Saturday, August 28, 2004

Lessig's Self-Recycling

The Apple slogan Rip Mix Burn that runs like a mantra throughout Lawrence Lessig's work, is highly applicable on his own writings. As his latest book, Free Culture, is ripped, mixed and burned from much of his old argumentation, so is his latest Wired Magazine column a remix of his first book Code. Lessig is coming full circle, and with "building on the shoulders of giants" we must think of the guru's own gigantic shoulders.

Not that the David Copperfield of Copyright magically reduces 300 pages to a single sheet. But the familiar stuff is there, slightly remixed to pleasure the ears of his fans (or should I say groupies). I have to admit I tend to be one of them, mainly because his books increasingly read like John Grisham's and he can perform some tricks indeed. The question is if he delivers in the end, or leaves his public with an illusion when the smoke clears.

The argumentation in his Wired column is recycled, as is the subject: the COPA and the related filtering of Internet porn. The COPA is an anti-porn law that has never been out of court since it's ill deceived conception in 1998. This Son of CDA was scrutinized in the last U.S. Supreme Court case of this year, and again no final decision on its constitutionality was reached. Only that it could not be applied if "less restrictive alternatives" were available. These alternatives are software filters, and in comes Lessig with his Code argumentation: he rather sees a finely crafted COPA 2.0 than the absolute, speech squashing rise of filtering systems through the market system. Better an imperfect law in the books, than an overzealous filter in your computer. He wrote it in Code, he wrote it before Code, has repeated it ever since, and now it turns up in his column, again.

The guru and his mantra, conditioning through repetition: filters bad, law better - filters bad, law better - filters bad, law better. You would almost start to move to the mantra, and rightly so. Filtering systems are highly suspect from a free speech perspective. But they may be not that suspect from a free choice perspective. Or freedom from choice perspective. Lessig asks himself a question, in his column, after recycled wisdom:

"Demand for filters would fall, however, if the government enacted effective rules that enabled parents to block porn from kids. Why buy Net Nanny software for $40 when you can get the same protection through regulation for free?"

Why? Because people want to be freed from sexual explicit content, and are more than willing to pay for a filtering system that (over)blocks more aggressively than any government mandated system or rule. Even if its use would block "a gay rights site, [and] there's nothing the ACLU can do about it. Net Nanny's censorship is free of the First Amendment," as Lessig notes. Maybe people just have more trust in the market, and could care less if some activist or educational sex site is filtered. What they don't want is underblocking, the smut slipping through the mazes, so the more aggressive the better.

In that sense Lessig's proposal for effective, mandatory rules seems a bit odd. Maybe I just don't see the trick, or it is some real magic.

He proposes that "commercial Web sites carrying material deemed "harmful to minors" mark that content with a newly minted metadata tag - say, . [...] The tag could be read by HTML-rendering software but would be invisible to users. It would divide the Net into zones the way the V-chip was meant to divide up television."

Some thoughts spring to mind: PICS ripped? COPA commercial Web site condition mixed? Lessig hybrid burned? This proposal sounds like a poor Lessig Club remix with little melody. The arguments against metadata tagging are manifold. Even if it is restricted to commercial sites, a COPA condition doomed with vagueness. What Lessig says is that filtering technology has got to be framed by a law that is written so precise that speech would hardly be burdened.
It is very reminiscent of his argumentation in Code and related articles. And yes, the call for a Kid browser is there again also:

"If such a rule were effectively enforced, it would spur the market to supply browsers that parents could use to block -tagged content, essentially creating "kids-mode" browsing."
But somewhere in the burning of the column these echoes of the past got turned upside down. Where is the Kid browser that produces a signal telling sites that a minor is surfing and that access should be denied? This instead of making every commercial pornographic -whatever those two terms may entail- website put a tag in the metadata of every single webpage. "Less restrictive alternative", not really. And what's up with the increasing amount of amateur, "non-commercial" sites that put porn on the net? No tagging, let the flesh run free?

Filtering systems based on RSACi labeling are not very subtle, but a single porn tag reveals a choice for an even harder pragmatism. But the real pragmatism is both with the parents that seek to guard their children and Lessig himself. As a true legal environmentalist he recycles his ideas from article to book to column, while the handfull of porn fearing parents will buy Net Nanny, on top of the law, on top of Kid browsers, on top of any theory.
I'm just waiting for the great magician to reveal his trick, to show there's depth in the smoke. But then a magician never does. The show goes on and I'll be watching when Lessig pulls another white rabbit out of his high hat.

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Update: Adam Thierer has a post at The Technology Liberation Front in which he (somewhat critically) discusses Lessig's article and compares it to a new essay by Jeffrey Rosen, called The End of Obscenity.
Edward Felten subsequently reacts on Thierer's post at his Freedom To Tinker blog with two posts: 1 & 2.

Long John Ashcroft

Where chastity rules, rules dictatorship.
Jan Wolkers

When the U.S. Attorney General John Ashcroft isn't too busy with downsizing constitutional rights in the godgiven War on Terrorism, then he is focusing on one of his other Wars. The War on Drugs always is a favorite, and the War on File Sharing freshly started, but nothing makes him feel like a man as the War on Porn. Long John Ashcroft is the biggest porn star in his self-directed movie.

