Monday, March 30, 2015

Can a newspaper safely report an employment dispute, especially when it has political (or fairness) implications?


An article by Chico Harlan on the Washington Post Wonkblog reports that a manager at a franchised Days Inn in Pine Bluff, AR threatened to sue (the newspaper and perhaps the reporter) if the paper published an article involving him and/or a particular employee who would be terminated after talking to the Post about the small increase in the Arkansas minimum wage.  The link is here. The manager is reported to have made a comment about employees wanting “free money”.
  
It appears that she was terminated for talking to the papers, although the facts are a bit complicated.
Michelle Singletary tweeted the story today. 
  
There’s no question that it is difficult for people to raise families on low-wage work.  In some cases, poor choices have contributed to the workers’ situations.  Is this a legal situation, like my “conflict of interest”?  It hardly seems that she makes enough or has enough responsibility.  Is it whistleblowing?  Not exactly.
  
It’s probable not something that could be rectified in court.  But hopefully, other businesses in the area will offer hire the person, given popular outcry.  (That’s better than “gofundme”.)  And hopefully Wyndham Worldwide will step in and exercise a tighter rein on the acceptable conduct of management of its franchised properties, because stories like this are not good for its brand or its ability to provide customer service. 
  
Wikipedia attribution link for photo near Pine Bluff by Keith Wahl, Creative Commons 2.0 license


Friday, March 27, 2015

Broken links on some of my older domains: some feedback


Recently, I got an email from a college student about some broken links on my “doaskdotell.com” domain.  In fact, the page in question was a “links” reference page, and the links in question concerned Gays and Lesbians for Individual Liberty (GLIL) which was very active in the 1990s. I was the editor of its newsletter, “The Quill” in 1995 and 1996. 
  
I’ve experimented with several domains, as summarized on Wordpress in January 2014, here.  I started with Blogger in January 2006 and started increasing my use of it around the start of 2007, and using the “doaskdotell.com” domain less.  Generally, the only two files on “doaskdotell” that I maintain a lot to day are the “XREF” (upper left) cross reference, to major media reviews, and the “content navigation guide”. 
  

I do have a lot of “sidebar” and “opinion” pieces there that predate my starting with Blogger in 2006.  Generally, the functionality of these pieces is replaced by Blogger (and now Wordpress).  Likewise, the Movies, Books, and Drama (and music) reviews were continued on appropriate blogs on Blogger and now Wordpress (the special “Media Reviews” blog).
  
Also, my Wordpress blogs exist mainly for two purposes: to provide more detailed notes for my three DADT books, as new issues come up (replacing the “footnote files” on “doaskdotell”), and to reinforce older media reviews or do special ones related to my own writing projects.  I also document the progress of my screenplay, novel and music projects here.  Sometimes I place additional QA session videos here, too.
  
There is certainly an issue with allowing older sites to stay up when they are not often maintained.  I have thought about removing a lot of old content, but this would take non-productive effort!  What I will do more of is tagging many of the opinion pieces and link references with dates showing when they were created. Over time, many links in older pieces do tend to disappear. 
  
There is also an issue with the quality of comments.  Most of my blogs have automatic spam filtering of comments.  One of them does not, and so occasionally I have to mass mark about 2000 comments as spam.  The quality of comments on blogs is not what it once was, as so much commenting has moved to social media (although established newspapers seem to be able to keep attracting comments, as do more specialized sites). 
  
I’ve noticed that there is a certain immaturity even behind the legitimate comments.  There is a certain tendency to resent “know it all’s” and to looks for easy answers to immediate questions.
  
As to the links, I suppose I could consider installing a "broken link checker", link this one, on older sites, even blogs. You can read the pros there for using them.  I get a lot of emails and tweets from SEO and other website services, and get so wrapped up in "news" and current projects that I don't respond to them often. 
    
I can even imagine that in the future, web hosting companies or service providers could feel some incentive to monitor the quality of visits that websites and blogs, especially run by amateurs, receive from the public.  That could involve metrics like bounce rates, depth, distinct visitors, and new visitors.  They could also become concerned about the quality of links and their management.  But that speaks to a more authoritarian kind of world where speech and broadcast is not as spontaneous as it is today.  Sounds like China.  

