Antonin Scalia: I Am Spartacus

U.S. Supreme Court Justice Antonin Scalia envisions a gay flooded Colosseum. Well, not really. But he must certainly be a fan of the gladiator genre. In a recent speech in Amsterdam he criticized an opinion of the European Court of Human Rights for its vague standard to decide when homosexual activities fall within the private sphere: "Is it when five adults consent, or when they fill the Colosseum."

I'm somewhat paraphrasing, and certainly not able to transpose Scalia's rhetoric intonation of his lame joke. It was an illustration of the central point he wanted to make in his speech: judges are not the experts they are thought to be. They do not provide restrictive, workable standards through interpretation of the law. Bad lawmaking is abundant in the courts and it is done by unelected lawyers who have no more moral expertise than you or me. They do not provide neutral solutions, and if anything is to be solved it should be done in the democratic process. Judges should rely on the law as it is laid down by the people for the people and not do any re-make and re-model.

Scalia propagated, of course, the originalist approach of constitutional interpretation. I thought there where some undertones of Hart's legal philosophy in there, more natural law and procedural pragmatism than expected. But then I'm not the Hart expert, nor the Scalia. Mostly Scalia was on a roll, just a roll: rolling over Roe v. Wade, arrogantly patronizing a judge of the European Court of Human Rights ("Madam, you're not more elected than I am."), and giving a few sneers to fellow USC Judge Stephen Breyer, who, in Breyer's own words, believes in:

"an approach to constitutional interpretation that places considerable weight upon consequences-consequences valued in terms of basic constitutional purposes. It disavows a contrary constitutional approach, a more 'legalistic' approach that places too much weight upon language, history, tradition, and precedent alone while understating the importance of consequences."

Brrrr...consequences, that sounds like a real expert talking. In the Netherlands the experts, that is the Parliament, debated the same day Scalia gave his speech on electro-shocking our constitution from death to living with a new proposal of law. The current prohibition of constitutional interpretation is seen as restricting rights, healthy constitutional discussion and as an anomaly in general.

I guess Scalia wouldn't think it to be an anomaly, but then he seems from another time: when the Colosseum was filled with greasy gladiators instead of steaming gay orgies. Hxmmm... has anything changed really: sweaty muscle men stay sweaty muscle men. Oh no, that's the point, time is fixed, like the Constitution.

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At the Volokh Conspiracy a short report on, presumably, the same speech in America: Judge Scalia the Pragmatist?
More references here

At Balkinization on Antonin Scalia as Felix Franfurter
Also Balkinization: From the Blackmun Papers: The Day Roe v. Wade was Overruled
& Prequel
Dutch proposal on Constitutional interpretation (Needless to say, Dutch only)

P2P and the Future of Copyright

Peter Yu has a new paper out on SSRN, which provides a meta-view of the p2p battles and the connected current scholarship on copyright: P2P and the Future of Private Copying.

Lots of name-dropping and an analysis of the many proposed solutions to unauthorized copying (e.g. mass licensing, compulsory licensing, voluntary collective licensing, technological protection). At the end of the abstract Yu writes:

This Article concludes by challenging policymakers and commentators to step outside their mental boundaries to rethink the P2P file sharing debate. In the fashion of thought experiments, this Article compares the digital copyright wars to (1) a self-preservation battle between humans and machines, (2) an imaginary World War III, and (3) the conquest of Generation Y. By using these comparisons, this Article demonstrates that policymakers should not focus on legal solutions alone.

Towards this last thought experiment Yu notes that "as the kids of today grow older they might begin to understand the pain of not getting paid after doing a day of hard work. As rapper Eminem said candidly in his usual provocative style":

"Whoever put my s_t on the Internet, I want to meet that motherf_ker and beat the s_t out of him, because I picture this scrawny little d[_]ickhead going 'I got Eminem's new CD! I got Eminem's new CD! I'm going to put it on the Internet.' I think that anybody who tries to make excuses for that s_t is a f_king bitch. I'm sorry; when I worked 9 to 5, I expected to get a f_king paycheck every week. It's the same with music; if I'm putting my f_king heart and all my time into music, I expect to get rewarded for that. I work hard . . . and anybody can just throw a computer up and download my s_t for free. . . . If you can afford a computer, you can afford to pay $16 for my CD."