In Wired an article on an old porn law, revived and aimed at the nodes of control in the distribution chain of this dirty speech: not just the producers, but the disseminators are focus of the crack down. What's next? Prosecution for reading porn? Criminal punishment for sexual acts in the confines of one's own home? Oh, wait, that's no future fear, that's reality now. In the U.S., where Ahscroft's armies march under the dictatorship of chastity.
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More background at The Importance Of...

Friday, August 27, 2004

Code is Law. NOT!

Put up a small report at the INDICARE site on the Code as Code conference in Amsterdam, July 1 & 2. On Lessig's legacy and beyond: Code is not law.
The report is part of a new emission of (much more interesting) articles in the third INDICARE Monitor. Some nice info and opinions on DRM and related stuff out there. But then I'm a bit biased.

Thursday, August 26, 2004

Stretched Copyright

A court in Amsterdam has concluded today that a cigar salesman has violated the copyright of a woman by displaying her picture on the door of his shop. He suspected her of stealing. The salesman put up a photo of the 79 year old woman with the text "This woman has stolen here!". Her family claimed she suffered from Alzheimer and sued the salesman. The court decided that the woman "did not give permission to publish her portrait". It also noted that "publication of the picture contains an element of punishment" and leads people to play for judge.


I used to play sports on Astroturf for years, but never was aware that the term is used to describe a professionally induced (media) campaign presented as a spontaneous popular uprising. Internet tools are said to have increased this practice, particularly now they are used as weapons of propaganda in the current political arena in the U.S.. This to the dismay of newspaper editors, who try to filter out the machinal generated letters. A nice, lengthy article on the phenomenon can be found here .

Be sure to skip to the end if it gets boring and read the opinion on anonymous posting from a certain Belinda Brewster from Plymouth: "You should demand accountability of your readers if they choose to opine whether it's in their own words or with a form letter."
Guess there aren't any knocks on the door or lynching parties in Plymouth for political or any other dissent. Guess Belinda doesn't care for a right to read anonymously.

Thru Techdirt

Copy-Paste Court Culture

An interesting posting at the Volokh Conspiracy on a U.S. District Court that copy-pasted a proposed opinion and presented it as its own. It did not even try to keep up the facade of judicial impartiality. A Circuit Court remanded this practice and both the District Court's opinion and the appellee's proposed opinion that was plundered, are attached to the Circuit Court's opinion. Get it? Seek the differences.

Wednesday, August 25, 2004

Fear and Filtering in Samoa

"I want you to understand that this man at the wheel is my attorney! He's not just some dingbat I found on the Strip. Shit, look at him! He doesn't look like you or me, right? That's because he's a foreigner. I think he's probably Samoan. But it doesn't matter, does it? Are you prejudiced?"
Hunter S. Thompson - Fear and Loathing in Las Vegas

BBC News brings an interesting story on the national ICT strategy of the Pacific island of Samoa, which seeks "internet for all" to boost the economy. The story reveals some sparks of prejudism towards the internet, though maybe prejudism is a too harsh a word here. Fear for a decline of the cultural heritage and national values under pressure of the global network might be a more subtle description. The Dean of the Faculty of Science and the National University of Samoa says it as follows:
"One of the things that I worry about is how this exposure is going to impact on the culture. [...] We're exposing ourselves to a whole lot of philosophies and ways of life, bringing in a lot of western values."
Yesterday I noted in relation to the Yahoo! case the clash of speech values between western countries, notably the U.S. and Europe/France. The clash of values, be they cultural or political, can be a reason for states to fence out the net. Possibilities are geolocation, as in the Yahoo! case, or national gateways like "The Great Firewall of China". The effectiveness of these techniques is debatable, but they are employed to fence out dissident and/or unwanted speech. Porn is, as always, seen as the great smut the internet generates, and for many a country outlawed. No difference there for Samoa, or at least its Prime-Minister:
"The internet is OK so long as we impose the necessary controls to cut out pornography which would be damaging for our people. [...] This aspect of control will always be with us."
He has proposed to implement a national filter, but this technical code solution has been dropped for a tightening of traditional, legal code: the punishment of anyone downloading pornography. In Saudi Arabia similar concerns did result in national filtering, which is described by its government as "preserv[ing] our Islamic values, filtering the Internet content to prevent the materials that contradict with our beliefs or may influence our culture."

I guess the political and religious motivation, driven by a fear of globalization, are present in Samoa. Maybe if the internet does boost the local economy, they will find the resources to implement national filtering, despite technical difficulties. But then there's nothing which a Samoan attorney can't fix. Or am I prejudiced now?