Thursday, March 26, 2015

Another lawsuit against a consumer for a "bad" review, against a dog training business in northern Virginia, stirs debate on anti-SLAPP in more states; also, reviews are safer if they stick to "opinions"


There’s another defamation lawsuit (for $65,000) against a customer for a negative review in northern Virginia. This time, the business is Dog Tranquility, in Burke, VA and the consumer is Jennifer Ujimori, as reported in the Washington Post by Justin Jouvenal in the Metro Section, first page on Thursday March 26, 2015, link here.  Jouvenal links to an earlier Post story on December 4, 2012 about another earlier suit in Fairfax against a home remodeling contractor, “In Yelp suit, free speech on Web vs. reputations”. Indeed!
  
The reviews had been posted on Yelp and Angie’s List.  The Yelp review was removed by the company, so far.  The business claims it had tried to work with the consumer. 
  
The consumer says that businesses are playing hardball by forcing consumers to spend money on legal fees to defend possibly frivolous suits.  The businesses say that one bad review can deep-six them, and the owners have to make a living to provide for their families in the real world.  In the US, “truth” I an absolute defense to libel (no so in Britain, according to Kitty Kelly).  Still, it can cost money for a defendant to show “truth” to a jury (by a 51% preponderance).  Some regard the suits as a form of legal bullying as a “real world” tactic. 
  
In the video above, reporter Jouvenal says attorneys tell him that they should stick to “opinions, not facts”, because there is an “Opinion Rule” that says that opinions alone cannot be defamatory. But when reviewers state “facts” they may have to prove the facts in court at their own expense.  Think about this.  When I have a fender-bender, I don’t report the “facts” about an accident online. 
     
In this specific case, the news story reports the business owner saying that, as a small business owner, the business has to “rely on these review sites as a major source of advertising.”  To me, that sort of argument doesn’t sound like it can work;  review sites are a kind of “journalism”; they are not “supposed to be advertising”. Except when they are!.  But, true, some of the material I get from Angie’s strikes me as “advertising”, personally at least. 
  
In another case, Hadeed Carpet Cleaners, the Virginia Supreme Court will decide soon whether Yelp must release the identities of anonymous “critics.” Electronic Frontier Foundation, among others, has been a strong proponent of defending anonymous critical speech on the Web.  (This was reported here Jan. 9, 2014.)
  
The consumer wants to encourage Virginia to pass an “anti-SLAPP” law, similar to what exists in DC, Maryland, California, and over half of states.  SLAPP stands for “Strategic Lawsuit Against Public Participation”.  Such a law allows a judge to dismiss a frivolous suits on First Amendment grounds.

There are other accounts already on the case.  The American Bar Association has a summary (with some of the reported fact pattern) here. The "Inquisitr" has a valuable article on the underlying debate and how it could affect the "consumer review site" industry here.  
  
I do belong to Angie’s List and get its magazine by mail (their article on water heaters and new EPA standards sounded important, for example), and I get contacted by email to write reviews all the time!  I don’t do reviews on these sites. News media has reported on Angie as aggressively promoting her business model.  Wikipedia characterizes it as “subscription supported” with “crowd-sourced” review content.
  
 I do have a few small disputes in the past, a couple outstanding, but not of an existential nature.  One of these concerned an unqualified assumption sale of real estate in Texas in the early 90s. and another involved my tangential involvement with a dubious discrimination claim by another employee back in the 1990s.  Had that case gone to trial, my first book might have been delayed, as well as my 1997 relocation!  Generally, I don’t settle individual disagreements online, as, yes, that’s dangerous.  On the other hand, “journalistic integrity” would seem to demand full disclosure eventually.  I may eventually give more details on some of these on my “Do Ask Do Tell Notes” Wordpress blog.
Art work: from St. Mary's City. MD (my trip).


Update: March 27, 2015

The NBC Today show covered this incident briefly, and conducts a survey that reports that 87% of respondents report that review sites affect their purchasing decisions.  I replied "No", although I sometimes look at hotel reviews (does the WiFi work?) and movie and theater reviews.  Frivolously, an actor said he wondered if Hollywood would sue critics.
   
The UK Daily Mail has a story by Evan Bleier, and the comments are interesting.  The story also has screenshot illustrations of the review process.  One comment suggested the defendant use "GoFundMe".  That strikes me as a bit tacky, but the defendant probably does get a lot of "free publicity", which maybe she didn't want.  The business owner is likely to get resentment from the public for merely filing the suit, which may hurt business more than the review itself.




Update: March 29

Rick Callahan, on p. A3 of the Sunday Washington Post, in discussing protests against Indiana's new "religious freedom" law. notes that Angie's List has considered adding (or moving) 1000 jobs in Indiana (link here).  Wikipedia says it has over 1600 employees now. I had no idea that a review site company could need so many employees and was this big! In fact the Indianapolis Star reports more detail about possible cancellation by Angie's here.  The company had planned to rehab a run-down area of the city (in which I worked for the summer in 1970). 