That's the same Eminem who's CD made No.1 despite of file-sharing. (By the way, censoring Eminem's poetic rant was in the original text. I like it raw.)

INDICARE Article Flow

A fresh flow of articles at the INDICARE website, with a variety of topics. Take your pick from the INDICARE Monitor, Volume 1, No 4:

• A short analysis of the position paper on Digital Rights Management by BEUC, The European Consumers' Organisation: On present trends DRM will make a bad situation worse
• An introduction to Privacy Rights Management: DRM and privacy - friends or foes?
• On the potential and risks of a "new" approach to digital content delivery: Rights locker architecture - the next step?
• On the potential impact of bi-directional Rights Expression Languages: From couch potato to active consumer
• An interview with Cornelia Kutterer, the Senior Legal Advisor at the BEUC, the European consumer organisation
• Report and comment on the symposium "Digital Rights Management: The End of Collecting Societies": Collecting societies - not yet "six feet under"
• And earlier: Stefan Bechtold on the Value-Centred Design of Digital Rights Management

The Calimero Effect

Seth Finkelstein, who's done some intrinsic research on filtering (or censorware as he calls it) often seems to suffer from the Calimero effect, squealing into the blogosphere: It's unfair, they are big and I am small. That is, the big A-list blogs dwell in the warmth of attention, while the small B-list blogs may hope in vain for an occasional hit of somebody else than a relative or friend. He's right to squeal, of course, though maybe he does it a bit too much. Some smaller Calimero's would do anything to get his flow.

On his blog Finkelstein posts on an article by Daniel Kreis that analyzes an article by A lister David Weiner on comment-spam on blogs. There are some musings on the CBS memo controversy in the U.S., but a large part of Kreis' article is about the Calimero Effect:

"The second problem I have with Winer's comments is something that I have long encountered in the blogosphere: the idea that everybody can participate equally. Perhaps Winer, who no doubt has enjoyed the fruits of heavy traffic to his "publication" for years, cannot relate to what the less visible among us actually experience when we blog. Our words tend to slip into an ether of random google searches and stay confined to a loyal readership among family and friends."

Since I excluded my own IP address from the statistics counter, I can't fool myself any longer: I'm not even a Calimero, I'm still in the egg.

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More Calimero!

Filtering Norway: New Wine - Old Bottles?

Telnor, Norway's largest telecom group, has teamed up with the national crime investigation service KRIPOS and brings us a filter against child pornography on the internet, "which is likely to be the first of its kind in the world." This last claim is made in today's press release, which has some blunt vagueness over it.

Some quick thoughts on sections of the release:

"KRIPOS will provide lists of web sites containing child pornography, and Telenor will handle the technical management of the filter. [...] Several hundred sites containing illegal child pornography are currently registered in KRIPOS' files."

What makes this filtering "likely to be the first in the world"? Sounds a lot like old fashioned filtering on the basis of black- (and white) lists. Or do they mean that the collaboration between a private and (semi)public party is the world's first in the battle against illegal child pornography?

"The filter will be placed centrally at Telenor, and no installation at customers' computers will be required."

Well, that's a nice service. This shifts the filtering from the end-user deeper into the network, to the ISP, a more general trend. Now possible (constitutional) problems with mandated individual filtering may be circumvented, and a state actor can pro-actively stop content it deems illegal. That is, a state actor in a cooperation with a private party that does the actual filtering and claims that it "shall not exercise any form of judiciary power e.g. in evaluating the lawfulness of content distributed by others."
But doesn't it? Or is it indeed merely facilitating the (conveniently centralized) means to let KRIPOS exercise its judiciary power, which I assume it has? And who of the two is accountable, when the filtering is inaccurate?

"Telenor will be happy to share its experience and its technology with other Internet suppliers. [...] KRIPOS will distribute information about the filter through Interpol, Europol and other international forums"

This makes the idea of a centralized filtering system even more attractive. Specially since KIPROS is "also the national administrative agency responsible for most central policing databases. This function is carried out by our ICT Division." Presumably the same ICT division that provides the blacklists?

Telenor claims to have had some good experience with filtering until now: "we have developed a very efficient programme, KidSurf, to help parents control their children's Internet use." KidSurf seems to be a modification of the CyberPatrol filter: KidSurf "Filteret er utviklet i samarbeid med CyberPatrol" (link). CyberPatrol is a filtering system, which' black lists have been blacklisted themselves for overblocking. KidSurf is of course something else than the centralized filtering currently pursued, both in the point of implementation and content. The centralized filtering sees exclusively on the non-protected child pornography, and not on protected content. And I know, past performances are not necessarily indicative for future results, but still.