Peugeots' & Renaults' DRM

The Financial Times presents a DRM story today as some kind of scoop, while it not really is one. EMI France and retailer Fnac are said to have been accused of selling DRMed CD's that can't be played on some computers and car stereos. The article talks about legal action as something new, while this is a story long gone. There have been several legal cases in 2003, which address the correct labeling of CDs and protection of consumers against being mislead in substantial characteristics of the product. In one of them EMI France was condemned to label their CD's correctly, and in another one EMI France is ordered to refund someone all 9.50 euros for her unplayable CD. WOW! (Link to the French texts: choose the first two on the list and push the Qui button if you agree with the copyright policy. Or not agree, and want to read them anyway.)

The decisions are also interesting for French car lovers: Renaults and Peugeots are scattered throughout.

By the way, anyone who wants to see the pit of hell, try to go shopping at the Fnac in Les Halles near the Tuileries in Paris on a Saturday.

Monday, August 23, 2004

Yahoo!: Internet Reterritorialization

Santa Clara is a suburb of Paris. That is, if we have to believe the French Court decision in the well-known 2000 LICRA v. Yahoo! case (PDF French Text, PDF English Translation). And we have to, or more precise, according to the Ninth Circuit Court's ruling of today Yahoo!'s attempt to block enforcement of the French decision on First Amendment grounds is void until the original French parties (Licra et al) have subjected themselves to American Court themselves (PDF Decision).

The new ruling is about jurisdiction, as was the original French case. The Yahoo! cases also touch upon two other interesting and related issues: a clash of Free Speech values (US v. French/European) and the possible rise of geolocation techniques to reterritorialize the Internet. Most of what follows is derived from my forthcoming essay Speech Regulation Through Network Architecture: A Public-Private Hybrid. For this specific subject the essay leaned on the work of Joel Reidenberg. At the Code conference in Amsterdam last month Reidenberg expressed his concerns towards the clash of cultures on the Internet and thought reterritorialization through geolocation to be inevitable. This contray to Eben Moglen and others, but this will be another posting altogether if time allows.

In the original case the French Court ruled that the American company Yahoo! should and could block the access of French citizens to those parts of its auction site that offered Nazi related materials. It based its jurisdiction and the applicability of French law on an effects doctrine: any action committed outside national territory, affecting a French citizen within the national border, may be subject to French law. While the Yahoo! site was hosted abroad on an American server, it could be viewed within in the French borders and thus effect French citizens.

Though Yahoo!'s exhibition of Nazi materials is certainly allowed under American Constitutional law, it is prohibited by the French Criminal Code. After the gruesome genocides in the Second World War many European democracies found a restriction on freedom of racist speech justified. This contravenes with the conception of free flows of information, as established by the American First Amendment and coded in the architecture of the Internet. With some enthusiasm Lawrence Lessig wrote in his 1999 book Code: “We have exported to the world, through the architecture of the Internet, a First Amendment in code more extreme than our own First Amendment in law." (paperback, p. 167) This “extremism” is not necessarily reflected in the constitutions of other democracies or international treaties. Both the UN's International Covenant on Civil and Political Rights and the European Convention on Human Rights and International Freedoms allow restrictions to hate speech. The exhibition of Nazi materials can be judged as such.

So, the architecture of the Internet may adhere to First Amendment values, these values are not endorsed by every other country. The allegation that the French Court order to restrict the access of French users to materials, which are rightfully forbidden under French law, threatens the freedom of expression, is based on the premise of certain, American, values. Criticism that the Yahoo! case is a form of European Internet imperialism can be answered with equal rhetoric: the First Amendment was the first to invade European soil. Through the Internet, through code.

In order to support the claim of jurisdiction in the first Yahoo! case the feasability of geolocation techniques was researched. Geolocation techniques offer geographic localization by connecting IP addresses to the nationality of a user. Every time a user connects to the Internet his ISP assigns him an IP address out of the block of addresses assigned to the ISP itself. Names and addresses of these ISPs and the blocks that are assigned to them, are stored in a database which is in the public domain. With this information a source can differentiate in content depending on the location of the user. It facilitates the adjustment of language per region and more personal advertising. It also supports the enforcement of local law on foreign soil through code. Blocking of region specific IP addresses at the network layer will prevent out of state citizens from accessing a source.

The French efforts to create a form of zoning through geographic determinism clash with the original ambiguity of the Internet infrastructure towards the origin of data. Determination on the basis of IP addresses has a 70% accuracy rate, according to the experts' opinion in the French case. The accuracy of this accuracy rate aside, this figure conceals another problem. It is nothing but certain that it has a lasting value, and if, how high that value will be. Nothing in the design of the Internet restrains a reallocation of blocks of IP addresses to a different country. A user, who's presumed to be French on the basis of an IP address today, may have another nationality in the future. Using IP addresses as the basis for geographic determination leads to over- and under-inclusive blocking, the severity fluctuating with time. Besides, those who really want to obtain Nazi materials through the Yahoo! Site, can use anonymizers to circumvent the IP address blocking scheme. A technology that hides the origin of the user by connecting to the site through another server. It would make it virtually impossible to determine a geographic location. This leads to an underinclusiveness, which shows that regulation through code is as good and effective as the code allows.