Wednesday, March 25, 2015

Fair Use needs to apply to documentary film; clumsy renewal process at Copyright Office in progress now


“Fair Use” has always protected brief quotes of the work of others in essays and books, for the purposes of criticism.  But that does seem to apply cleanly to documentary filmmaking and the video essay.
  
There are strict industry practices to prevent DVD ripping, which you see on every DVD you buy or rent from Netflix.  These were to prevent piracy and undermine the whole industry.  The obnoxious anti-piracy warnings, usually in many languages and alphabets, warn of fines and incarceration, all implemented legally by the Digital Millennium Copyright Act (DMCA) of 1998. There seems to be a small exemption that applies to documentary film which the International Documentary Association has requested be expanded in 2015.
  
  
The IDA has a FAQ page for filmmakers here. The IDA submitted an exemption extension request to the United States Copyright Office in early February 2015.
  
Sonny Bunch has an article in his “Act Four” column of the Washington Post on March 24, here.  
  
I wonder what the George Washington University Documentary Center, which has advertised at the nearby West End Cinema (sadly closing) would say about this.  



Tuesday, March 24, 2015

Current international tensions and military operations could pose new issues for "user generated content", even for civilian speakers


For bloggers, it’s generally safe to hyperlink to things they want.  In practice, this has been true for video embeds, too.  It does seem that in a few rare cases, people have been sued for defamation based on content that they have linked to.  The risk is reduced when links are to normally “reputable” sources.
  
Remember, the 1996 Communications Decency Act had aimed to make it illegal not only to present “indecent” content but even to link to it, which could set up a “chain letter problem”.  That provision was struck down by the Supreme Court in 1997, but ironically, one of the subsections of the Act, which is properly called the Telecommunications Act, was Section 230, which protects service providers (and forum moderators, for example) from downstream tort liability (like defamation, privacy, injury) for content provided by others.  In recent years, especially in the age of cyberbullying and revenge porn, some see this as controversial.  But it also means that bloggers wouldn’t normally be responsible for torts committed in comments, and moderating comments (for spam) does not compromise the protection.
  
It would seem that posting a link to a site providing encouragement for illegal behavior (especially child pornography) might be illegal if done intentionally, as part of a “conspiracy” to instigate such behavior.  It isn’t too much of a stretch to wonder how the law could apply in matters related to terrorism, such as instructions for munitions, or most recently, links to a “hit list”.  Of course, such a concern could have existed pre-9/11, with issues like organized crime (and incidents like these happen on soap operas today).
  
It’s also logical to wonder if this could apply to more recent news stories related to US military activity overseas.  Arguably, this concern moves beyond crime to asymmetric warfare, of an unprecedented nature, with the potential to disrupt the user-generated-content world in blogs and social media (without gatekeepers) that we have come to take for granted. 
  
The concern regarding war is not totally unprecedented.  In past generations, established news generations had to “worry” about this during the Vietnam War (“The Pentagon Papers”) and even WWII (“loose lips can sink ships”).  The career of Alan Turning becomes incredibly ironic in retrospect.  It was common for the radical Left, especially in the late 60s to early 70s period, to regard military members who flew the “Nixon” raids over the Vietnam theater as personally culpable, and I even recall going to meetings where these things were said.   

Saturday, March 21, 2015

"Fantasy" case for New York City police officer raises serious "implicit content" questions; when is the "purpose" of speech actual conspiracy?


Electronic Frontier Foundation, in an op-ed by Hanni Fakhoury and Jamie Williams, has discussed a case in New York City with some parallels to the issue of my own content when I was working in 2005 as a substitute teacher, explained in detail on this blog July 27, 2007 (with a link to Wordpress where there more computer forensic evidence is shown in detail).   The link for the story, with important sublinks for amicus briefs, is here. EFF calls this a "thoughtcrime" (or is it "pre-crime", like in the film "Minority Report"?) 
  
The case at hand is United States v. Gilberto Valle.  The defendant had been a New York City police officer and was convicted of violating the Computer Fraud and Abuse for using a NYPD database for non-business purposes.  That may be justifiable - certainly termination would make sense, although EFF has also argued that violating an employer’s computer use policy should not itself be a prosecutable crime.  But he was also prosecuted for conspiracy to kidnap for statement he had made in chat rooms or on websites devoted to fetishism, especially cannibalism. 
  