Maybe some answers will come when the filtering system is introduced next month. I'm just curious what emerges from the vagueness: a filter which is to be the first of its kind in the world, or old wine in new bottles.

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Thru p2pnet

Creative Commons Interview

At the INDICARE site there's a lenghthy interview with Professor Thomas Dreier on the many facets of Creative Commons licensing. Here's the abstract:

Creative Commons (CC) as standardised licensing agreements for digital goods were introduced in Germany on 11 June 2004. Professor Thomas Dreier, the Director of the Centre for Applied Legal Studies (ZAR) at the University of Karlsruhe, played a leading role in adapting CC to German Copyright Law. Among Thomas Dreier’s areas of specialisation are legal issues of the information society. He is acknowledged nationally and internationally as an outstanding expert on copyright matters related to new technologies. The interview conducted by Bettina-Johanna Krings, ITAS, focuses on Creative Commons exploring the foundations of the CC, problems of adaptation to national law, the personal motivations of Prof. Dreier to support this new approach, limitations of CC, their role with respect to innovation, DRM and commercial interests, and finally scientific publishing.

Tag the Tags

The two largest political parties in the Netherlands have launched a plan to counter the proliferation of graffiti. Besides some great pieces, there is indeed a lot of pestilent ego-ejaculation in Amsterdam. However, parts of this 10 step plan resonate a dystopian future. But then this future comes January first, when national identification is introduced for everybody of 14 years an up. A measure on which the proposal is freeriding.

Some of the proposed steps:

• Mobile camera surveillance will be used for quick actions to deter perpetrators and catch their images. Legal obstacles to make this possible will be cleared.
• Information on graffiti, perpetrators, damage and criminal cases will be centrally collected and analysed to facilitate quicker and more effective investigation.
• People will have to identify themselves when buying spraypaint cans, in order restrict the sale to 18 year olds and over.

The arrogant tone of this proposal -will be cleared, will be centrally collected, will have to identify- is irritating. But then, I can't imagine the legislator will have the will to push this through. Yes, lets just clear those legal obstacles and bring in the mobile surveillance. Central collection, of course, the evils of graffiti obviously justify these privacy trampling means. And let's be reasonable, since your kid of 12 can be asked for an ID (it sure looks a lot like a menacing 14 year old!), why not show your ID in a paint shop when you want spraypaint your car?

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Links: graffiti, proposal (Dutch only, not worth the read anyway). Anti-identification T-Shirt at Bits of Freedom, subtle as always. (Text Front: I am 13 Text Back: But I can't prove it...)

Schwarzenegger Muscles P2P Prohibition

Arnold Schwarzenegger has come his former love, the entertainment insdustry, to the rescue. Last Friday the Californian governor signed an executive order aimed at the prohibition of file-sharing software on state computers and networks. Unsurprisingly the RIAA reacts enthusiastically, and with the usual exaggeration of the importance of their own course:

"This executive order is bold, timely and warranted,'' said Jonathan Lamy, a spokesman for the Recording Industry Association of America. "The governor's action appropriately recognizes that technologies can be hijacked to compromise sensitive governmental information and, more importantly, for illicit purposes that rob the creative community of its future."

Yeh, the download of an MP3 is more important than the guts of government spilled out over the network. Megalomaniacs abundant at the RIAA.

Wisely the policy is not applied to the legislative and judicial branch. You don't want to take away the joys of downloading from either a judge or legislator. They might get irritated, follow international example and declare it legal. Then RIAA prez Cary Sherman can write what he wants. Even that the latest Usher would beat some classified documents outlining an elaborate scheme to propel the United States into the Sixth Reich.

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Extra: Tuesday this week Schwarzenegger was back to sign his name under another piece of legislation that requiers a valid email address and title for a work that is file-shared with more than 10 people outside the imediate family. In the future kids can do some serious jalhouse rock for swapping songs of their favourite artists:

California Gov. Arnold Schwarzenegger signed a law Tuesday establishing fines and potential jail time for anonymous file swappers. The new law says that any California resident who sends copyrighted works without permission to at least 10 other people must include his or her e-mail address and the title of the work. Swappers who do not include this information will face fines of up to $2,500 and up to one year in prison.