Today's decision has not added much to the clash of free speech values or geolocation issues. It has given another spin on the question of jurisdiction from a traditionally legal perspective. We'll have to wait for a ruling thar adressess the technological counterpart of this jurisdiction, geolocation, in more detail. Until that time we have a fresh decision that probably stinks in the eyes of digital libertarians of days gone by and days to come:
France is within its rights as a sovereign nation to enact hate speech laws against the distribution of Nazi propaganda in response to its terrible experience with Nazi forces during World War II. Similarly, LICRA and UEJF are within their rights to bring suit in France against Yahoo! for violation of French speech law. The only adverse consequence experienced by Yahoo! as a result of the acts with which we are concerned is that Yahoo! must wait for LICRA and UEJF to come to the United States to enforce the French judgment before it is able to raise its First Amendment claim. However, it was not wrongful for the French organizations to place Yahoo! in this position.
The waiting has started, and not just for Yahoo!.
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There is remarkebly little blogging on this decision. Always prolific, Scrivener's Error does give an analysis. I may not agree with his last paragraph, though it does point to the clash of free speech values I noted.
More on Susan Crawford's blog, which doesn't allow anonymous posting for some reason. Also on Legal Theory Blog, and a petite by Froomkin.

Friday, August 20, 2004

Scalia Hits Amsterdam

Professor Mark Tushnet blogs on Balkinization and makes a comparrison between former Supreme Court Judge Felix Frankfurter and current Iron Fist Antonin Scalia. Tushnet notes that over the years Scalia's legacy may prove to be not that strong, as Frankfurter's.

I rather hope that Bob Woodward takes a break from sniffing at the White House and going for the slowest news analysis award at Larry King's show. A break to write a follow up to the highly enjoyable The Brethren. On Chief Justice Burger's apprentice John Rehnquist and his Merry Men, with Scalia as the Sherriff of Nothingham. But wait, that's what Tushnet's new book, A Court Divided: The Rehnquist Court and the Future of Constitutional Law, will be about. I hope.

In the meantime I'll drop by at a rare Scalia schow, September Ninth, here in Amsterdam. The moderator will be the former head of Dutch intelligence, who has an even more impressive round head than Scalia, presumably full of brains.

Thursday, August 19, 2004

Grokster v. MGM Affirmed

In San Francisco the Ninth Circuit Court of Appeals has affirmed the Grokster v. MGM case. Judge S.R. Thomas wrote the opinion of MGM v. Grokster:
This appeal presents the question of whether distributors of peer-to-peer file-sharing computer networking software may be held contributorily or vicariously liable for copyright infringements by users. Under the circumstances presented by this case, we conclude that the defendants are not liable for contributory and vicarious copyright infringement and affirm the district court’s partial grant of summary judgment.
The Court upholds the famous Betamax standard of Sony v. Universal under which a claim of contributory copyright infringement is defeated if a technology is “capable of substantial” or “commercially significant noninfringing uses”:
In this case, the Software Distributors have not only shown that their products are capable of substantial noninfringing uses, but that the uses have commercial viability.
The Court decision can be found here.
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There is an ever growing feast of links at The Importance Of...

Wednesday, August 18, 2004

Freedom From Choice

Freedom of choice is what you got
Freedom from choice is what you want
Devo - Freedom of Choice

This is pretty sad: electro überdoctors Devo have lend their name to the new RealNetworks Freedom Of Music Choice campaign. It's always disturbing to see old heroes sell out, but Real's attempt to present its fight for market share as a consumer choice issue is just so lame. This is the header of the site:
Choice Rocks! Consumers are getting a raw deal with the status quo in digital music, which limits healty, open competition that drives down prices and encourages innovation. Stand up for your right to Freedom of Music Choice.
Exactly five links are presented in the bloglist, one of those to Lawrence Lessig and another to Edward Felten's Freedom to Tinker blog. Smells like a hypocritecial association with freedom orientated academic thinking.

Of course the site was swamped pretty quickly by Macfreaks and people just plainly annoyed by this somewhat pathetic attempt of Real to present itself as the great fighter for consumers. Also read the comments to the Devo "interview".

And for Devo, I guess they're through being cool, at least I hope so. Otherwise there's always this band I saw on some nightly junk yard party in San Francisco: Mongoloid. (And Cookie Mongoloid was even better.)
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Here's another analysis of the subject by A Copyfighter's Musings.

Monday, August 16, 2004

Porn Is Good: ISPs to Block Anyway?

Two news flashes on Internet porn filtering from Australia. They remind me of the fear mongering of almost a decade ago, accelerated by the infamous Time cover story on Cyberporn. That story was of course based on a fraudulent report by Martin Rimm. A new, confidential paper on Internet porn from the Australia institute is said to propose compulsory filtering at the ISP level in the Internet chain. That is, cut out the smut before it may even reach the home and not rely on individual (parental) filtering by the end-user.

This raises more than a few freedom of expression issues. While child porn is generally deemed illegal and not constitutionally protected, pornography is. Hence the legitimate, though maybe not agreeable argumentation that child pornography could be filtered at an ISP level. (This besides substantive problems with filtering, like over- and underblocking.) The implementation of this scheme on pornography is something else. This is and should be every adult's own decision. And every parent should have and has the choice to guard his children against porn, or hate speech, or the flowers and the bees and the joys of life, for that matter. State interference should be minimal.