Speech that actually conspires to commit a crime is, of course, not covered by First Amendment protection.  The problem here seems to be whether that was the “intent” or “purpose” of the defendant’s speech, and particularly whether other visitors would likely perceive criminal conspiracy and participate.
  
A jury convicted the defendant of conspiracy, and then the trial court decided to vacate the verdict, but the government appealed to the Second Circuit. 
    
In the video below, note the emotion (and sense of being offended) of the speakers, and the unwillingness to consider whether this was just “fantasy”.
    
  
There seem to be two elements here.  One is broad context; statements need to be compared to the totality of a speaker’s content, at least insofar as it is likely to be found. The other is a narrower notion of contest, as to whether a visitor knows that this is fantasy or fiction.
Eugene Volokh  at UCLA (“The Volokh Conspiracy” ) and the Scott and Cyab Banister First Amendment Clinic at UCLA contributed.   
  
In my situation, there was another element: whether fiction could be interpreted as predictive of real life, particularly if a character were recognizable.  The protagonist in the screenplay treatment (“The Sub”) arguably closely resembled me.  Since both resources that EFF used come from California, those resources are probably familiar with Bindrim v. Miller (1979).  However, that case would not be precendential in New York (or Virginia in my case) or at the federal level, although arguments made in the case could be useful.  In the screenplay, the male substitute teacher allows himself to be “seduced” (so to speak) by an unusually precocious but legally underage male high school student.  I’ve discussed it here as an “implicit content” problem:  would a (minor) visitor interpret my “purpose” (a word in Virginia computer law) as enticing him to try to duplicate the plot of the screenplay?  Of course, this idea has been done in commercial film (Lionsgate/Lifetime’s “Student Seduction” in 2003, Movies blog May 4, 2010) and incidents like this (usually heterosexual) have occurred all over the country since then, resulting in teacher firings and sometimes prosecutions.  But then there is a “conflict of interest” problem as to whether an employee (like a public employee) could be prohibited from speaking about an issue like this in the open (without a gatekeeper) because of the “implicit content” problem (which, by the way, got mentioned in the COPA trial in 2006, the day I was there). Theoretically, my legal position might be sounded if the piece had been paid for by someone else (had been written for compensation), which is ironic.
     
In my case, I was “banned” from the school, but allowed to continue subbing everywhere else, after the school district reviewed some of my other material and determined the “context” of the speech (the fact that I had authored books on gays in the military, etc).  But, Volokh argues that a reader should know even from visiting a single web page, in many cases, that the material is fiction or fantasy (but then, at least in California, does Bindrim matter?)
   
I eventually left subbing (in 2007) and now have made “The Sub” (a short) a backstory (at a “fiction” level) of a feature screenplay now called “Do Ask, Do Tell: Conscriptied”  It is taking a long time to develop it. 
     
There have been serious comspiracy cases in pre-Internet days.  In 1988, some people were arrested in Richmond VA for trying to make a "snuff" film. 



Friday, March 20, 2015

Should the "outside world" matter to creative people?


Should “creative” people follow the outside world carefully?
  
I say yes, even though I sometimes get feedback even from “peers” who say they don’t need to get bad news or scare talk from me on social media.
  
It is true that I am effective in the world only because there is a “civilization” that is stable enough for me to operate and find my niche to fit in.  When I hear about the outside terror threats, or the talk about years without electricity after a massive solar storm, yes, I get where the “doomsday prepper” crowd comes from, and the whole survivalism mentality.
  
And I want to reinforce that I have nothing to offer such a world.  I hope that there is no subsequent final act for me after an “Event” like that.
  
Of course, that begs a question, do I care about the people who read or use my media?  
  
At one level I do, of course. But I seem unwilling to allow intimacy and meaning in relationships where normally it might be expected.  You could say I am not “right-sized”. 
  
For example, in the middle 1970s, I made a lot of the Arab oil embargo, which at the time had the potential to keep me from “getting around” and finding the kind of person I wanted.  (There were those who equated personal mobility then with “power”.)  But the implication is that I am just not responsive enough to people, or else I could find (heterosexual) satisfaction in normal suburban family life and “stay home more”.
  
In the 2000’s, the issue transport to the area of the permissiveness of the Internet world, and the whole downstream liability question I often discuss here.  Translate that to, “open access”.  Yet, this impacts more family-centric people who take more personal risks than I do in having and raising children.  And, yes, they have to make a living, so the breakdown of old ideas of marketing and the “it’s free” concept does tear at them.
  