Minors can be fined up to $250 for their first two offenses, and a minor’s third offense can bring a $1,000 fine and a year in county jail. The law provides exemptions for people sending works to immediate family members and for the transmission of works inside a home network.

Thru Furdlog: Text of the law, and a related SF Gate article

How-to Suppress Internet Speech

Here's a round-up of a crackdown on two reformist websites in Iran. It reads as a how-to suppress political speech on the internet:

1. Order the Telecoms to filter the sites
2. If the technology fails you, arrest some technicians of the ISP hosting the sites
3. Go closer to the source and arrest journalists associated with the sites
4. Increase the fear by arresting the father of a formerly detained blogger, who fled to the Netherlands, from where he operates a website. The message of the Iranian authorities is clear: "We will get to you through your loved ones. We will get to anyone, anywhere. The internet is global, so are we..."

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Thru Joi Ito's Web

Blitzkrieg Blog

I've been reading the Srivener's Error blog for a long time now, and should have put it on my Hit List from the start. Now I really have to: this blitzing Law & Tech blog is the first that brings me the news of the dead of Joey Ramone yesterday afternoon. I always thought the Ramones' song titles often were as good as their songs, with classics as "Teenage Lobotomy", "Don't Bust My Chops", "The KKK Took My Baby Away" and of course "Blitzkrieg Bop". (By the way, I'd rank the Dead Kennedys a good second in mastering the song title.)

It's the Channel, Not the Code.

Yesterday British newspaper The Guardian reported that:

"The introduction of new technology designed to make credit cards safer is fuelling a mini boom in card fraud caused by the banks sending out millions of chip and pin replacements - thousands of which are going missing.

New technology? The chip/pin debitcard has been around in Holland as far as I can remember, which isn't that long, but still. It has been very populair, and brings a relatively low level of fraud. Specially compared to the current scheme in England, where you sign a receipt when paying for goods.

The article reports on a security hole in the chip/pin system, which I recently kind of experienced myself: not in the technology itself -though there is- but in the not-so-secure delivery of both the debitcard and its chip/pin key. Banks deliver them by ordinary mail, leaving ample room for interception and subsequent fraud (the article speaks of £43.4m "mail non-receipt fraud" in 2003).

Yesterday I picked up my renewed creditcard and its activation code (2 seperate envelopes) and a new pin debitcard (1 envelope) at my former addresss. They where both sent there because my bank did not recognise my signature on the moving notice I sent them. I've been using this signature for years, and now I receive a letter, at my old address, saying that it wasn't validated and my address can't be changed. They want me to put my signature on some kind of special security form, presumably so they can establish that it's still the same "wrong" signature, and reject it for a second time. And a third time, a fourth, a fifth...

In the meantime my credit card and debitcard have been laying up for grabs at my old adress. (Especially great, since my former room mate is a nutter with a lust for money.) This is not even fraud through interception in a non-secure channel, but non-arrival through ineffective verification methods. Isn't that why a pin code scheme was introduced in the first place? Well no, but maybe it's time. And maybe I'm just being punished for signing some of my money orders with Donald Fuck in a far far, childish past. They came through, but technology has "improved" since then, I guess.
Any suggestions what to sign on that security form?

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Thru The Register

Toxic Twins

At Freedom to Tinker Ed Felten has a post on "consumer self-help", in this case the circumvention of Digital Rights Management systems (DRMs) to make noninfringing use of copyrighted works. On the question why the government has to intervene to prevent a negative effect on consumer interests from (future) use of DRMs and not leave the solution to the market, Felten writes:

"I'm happy to agree [...] that the market, left to itself, would find a reasonable balance between the desires of media publishers and consumers. But the market hasn't been left to itself. Congress passed the DMCA, which bans some products that let consumers exercise their rights to make noninfringing use (including fair use) of works."

The Digital Millennium Copyright Act's (DMCA) twin sister, the European Copyright Directive (EUCD), adresses both the balance between users and consumers, and the noninfringing uses of copyrighted works by consumers. And it does this as rightholder centred as the DMCA.