The confidential paper is used by the Australian Labor Party as ammo against the failing anti-porn policy of the government. Labor prominent Carmen Lawrence actually agrees that adults can make their own decisions about what they see:
"But we're not talking about adults, we're talking about children. [...] In the past, a movie or a magazine could be policed for adults, but the internet is entirely without age limit. I don't think children should be exposed to this stuff or subjected to the sexualising influences.
Indeed, and instead of implementing a zoning regime to guard access to that virtual porn mag or movie, these are filtered into oblivion. We are talking about adults, that is part of the problem, which isn't as problematic as a newer study suggests: Porn is Good for You!

Well, that would be a somewhat enthusiastic conclusion from a research project sponsored by the right-wing Australian government. The executive director of the left-wing Australia Institute, author of the ISP filtering paper, was quick to react:"No man who regularly uses pornography can have a healthy sexual relationship with a woman."

Yes, it makes you go blind, pulps your spleen and shrivels your... Sounds like political opportunism: right-wing propaganda in left-wing hands. Or worse, dogmatic academics presented as fashionable ideology. But mostly, opening a time capsule better left burried.

Thursday, August 12, 2004

Falwell to Arms

CNN reported on Tuesday that Jerry "Moral Majority" Falwell, the U.S. televangilist, won a trademark dispute over This site, critical of Falwell's fundamentalist Christian rants against homosexuals, was said to be nearly identical to the trademark "Jerry Falwell" and likely to confuse people. What's more, it was ruled that the site's gay activist operator tried to divert people from Falwell's official website "with the direct intent to tarnish or disparage" him. Falwell agrees, of course:
"Mr. Lamparello was not only attempting to infringe on my name for personal gain, but, for whatever reason, he is extremely hostile to the message of the Gospel I preach and was therefore trying to do damage to the message I deliver."
Well, the Tinky Winky is gay remarks aside, him blaming gays for helping the 9/11 attacks to happen, might have something to do with it:

"The abortionists have got to bear some burden for this because God will not be mocked. And when we destroy 40 million little innocent babies, we make God mad. I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People For the American Way – all of them who have tried to secularize America – I point the finger in their face and say ‘you helped this happen."
That Falwell has a justified argument for trademark infringement may be the case. His motivation to get the site taken down might have some other motivation. Curtailing the First Amendment through copyright, trademark or other fields of law is more than common practice.

If the word of critique is crippled, there are at least two reactions:
1) Tocqueville's take on Madison's Federalist 51:
"If the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority, which may at some future time urge the minorities to desperation and oblige them to have recourse to physical force."
2) Bring to mind what the good preacher once said in the Campari ad for Hustler magazine and just smile in silence:
"I always get sloshed before I get out to the pulpit. You don't think I could lay down all that bullshit sober, do you?"
The first is to be feared, the second to be cherished, and the middle way to be preferred: speak, speak, speak.

Tuesday, August 10, 2004

Nodes of Control

The extension of liability has been a hot issue as part of the U.S. INDUCE Act, on which I posted earlier. In my last posting I shortly mentioned the liability of ISPs in relation to notice and take down procedures. Now both topics kind of come together in an essay posted on SSRN: Holding Internet Service Providers Accountable. Chicago Law School Professors Doug Lichtman and Eric Posner write on the extension of ISP liability in order to improve cybersecurity, with an economic underflow, of course.

Internet service providers are today largely immune from liability for their role in the creation and propagation of worms, viruses, and other forms of malicious computer code. In this Essay, we question that state of affairs. Our purpose is not to weigh in on the details - for example, whether liability should sound in negligence or strict liability, or whether liability is in this instance best implemented by statute or via gradual common law development. Rather, our aim is to challenge the recent trend in the courts and Congress away from liability and toward complete immunity for Internet service providers. In our view, such immunity is difficult to defend on policy grounds, and sharply inconsistent with conventional tort law principles. Internet service providers control the gateway through which Internet pests enter and reenter the public computer system. They should therefore bear some responsibility for stopping these pests before they spread and for helping to identify individuals who originate malicious code in the first place.
I'm not sure if I'll agree with them that there is a trend away from liability. I'm not sure if I'll agree with them at all. I'll see...

Notice & Terminate

In his Toronto Star Law Bytes column Canadian Law Professor Michael Geist discusses the recent call of the Canadian Recording Industry Association (CRIA) to introduce a "notice and terminate" scheme for removing alledgedly copyright infringing material by ISPs. Rather than start up a take down procedure after a notification that a subscriber offers copyrighted materials for download through P2P, the CRIA proposes that an ISP "ought to kick that subscriber off the system." No due process, no verification if the accusation of alledged infringement actually holds ground, just pull the plugs.

