions that are tailored more to a centralized model, like popup messages warning users (who are not connected to a centralized server) about unauthorized file sharing. Here is the Katie Dean/Wired article on this, although it focuses mostly on the different artists' perspectives from Chuck D and LL Cool J.

In other news, Madonna is being sued for copyright infringement by the son of Guy Bourdin over her videos for "Hollywood." Apparently, the videos copy many of the images he made for Vogue in the 50's. Do a compare and contrast for yourself. Note that Madonna was the one who planted files on P2P networks a few months ago with recordings of her voice where she asked "what the f*ck do you think you're doing," which then led to a series of remix contests of the files.