Of course, this whole idea of personal “right-sizing” invokes the whole question of “belonging” – to a family (even if you didn’t create your own), a nationality, or particularly religious fellowship (or, “the Fellowship of The Ring”).  Then, you have to accept the idea that your group may have to prove itself right, and that invites war (even over religion).  How would I like to be in the moral position of a teen raised on a  West Bank kibbutz? It's easy to be smug about the idea of not having to be jealous, and not having to take up arms over something like religion, and not having to walk picket lines.  There's no honor in victimhood. 
  
In those awful days at NIH in 1962, I used the phrase "on the outside" a lot. I was the only inpatient on 3-W who knew about the Cuban Missile Crisis. 

Wednesday, March 18, 2015

Advances in search engine technology, developed for science fairs by Canadian high school student


There is some new technology for searching shorter posts, especially in social media sites, by looking at statistical correlations of abbreviations and character strings that are common in tweets, texts and the like. It is called “Apodora” and was designed by a Canadian high school student Nicolas Schiefer and entered into science fairs.  There is a story my Emily Jackson in “The Globe and Mail” here


Jack Andraka mentions it on p. 152 of his new book “Breakthrough”, reviewed today on the Books blog.
  
Of course, short text content is much more likely to be whitelisted or to have privacy controls to keep them away from search engines.  

Tuesday, March 17, 2015

Blogger now offers expedited connection to unique domain names; but I need to think through a couple of issues first before signing up


Starting late Monday, I’ve noticed that when I sign on through Blogger to any one of the sixteen blogs on it, for the first time for that blog, I get a notice “Find a domain name for your blog and connect it instantly”.  I tried the link for one blog, and was invited to purchase the domain for $20.  I didn’t do it right then, and here is where I stand on it. 
  
I do think it is a good idea to connect blogs to independent A-record domain names (they will still end with “.com” and I wonder if a different tld would be more descriptive).  I already do this with Wordpress.
  
In the past, Blogger has always said you have to purchase a domain name first, from one of several companies (especially GoDaddy).  I will need to find out exactly how this works, with what company, now long the renewal term is, and the like  But it sounds like a good thing that the “WHOIS” connection is supposed to work, as Alan Turing says in a recent film, “instantly”.
  
The best reference I can find right now for this new capability is here in the Blogger Support forums.
  
There is another issue.  My main tech news blog is called “BillBoushka” (as one word, on my Blogger Profile)   I have a small domain (on Verio) named “billboushka.com” already, on a Unix platform.  It was set up in 2005 and had been originally intended to be a simpler map of the content on my “doaskdotell.com” which was set up to support my books.  More recently, in late 2013, I set up “doaskdotellnotes.com” on Wordpress with BlueHost, to provide more detailed “footnote” support for my third “Do Ask Do Tell” book that came out from XLibris in early 2014.  I also set up a “Bill’s Media Reviews” on Wordpress, to provide supporting materials for my own screenplay and documentary film proposals, for networking with others (and also information about my novel). On that blog, I discuss some films and books and television series that may have been covered on Blogger or earlier on the “doaskdotell” site (before I started using Blogger heavily for media reviews in 2007). 
   
There is also a site “johnwboushka.com” on Network Solutions, set up as a resume site related to my old career.  That succeeded a java starter site for that name when the service provider failed in 2006, an effort that had been intended to support an “opposing viewpoints” database.  Some of that functionality is now on MySQL on “BillBoushka.com” but I haven’t worked on it recently. 
  

That raises another question:  Why do I leave so much “old stuff” up?  I do work solo, and it is difficult to get to everything all the time.  In more recent times, most of my time has been spent with Blogger, Wordpress, and the music, novel and screenplay projects.  I see I covered some of this on Nov. 2, 2014 and Feb. 8, 2015.  Much of my behavior is “practical”.  It is difficult to say with certainty which platform will be the most reliable for the indefinite future, so I have an incentive to keep “old bridges” open.  Yes, geeks, there is a metaphor in the Seven Bridges of Konigsberg problem in topology (here ). 
  

So, with all this going on, I do need to process which blogs to name at the “A level”.  I would expect me to get this done within 30 days, because other work goes on, and I can’t stop “in the middle”.  I did sign up to follow Blogger on Google+, and see what is happening with other bloggers from social  media and help forum posts first. The most urgent is probably the Movie Reviews Blog (the largest).  