Rightfully Geist dismisses this call as unfair and unworkable and provides an alternative system, characterized by four steps:
"First, a copyright holder, having exercised appropriate due diligence in confirming an alleged infringement, sends a notice to the ISP.
Second, the ISP promptly notifies its customer of the allegation and leaves it to the customer to voluntarily take down the content.
Third, if the customer refuses to take down the content, the copyright holder applies to a Canadian court to order its removal. The ISP serves as a conduit to ensure that the subscriber is aware of the court proceeding and can challenge if desired.
Fourth, if the court issues an order, the ISP responds to the order by taking down the content."
This scheme should not only prevent over the top solutions like termination, but open up the road to a court process for customers. This would at least provide more user protection than letting a private party, with possibly disturbing economic motives and little expertise, decide if material is infringing or/not. At least, on paper. It is questionable if customers will not remove alledged infringing material without court review, to avoid costly and lengthy legal procedures.

In the U.S. the notice and take down procedure is implemented as a condition for exception to ISP liability. A service provider which expeditiously removes or disables access to infringing material after being notified by the copyright holder is provided a “safe harbour” from damages. This notification procedure has to follow a certain process, something which is missed in Europe.

The applicable article 14 of the Electronic Commerce Directive essentially leaves the procedure of notification to be regulated by codes of conduct. There is a lack of a (public) standard notice and take down procedure and without procedural safeguards ISPs might be tempted more easily to take down certain speech. Notified of alledgedly infringing or illegal content they have to make a decision: take down the content immediately, and possibly estrange a subscriber, or face potentially high liability. When making a choice between the two options the loss of a subscriber may seem to be the path of least resistance. Or better, of the least costs. The current legal regime creates an environment in which the incentives to take down content are higher than not taking down.

It's time Geist starts giving some lectures in Brussels.

Monday, August 09, 2004

Dynamic Duo Strikes Again

Hewlett Packard and Philips are at it again. The dynamic duo that partly supplied the basis for the Final Report of the European High Level Working Group on DRMS, have received approval for their Video Content Protection System (VCPS) by the United States Federal Communication Commission (FCC). VCPS is a copyright protection system that lets consumers record digital television, while preventing further dissemination outside the home environment. VCPS is reigned by the FCC's broadcast flag scheme.

The broadcast flag is a technological measure to control the distribution of digital over-the-air television content via p2p-systems, and blurs the regulation of broadcasting and the Internet. In order to protect revenues from second-market sales and advertisement it expands FCC-protectionism to the ends of the network.

The broadcast flag consists of meta data and is transmitted with the digital television signal to “tell” a receiver of these signals whether it may redistribute the content or not. To be effective the architecture of this receiver must facilitate a trusted environment, which can guarantee that the tagged content is only distributed when the broadcast flag allows it.

The FCC has made it clear that the broadcast flag will be applicable to any device that may receive digital television signals:
“We further note that we intend our redistribution control regulations to apply to any device or piece of equipment whether it be consumer electronics, PC or IT device that contains a tuner capable of receiving over-the-air television broadcast signals.”
If a computer contains a receiver card for digital television signals, the data stream between this card and other applications, and finally the Internet, should flow over a secure channel. The architecture of the computer has to be modified to achieve this, embedding an island of control into the open platform that it is. In result the implementation of the broadcast flag not just restricts the user's (fair use) control over copyrighted content, but also over part of its computer. The FCC tries to replace the red flag of piracy with the broadcast flag, but boards computer hardware and the Internet in its effort.

This is a great quote of Vikki Pachera, vice president of Alliances and Business Development, HP:
"While developing the Video Content Protection System, we continually kept the perspective of the person sitting in their living room watching TV as a dominant part of the equation."
The couch potato consumer watching Wheel of Fortune, who doesn't leave his living room but to get another Coke from the fridge between commercials. This kind of thinking shows how social relations resulting from incumbent communicative networks (broadcasting) tend to be sustained by the institutions that provide them and feed on them. What is more, they are sustained and often projected on emerging technologies (Internet). While its architecture undermines many of the technological and economical justifications of the broadcasting model, the Internet has been interpreted in light of, and fitted into, incumbent structures. And here we go again. The present is good enough for the future, and less flexibility is more joy. Thanks FCC, thanks Dynamic Duo.
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For those who master Dutch, here is an article on the broadcast flag I co-wrote some months ago.

Friday, August 06, 2004

Virgin Juices Apple

An interesting development in the ongoing juicing of Apple's iPod: VirginMega, Vrigin's French online music venture, has accused Apple of anti-competitive behaviour by not licensing its FairPlay DRM technology. It has filed a complaint with the French Competition Council and a hearing is expected somewhere around October/November.

Though the data are disputed, the iPod is said to have an ever increasing market share in the flash/hard-drive music players, with reported numbers as high as 50%. Since the iPod isn't compatible with the DRM and WMA format Virgin uses for it's songs, Virgin has asked Apple to license FairPlay so they can code it into their songs and enable compatibility that way. As with RealNetworks, Apple has refused licensing so far.