Recital 31 EUCD states that "a fair balance of rights and interests [...] between the different categories of rightholders and users of protected subject-matter must be safeguarded." (italics added) The Directive, however, does not grant its own wish of safeguarding a balance, let alone a fair balance. Rightholders' interests are looked after by the protection of technological measures in article 6 EUCD, which puts a serious strain on the exhaustive enumeration of copyright exemptions in article 5 EUCD. To put it bluntly, article 6 can nibble away at the consumer interests reflected in article 5 and determine the weight on its side of the balance, and the fairness as such.

Towards the consumers' "rights to make noninfringing use (including fair use) of works", under the EUCD these "rights" are at the mercy of the EU Member States, which may choose to assign 15 of the 21 exemptions. There is no fair use right as such, and there is no recognised right of private use. This has been recently underlined in French and Belgian court cases on private copying and DRMs.

Felten asks for either a repeal of the DMCA or make its sort more wisely. This leaves open the question if the market would, without government interference in the first place (DMCA, EUCD), be a better regulator. It also leaves the question how consumers may pursue their interest, though not right, in private copying for example. While copyright law is set on medication to find its balance, consumer protection law in various European Directives might provide some help. It might not bring a total solution, but gives some counterweight as long as not even the slightest patch is added to copyright to ensure consumer interests (e.g. in the U.S. the DMCRA). Otherwise consumers might really be set to self-help and driven towards illegimate acts.
This not a pathway to the death of copyright, but to a fair balance, as copyright's European embodiment aspires.

Regulate End-To-End?

Susan Crawford has a small post on the end-to-end argument and the First Amendment at her blog. It questions if the end-to-end argument should be legislated, and drops some lines on internet layer discrimination. Interesting thoughts, but not very substantial. Guess she was just brainstorming after (re)reading Lawrence Solumn and Minn Chung's 2003 paper The Layers Principle: Internet architecture and the Law. This 100+ page paper does give some suggestions for the regulation of speech on the internet that might help to answer Crawford's question. Basic stuff like the Yahoo! case and the Pennsylvania child porn law are analysed in light of the end-to-end argument and the (seperation/violation) of internet layers.
As Solumn writes: Higly recommended!

Internet Child Porn Law Unconstitutional

On Friday a U.S. court has found a law of the State of Pennsylvania, which essentially made local ISPs liable for providing access to websites that alledgedly contained child pornography, unconstitutional. The decision noted that 'there is an abundance of evidence that implementation of the Act has resulted in massive suppression of speech protected by the First Amendment.'

It is an important decision, not in the last place because, as the decision finds:

'The Act is the first attempt by a state to impose liability on an ISP that does not directly contact with the originator of a communication. Thus, Pennsylvania is the first state to impose liability on, for example, the backbone providers or regional ISPs that route the communication [...].'

What the act does, or at least the Attorney-General that executes it, is enforce anti-child pornography policy through the destination ISP. That is, the ISP that is the last in the internet chain between source and destination, the "conduit" or off-ramp to the end-user. It provides probably the most effective point of blockage for information flowing from foreign, out-of-state soil.

One may depict the information flow on the internet as follows:
[Source] - [Source ISP] - [Internet backbone(s)] - [Destination ISP] - [End-User].
Where earlier the (legal) focus was on the Source and Source ISP (e.g. U.S. Communications Decency Act and Child Online Protection Act), or on the End-User (e.g. individual filtering systems like NetNanny), this has shifted to the Destination ISP, or even backbones.

For enforcement purposes these are interesting targets, since they are usually located in the state's jurisdiction. Many internet filtering laws have been ineffective, because either the Source or the Source ISP were located outside the arm of the law. Illegal content posted and hosted out-of-state was hard to prosecute, let alone practically shut down.

The Pennsylvania law was more than effective at shutting down content, and not necessarily child pornography. Massive overblocking resulted from the used filtering techniques by the local ISPs (DNS poisoning and URL routing), which answered to informal Notice and Take Down orders. The Attorney-General issued out of court requests to block certain sites or web pages. This meant no juridical review, nor the knowability of the filtering or possibility to complain by affected parties. A form of prior restraint, and recognised by the court as such.

The Pennsylvanian practice shows how a government may use a private party as a policing tool. How it may avoid constitutional frictions, which come with prescribing filtering techniques to individual users. How it can bypass jurisdictional problems and concentrate on the most vulnerable node in the internet chain. In the chain, outside the sight of the end-user, making use of a technical tool of enforcement deep in the internet layers.