It's important to note that, with Wordpress, hosting companies often provide a copy of Wordpress in your space, and maintain the latest versions for you (or give you a link to refresh with routine software upgrades).  There is a difference, in terms of how TOS and customer support works, between this kind of full hosting (which is desirable), and merely equating a domain name on someone else's free space.  I'll have to check and see exactly how the new Blogger domain names work in this regard.  Another thing I would like to see all blogging platforms do is work cleanly with Microsoft Word (get rid of the unnecessary XSL), when the post is written off-line first.  Wordpress actually retrograded in this regard.
        
The blog named after me (by nickname) has to be thought through first because I already took my own name.  How is that for a trademark problem!



Update: Mach 27

Nitecruzr on Blogger offers this explanation of redirection, not his detailed sublink and detailed examples.  


Monday, March 16, 2015

Facebook tries to fine-tune its TOS rules; when should blogger-journalists report violations or contact police? When does "see something, say something" kick in?


The New York Times, in a Business Section article Monday March 16, 2015 by Vindu Goel, with a rather beefy picture of Mark Zuckerberg, p. B6, reports “Facebook clarifies rules on what it bans and why”, link here 
    
Facebook has in fact posted its new Community Standards page here.  
     
Apparently (contrary to my perception), Facebook has been stricter than some portions of Google (Blogger) on porn, which recently generated controversy.  It also bans certain violent or hate-filled content or that sponsored by terrorist groups.  It does not seem to have as much trouble as Twitter in the latter regard. 

The company is apparently banning revenge porn for the first time.

Facebook has also started to soften the rules on using real names, as it now allows drag queens to use stage names (which had always been the practice on Myspace). 

Facebook still enforces its standards ex post facto;  it depends on users to report violations.  This is something I have never done.

After a particularly baffling crime in suburban Maryland in 2008, however, I found “threats” regarding the incident on MySpace, and also on two Blogger postings that I believe Blogger would normally have removed according to TOS policies at the time.  I did not act until 2013, when I mentioned the case to a northern Virginia police department in a case that turned out to be unrelated.  So, in practice, I don’t usually complain or “tattle” unless something I find rises to the need to contact law enforcement, which I think has happened about five times since 2001. 

There is a really good question:  what should an individual “blogger journalist” (without “privilege” to “protect sources”) do when finding information that law enforcement is likely to have overlooked because of some unusual aspect about the way content is perceived or interpreted? 

Sunday, March 15, 2015

Musicians generally disagree with the "Blurred Lines" verdict, for good reason; compare to classical music examples



So did Robin Thicke really “plagiarize” Marvin Gaye?  The YouTube clip below is one of the closest comparisons I can find.


Generally, other musicians (including pop) are saying, no, the two songs are different, and the “sampling” does not represent infringement.

I hear an underlying common rhythm, with very similar instrumentation, but different melodies.  That would correspond to a “ground bass” of a passacaglia or chaconne in classical music. 

The copyright applies to the score itself (separately to words and music), and to a performance. But just as with facts in non-fiction literature, actual chords and rhythms cannot be copyrighted.
Imagine if the underlying technique of Phillip Glass’s music was “copyrighted”.  It’s not so different from the effective use of repetition with original rhythms in the scherzos or some symphonies, from Beethoven to Bruckner. 
  
Imagine, furthermore, that the opening theme of the Mahler Third is viewed as “stolen” from the heroic theme of the Finale of the Brahms First, which itself comes from Beethoven’s Ninth.
Furthermore, the opening of Bruckner’s Third Symphony is based on the opening of the Beethoven Ninth. And the reconstructed Finale versions (now gaining authenticity) of the Bruckner Ninth usually take the Bruckner Third, Seventh, and Beethoven Ninth opening and put them together for one “cathedral” effect.  How would artists offering “completions” of various works (or “recompositions”) protect themselves from litigation?
  
Vox has a detailed analysis of the jury ruling by Kelsey McKinney here. 
  
“Who sampled whom” analyzes Thicke against DMV, Detox, Vicky Vox and Belli. Belli, here

The New York Times has an article by litigating attorney Richard S. Busch, by Beb Sisario, link here. The attorney says that musicians don't like to sue record companies because they fear blackballing.

Update: March 19

Ars Technica reports (Megan Guess) that the Gaye family has asked the judge to enjoin sales or distribution of the infringing "Blurred Lines" until royalty payments are made, link here, Also, the original work was created before a change in copyright law in 1977.  
  