Real tried to reach his goal through technical code with the creation of Harmony, which allows Real's songs to be played on the iPod. Something Jon Lech Johansen and the Hymn project made possible much earlier.
Virgin has now taken the path of legal code and filed a complaint. It might say that Apple's business model is focussed on the prevention of competition rather than consumer choice. The non-licensing and use of the FairPlay DRM in combination with the integration of the ITMS and iPod may function as an anti-competitive action on the complementary market.

Real's "hacking", as Apple has called it, will probably be questioned in court anyway. Intertwinement of technical and legal code to juice the iPod is as probable as always.

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Link to Register article on VirginMega complain.

Link to VirginMega, which has this great announcement: "Pour surfer sur ce site depuis un Mac vous devez utiliser Internet Explorer 5.2 et supérieur, comme navigateur." Talking about compatibility...

A good oversight of the Apple - Real riot can be found at A Copyfighter's Musings

Don't Innovate: Regulate

Timothy Wu, writing at Lessig's blog this week, has posted an alternative to the U.S. Inducing Infringement of Copyrights Act (IIC), formerly know as the INDUCE Act. This act would massively expand the field of liability for copyright infringement, possibly sweeping producers of technological devices and providers of (p2p) services into illegality. Its abstract wordings create great uncertainty towards the legal status of technology and use thereof. The proposed act goes against the current safe harbour condition of "substantially non-infringing uses", as established in the landmark Sony v. Universal case.

Wu's Inducing Innovation Act tries to provide clear boundaries towards the scope of liability for parties who offer a new product or service: a clear intent to induce infringement (accomplice liability), and not mere knowledge of possible infringing uses, has to be established. This provides a stricter interpretation of the inducement to infringe, and could leave more breathing space for innovators.

It is a somewhat more positive approach than Ernest Miller's, who collects technologies and fields possibly outlawed under the INDUCE Act on a daily basis. As the sole executioner he puts them before the firing squad, rattling the legal provisions machine gun-style. Sometimes his shots seem to miss, but he usually is right on target. Body count 'till date: 21.

Wu's proposed Act is no friendly fire, but it is questionable if it will have any effect beyond the academic.

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For your viewing pleasure a link to the video of the hearings on the Act.
And here is a written testimony of the witnesses and the statements of Sens. Hatch and Leahy, who introduced the Act.

Thursday, August 05, 2004

Foucault in Cyberspace Redux

Ever since writing my masters thesis I've been fascinated by the work of Michel Foucault, especially in relation to the Panoptic theory of utilitarian scholar Jeremy Bentham. The title of my thesis was the same as the one this blog carries. It refers to both technical and legal code and the constitution that frames them. Then I did not know yet that Bentham's last, unfinished work on the theory of constitutional democracy was of the same name. I should have known better.

It was James Boyle's essay Foucault in Cyberspace, which introduced me to Bentham & Foucault's thinking on societal control through (information) networks and architecture. This is of course very much the premise on which Lessig build his book Code and Other Laws of Cyberspace. His metaphor Code is law, is the subject of a research project I've been working on. It investigates the viability of this metaphor for different fields of law - Freedom of expression, Privacy and Intellectual property law - in the light of an adapted version of Lon Fuller's legal criteria from his Morality of Law. The outcomes will be published somewhere this fall and put online before that. I wrote the essay on freedom of expression: Speech Control Through Network Architecture, A Public-Private Hybrid.
It specifically investigates how the entanglement of public and private regulation of speech on the Internet through its code may restrict the freedom of expression. That is, how the state may use private parties to enforce public policy and circumvent constitutional protections of speech in the process. An enforcement through private nodes, which might reflect a move towards utilitarianism at the cost of speech rights.

Bentham, Foucault and a public-private hybrid are also part of a new essay by Julie Cohen, posted on SSRN: Normal Discipline in the Age of Crisis. The abstract felt familiar and made me smile:
As a byproduct of the asserted imperative to control flows of unauthorized information, purveyors of intellectual goods are moving to build into delivery systems for digital information a range of capabilities that insert both surveillance and enforcement functions into private spaces and embed these functions within communications networks, protocols, and devices. This essay offers a framework for theorizing this process that is informed substantially by the work of Michel Foucault and Anthony Giddens. The extension of intellectual property enforcement into private spaces and throughout communications networks can be understood as a species of disciplinary regime similar to those that Foucault sought to understand, but it is not exactly like any of those studied by Foucault. Instead, it represents a new, hybrid type, which locates the justification for its pervasive reach in a permanent state of crisis. Although the success of this hybrid disciplinary project is not yet assured, the model of social change elaborated by Giddens suggests that its odds of success are by no means remote. Power to implement this discipline in the marketplace for digital content arises from a confluence of private and public interests and is amplified by the dynamics of technical standards processes. The emergent model of crisis discipline has profound implications for both the production of behavior and the production of information spaces, and raises pressing questions about the future of the networked information society.
I highly recommend it in advance, as I expect it to be an excellent paper. But then I'm a bit biased, author and subject wise.

Wednesday, August 04, 2004

Google Matchmaking

The "unintended" consequences of free-Blogger. I write a somewhat critical piece on DRM policy and Google's search-based technology ads two pro-DRM advertisements to my blog: 1, 2. At least I get a chance to comment on this crooked match. I guess content does float on commerce.