The lengthy decision gives a good insight in the basics of the used techniques and the practical and legal consequences enforcement of law through code brings. Very much recommended, the more because this is one of the first decisions in an area that will likely become ever more important in the future regulation of the internet's information stream.

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Links: decision , court order
More on: Furdlog and Susan Crawford's blog
Background: paper by Jonathan Zittrain

U.S. Electoral Vote Predictor

Added an electoral college score icon to the sidebar. It shows the latest prediction of the electoral vote in the coming U.S. Presidential elections by electoral-vote.com. This is a great and highly trafficked website that predicts the outcome of the elections on the basis of the most recent polls and seems to do a good job at balancing out all the numbers. Stats, links, background info, and more essential info for the political junkie.

Copyright to the Test

Copy-art.net is a website that offers some arty downloads for free. By doing so it "intends to challenge the idea of intellectual property and test its limits in a copyright-free zone." Sorry, come again? Okay:

"In a copyright free society, ideas and works become more precious rather than more vulnerable, as many believe. The more ideas and works are circulated, the more valued these ideas and works will become. What you see and learn becomes part of your knowledge and nobody can change this. Your intellectual property becomes everyone's property. To give people the freedom to copy ideas and works and get inspiration from this process is something that we need to consider seriously."

Vagueness bonanza!
Interesting, copyrighted ideas, what might the IP limit on them be? Non-existent, maybe?
What I see becomes part of my knowledge and nobody can change this? Have I got an undeletable photographic memory?
And my intellectual property becomes everyone's else's? Is the ghost of Marx wandering through the site?

And how is IP to test its limits anyway, if it's supposed to be a copyright-free zone?
IP: "Hi, can I come in and test my limits, please?"
Copy-art.net: "Sorry, but this is a copyright-free zone, entrance verboten for IP."

So, a selective door policy?
No, not really, all works (and ideas) are distributed under Creative Commons licenses, the hippest clubbers of the IP world. They can enter the copyright-free zone anytime. But hey, attribution mandatory and no commercial uses of the works.
Sssst, don't tell the challengers of IP, CC is copyright in disguise.

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Thru IPKat

EC Pushes Grid Computing

The European Commission is going to pump some millions in Grid computing, calling it the internet of tomorrow. Tomorrow seems far away for the everyman, though. While the press release speaks of "giving everyone access to the immense computing power and knowledge hitherto available only to the biggest corporations and laboratories", everyone seems to entail just those bigger corporations and laboratories: the automotive, aerospace and pharmaceutical industry and the development of business and industry tailored grid architecture.

However, it has to be said, great parts of the money also flow to educational projects and general technical research and improvement. For those whose interest in Grid computing really goes deeper than the SETI@Home-project, there's a launch of the new EU Grid era on the 15th of September.

Call Me Pinko Commie Bastard

Dan Hunter, assistant-professor at the University of Pennsylvania, has a new paper out on SSRN: Culture War. It gives a nice analysis of the "pinko commie bastard" calling in the current American Intellectual Property debate, and provides some hybrid words like Marxist-Lessigism.

Here is the abstract:

Over the last ten years, much of copyright and patent has come under attack from those who suggest that capture by private interests has had a pernicious influence on public policy in this field. In the related areas of telecommunication spectrum management and internet regulation there have emerged strong arguments for not allocating private property interests, and instead considering these domains as commons property. I suggest that, together, these developments form part of a culture war, a war over the means of production of creative content in our society. I argue that the best way to understand this war is to view it as a Marxist struggle. However, I suggest that copyright and patent reform where commentators have actually been accused of Marxism is not where the Marxist revolution is taking place. Instead I locate that revolution elsewhere, most notably in the rise of open source production and dissemination of cultural content.

More from the essay:

Agents-provocateurs like Larry Lessig, Yochai Benkler, and Eben Moglen pen books and articles equating freedom and autonomy of individuals with a reform of the intellectual property system. And shot through all of this is the sense that private property interests here are out of control, and the shared commons of our culture is under attack.

This is the nature of the culture war which is currently being waged. Unlike the conflict between the left and right in US politics which is often called the culture war, this isn't a war between cultures, but a war over our culture. Who owns it, who controls it, who can use it in future, and how much it will cost? For the first time since intellectual property began its inexorable expansion there are signs of popular discontent at just what the private interests had taken from the public. [...] The culture war of intellectual property reform looks a lot like a Marxist class struggle, moved a hundred years forward, and translating the word property into intellectual property.