Update: March 21

Here is a New York Times review (by Anthony Tommasini) of a concert by David Kaplan on adaptations from Schumann, comparing the classical world to popular in the discussion, as to how copyright is viewed.  I'll try to find more details on this later, as I was not in NYC to attend this.  


Saturday, March 14, 2015

Open Code project now all on third party companies


Even big companies that can do everything sometimes withdraw and allow third parties to take the lead.  Google has announced it is withdrawing from Open Code for most purposes, suddenly announcing there would be no new projects;  then making the project read-only in August and closing in March of 2016. Google says that GitHub and Bitbucket now provide better platforms and encourages remaining users to migrate with tools.  It says most legitimate open code users have done this already, leaving them with abusers.  Google’s announcement is here. There has been some anger on Twitter (particularly from people attending  SXSW in Austin right now), but the reactions don’t seem well justified.
   
Google has pulled the plug on other services, like iGoogle in November 2013, but with considerable notice. In more recent times, Google seems to making notices more abruptly, like with the Blogger porn issue (Feb. 26) which it largely deferred. 
   
Even very large companies find it is better not to tackle everything,  Apple extends its iMovie with FinalCutPro, which is a staple in the film industry.  But it does not do this with iTunes, for example;  it is perfectly content to let Avid keep hold of making music composition software work well in both Mac and PC environments. 
   
AOL had a precursor of blogging software, called Hometown AOL, which it had opened in 1996, and I was an early user.  AOL withdrew from offering it to accounts in 2007, allowing users to export to Blogger.
   
I often wonder how the business models for these companies really can work.  I don’t do a lot of stull to generate income for anyone, and I am minimally receptive to ads (although I have my favorites, like a Walt Disney World water ride commercial, or a particular Audi short film).  Could “free service” platforms like Blogger suddenly pull the plug, or be much more restrictive on the quality of visits (as from analytics)?  I wonder.  I still think it would be a good idea for Google to offer hosting contracts (beyond Picasa photos), or be much more public about third-party companies that it works with on hosting contracts, in order to provide more structured support for content developers.  This seems clear enough with Wordpress and some companies that specialize in hosting it, like BlueHost.
     
Open Code and Open Source should is not the same as Open Access.  I’m seeing more about this latter problem in Jack Andraka’s book “Breakthrough” which I will review soon.
    
By the way. Julia Belluz has a piece on peer review and science journals to pass along on Vox, here

Friday, March 13, 2015

Was the racist rant, at OU, protected by the First Amendment when posted? Was the expulsion of the students constitutional?



Did the University of Oklahoma, though the actions of president David Boren, violated the first amendment rights of two students by expelling them?  It’s noteworthy that the expulsion letters provide for a mechanism for repeal
  
Matt Pearce writes, “probably” in the Los Angeles Times, here.  There are similar pieces in Time, Kfor, and the Washington Post (column by Eugene Volokh here  ). 

My take is, maybe. 

First, the speech was not protected if it made a direct threat, or was part of a conspiracy to commit and illegal act.  The reference to hanging or lynching might be perceived as crossing that line.  There is a documentary film, “American Lynching”, by the late Gode Davis, which is not completed.  If it were available, I wonder if it would affect the debate. I have a Wordpress posting on the progress of this film, Feb. 6, 2014 here.  Of course, however, one could also say that if the students’ chant actually conveyed a threat online, they could be prosecuted (or the poster could). 

Second, is the issue of conflating speech with “conduct”.  Where did we see this done before?  We saw it in the early days of the debate over gays in the military, after President Clinton took office in 1993, leading to the “Don’t Ask, Don’t Tell” policy.  In my first book (“Do Ask Do Tell I”) I had even supported the idea that speech in closed spaces could need more regulation (the whole “White House Letter” from 1993). 

Even though OU is a public university it has to deal with the fact that it has a somewhat “closed” environment where it needs to restrain some conduct in order to protect a learning environment.   O its face, that sounds reasonable, up to a point.

There is also a question that the offense came from private postings on private social media accounts (or it could have happened with shared or sole web hosting).  Yet, the whole point of many postings is to go public, so the speaker has to take some responsibility for the likelihood that the contents will be known and active in that space (the campus).  This has led to an area I have called “conflict of interest” in other discussions. For example, persons who have authority over others in the workplace or classroom have to be accountable for the idea that their public speech could create a hostile environment.  But that might not apply to undergraduate college students.


In at least two major episodes of my life, there were significant consequences for my speech.  In 1961, I was “expelled” from William and Mary after telling the Dean of Men, in a closed meeting, that I viewed myself as a “latent homosexual”.  That should have been protected speech, by modern standards. 