My brains were washed in San Francisco.
I got the whole cliché lefty package-deal when I decided to spend the last winter of my study in SF: a house run by a genuine anarchistic roommate and a university so politically fuelled that explosion sometimes seemed imminent. I had a fantastic professor for First Amendment law, who gave the greatest lectures ever. His nuance seemed to come from another world compared to my professor for Journalism and the Mass Media. I enjoyed her lectures, which were insightful and open, even if at times they seemed to have one soul purpose: the dismantling of the corporate American media system. Revolution starts in the class room, yeh!
She required us to read Robert McChesney's Rich Media, Poor Democracy: Communication Politics in Dubious Times. It was an overwhelming read, in sheer volume of information, ideas and the cry for reconstruction of the media.

I guess my brains never fully dried up after McChesney's rigorous washing. They're dry enough however, to start reading another book on media reconstruction. Dan Gillmor has a new one out: We the Media. On grassroots journalism, blogs and the dismantling of Big Media. It can be downloaded for free online under a Creative Commons license. I don't expect the McChesney mind bashing, but then my brains are hardened since San Francisco.

Tuesday, August 03, 2004

Three Little Pigs

Finally the summer has arrived. Just sat outside in the sun for a few minutes, taking a break from reading the Final Report of the European Commission's High Level Group on Digital Rights Management (HLG). It's lineup is content industry galore: GESAC, IFPI, Vivendi, Eurocinema, FEP – Federation European Publishers, BBC, France Telecom, Vodafone, Fast Web, Philips, Nokia, Alcatel, Hewlet Packard, Siemens. Even better, the three papers that form the core of the report (DRM and Interoperability, Private copying levies and DRM, Migration to legimate services) were provided by acclaimed objective sources Philips, HP and the IFPI. The IFPI represents the international recording industry, and has clear thoughts on copyright infringement:
There are many different terms for it, but unauthorised copying and dissemination of copyrighted works is theft, pure and simple. Pirates are the enemy of creativity and all creators. [...] To secure the same sort of protections in the on-line world that the music industry enjoys in the analogue world, copyright laws need updating. The fundamental principles behind the laws, however, remain unchanged. Copyright laws must ensure that artists, composers and record producers are strongly protected from internet piracy. Rights holders also need to be able to use the technologies of the internet to manage and control the use of their work
Theft, piracy, enemy, and finally the three little pigs: artists, composers, record producers. The big bad piracy wolf is coming, so let's start building before he huffs and he puffs and he blows their house in. DRM for building blocks and legal protection to cement it together. Familiar words in a familiar story, echoed in the HLG's final report:
An active political commitment from the European Commission and the Member States for the protection of content delivered via DRM is the way forward in the context of the legal framework, most notably the Copyright directive 2001/29/EC and the directive on the Enforcement of Intellectual Property Rights.
I agree with the IFPI that "copyright laws need updating", though not so much to "secure the same sort of protections in the on-line world that the music industry enjoys in the analogue world." Both the Copyright Directive and the recent Enforcement Directive are more than apt to legally protect the (anti-circumvention) interests of the music industry. What should be asked for is an updating to secure the same sort of protections in the on-line world that users (as in consumers) enjoyed in the analogue world. The current rights holder centered copyright laws provide little practical protection for citizens. They can huff and puff "copyright limitations" as hard as they want, but content protected by DRM bricks is hard to blow away.

That there is an "active political commitment", as the HLG seeks, is more than revealed by its own composition. No surprise then that the only organisation representing consumer interests, the BEUC (Bureau Européen des Unions de Consommateurs), distanced itself from the greater part of the final report. It did not support the Private copying levies and DRM and Migration to legimate services papers, since consumer interests were not addressed at all.

We all know how the story ends: the big bad wolf finds a way round the bricks. He comes down the chimney, and ends up in a pot of boiling water, which the pigs have put on the fire. The pigs boil the wolf and eat him instead.
Copyright law makes fairy tales come true.

Vangelis Confronts European Commission

The consultation by the EU Commission on the Commuication on copyright collecting societies, titled "The Management of Copyright and Related Rights in the Internal Market"(PDF), resulted in a list of 97 public answers by 105 organisations.
There even is a reaction by the Greek Keyboard God Vangelis! He has got an interesting opinion of human rights:
The right of choice for an artist to control certain aspects relating to the destiny of his works is deriving from and characteristic of our European Culture and the Civilized World, it is the utmost of human rights. (Italics added)
Personally I think Vangelis' take on human rights is somewhat of the Richter. Maybe he should think of Creative Commons licensing, a scheme that has more than a bit of friction with collecting societies. Though I don't see much creatvity in pushing a button on your Yamaha sound organ. wink

Anybody Out There?

I'm jumping into the death pool. Ready to swim some laps between the forgotten and soon-to-be forgotten voices in the blogosphere. Don't know where I'm heading, or how fast I'll sink to the bottom. Just feel like having some exercise, in the broad waters of law and culture and anything that binds them together.
So, the bets are open: swimming or sinking, I dive in.