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Update: More at Crooked Timber

Routing Around Darfur

"The Internet treats censorship as damage, and routes around it," John Perry Barlow once famously remarked. Quoted to ad nauseam, it does not answer to the question: what if there is nothing to route around...with. No technology to beat the non-virtual suppression of speech. I realize that Barlow focused on the realities of online speech censorship. But the promises the internet brings as a router around regular (government-controlled) media and suppression seem idle when nobody actually has access to it.

A small snippet from an Amnesty International report on the massive attacks on the freedom of expression in Darfur and the media silence surrounding it:

"One problem is the lack of information in Khartoum about the conflict. People in Khartoum do not know what is happening in Darfur. On the television and the radio the government says that everything is all right in Darfur, that people receive aid and that the situation is under control. Only if you get to other sources on the Internet or on satellite television will you see the reality".

Hardly anyone in Sudan has access to the internet, or satellite TV. Not much reality to see.

The intimidation of local dissent and press the report describes, is bad. The initial lack of coverage in the Western media of the widespread rape and murder, and the current dead lock in the international community, is very frustrating. Even if you can comfortably google for the latest sickening news from behind your buzzing laptop through WiFi. Let's google this: Will there be any reality left to shock?

WiFi: Futopia Now!

Eben Moglen was transmitting full force: cut out the intermediaries, dismantle the state, forget about law, think about code...think WiFi.
Some keywords from his 45 minute non-stop monologue at the Code as Code workshop, brilliant both in depth of thought and rhetoric presentation. What started as a redress to my presentation, pretty soon turned into a futopia on popular empowerment through technology. Every citizen in New York would soon be WiFi-ed, a string of connections not to be broken and curtailing the digital middle man. The future is now, or at least ten years away, and nothing gooing to stop it, not if Eben Moglen can help it.

I guess he can. Not only is New York going wireless, the city where Moglen resides while he's on leave from Columbia University is setting up it's own, free access network. It's my former home town Leiden, and some of the Moglen magic seems to have rubbed of on this tranquil city. Initiator, WirelessLeiden, claims that its approach has greater potential than New York. Some claim, but in the meantime it is pretty weird to see some people in action in my old neighbourhood, fullfilling the futopia. Okey, it's no Philadelphia megalomania, but still, bottom-up revolution, breaking the powers that be round the coffee table.

This all came to me through an article in the Register, which claims that Amsterdam is going to be the first European capital with almost total WiFi coverage. Not for free, though there is a nice free access zone in the historic centre, run by a culture & technology institute.
And this all just a month after Moglen hit the town. A coincedence? Don't know, at least he had a great cover-up: don't preach what you practice. Pumping the propaganda into me, like a huge communist Albanian radio-transmitter. No P2P, mute the voices with a monologue. The message in a single data flow: futopia now!

Speed Demons Crash On Code

This month six so-called trajectory control systems will be activated on various highways. It's a relatively new way to measure speed and fine speed demons: a car is photographed at two points and a computer devides the time it takes to drive from the first to the second point through the length of the trajectory. If the result exceeds the speed limit it is send automatically to the police, which matches the car's license plate with it's owner, who automatically gets a fine send to his home.

The automatisation of punishment is not that new. The claim that is made neither, but still: there is no escape, the chance to get caught is 100%, 24/7. Current counter code, such as the outlawed but frequently used radar-detection devices, won't work against this all-seeing eye. Well, such is the claim. If you'd call mud code and smearing it on your license plate counter coding, then the system fails. But then that's outlawed too.

This surveillance-punishment connection is reminiscent of Bentham-Foucault's panoptic theory: self-conditioning of behaviour to preset values under the pressure of constant observation. The effects of the trajectory control system point in that direction: less than 1 % of the drivers on the trajectory still exceeds the speed limit.

The 100% claim also made me think of an example Joel Reidenberg gave in his Yahoo! essay:

[N]o legal system in a democracy can assure full compliance with all laws without resort to police state tactics. For example, drivers routinely exceed highway and road speed limits. Yet, no democratic state tries to put a policeman on every corner to assure perfect compliance with the speed limit. Such an action would be totalitarian in nature. Instead, democratic states frequently rely on law to shape social expectations and behavior rather than implement police state enforcement mechanisms.

So, I live in a police state. At least I still have a choice to break the law. Enjoy while it lasts, be a 1%-er.