In 2005, I was removed from a substitute teaching assignment (with the confluence of a lot of coincidences and complications) after a fictitious screenplay I had posted, about a sub, resembling me, allowing himself to be “seduced” by a student, came to the attention of a school.  (It’s covered here July 27, 2007).   Since this was a public school system, was that protected speech?  If it could be construed to have the “purpose” of goading students into actually trying it (since it didn’t have another apparent commercial purpose), that could be an issue, and a dangerous one, but that’s a stretch.  Was it “offensive” to teachers?  Possibly in that it suggested also that any teacher could get set up (like in the 2003 Lifetime film “Student Seduction”), but maybe that is something that should be said.  Did I have the proper “standing” to post this, or did it create some kind of conflict of interest?  I wasn’t in a position to grade students, so that gets into the “implicit content” problem.

As far as closing the fraternity, the University's case seems much stronger.  It is under some obligations under a Civil Rights Act not to provide a discriminatory environment.  But the idea that individual undergraduate students played a leadership role in creating a hostile environment legally seems like a stretch, when it comes to expulsion.  But the University may be right in acting quickly and then offering a willingness to answer questions later. 
   
So there is a lot going on here, legally speaking.  I wonder what the Legal Guys will say on CNN Saturday. But any students publicly involved, expelled or not, will have to live with their "online reputations" for a long time.  And I helped contribute to that circumstance years ago. 


Tuesday, March 10, 2015

When do "you" as a speaker really care about "your" readers?


On March 2, I reviewed (on my Drama blog) a performance of a particular opera by Richard Strauss, “Guntram”, a middle-of-the-road effort where Strauss wrote both the libretto and music.  It is significant because Strauss seems to be trying to make a grand statement about his own universe of morality.  He deals with the limits of self-actualization, vis the group one belongs to, and the need (sometimes) for real sacrifice.  Sometimes “it costs you something.”  (No, the title is not “Gotham”.)
  
Recently, I purchased through Amazon an “instance” of “The Libertarian Mind” (2015) by David Boaz.  The book is a major revision of his earlier “Libertarianism: A Primer” (1997) and carries the curious subtitle “A Manifesto for Freedom”.  I’m going to review it in detail on the Books blog soon, and talk about the “literature” of libertarian books soon (as opposed to “conservative” books) on a Wordpress blog.  But, even starting to look at it now, it provides another reference point for today’s little sermon.
  
Let’s turn focus on a New York Times article Sunday by Michael Crawford, “The Cost of Paying Attention”, link here. Note that Crawford has also written recently about the virtue of working with your hands, something my own father would have extolled.  Here Crawford writes about the need for quiet and silence, and rest of the mind from the bombardment of messages from the outside world.  Crawford’s concerns are not so much with the personal, as with the plethora of commercials and trademark banners intruding everywhere, even in the TSA security lines at the airport.
  
Every time I write a tweet, I have to ponder the wisdom of sending it, given the followers I have, and similarly as it ports to Facebook.  With blog postings, followers or friends aren’t so much an issue, as broadcast is the intention, but the permissiveness of the self-publishing environment (most recently challenged two weeks ago over the porn issue) renews or instantiates another question.  The "culture" of social media does sometimes prod acting smart or clever, "on your own".  Maybe this isn't always sending the right message. Do I care about the people in my audience, as people?
  
Of course, I “care” about many of the followers and friends;  among them are people I can definitely imagine working with in the future, especially on film or other media projects.  And I “care” about some persons in the real world whom I actually see but who prefer to keep a lower profile online for now.  I have my own mental “list”.  But what about “everyone else”, whom “I” am piercing with jabs about critical thinking, trying to underline the flaws in their partisan behavior?  Do I “care” about the people who may hear my prattle or chatter and become indignant about their burdens which I get out of?
  
Ever since becoming published in the late 1990s, and especially after 9/11 and then “retirement”, I find myself challenged by approaches from door knockers (literally and not) from those who want me to renounce “objectivity” and go pimp their causes, and even take care of their kids and people.  I’m approached by the same people who wouldn’t have wanted me around in the past.  There’s a turnabount.  Now, I see my own aloofness, and indifference.  Yes, I don’t like to be barged in on, don’t like to be approached randomly in public, or take telemarketing calls now – even as I once worked an “interim” job doing just that “for a good cause”. 
  
No, it’s hard to rejoin (or just join) a world for which I have been an alien observer, recording karma and taking notes (although not so much taking names).  It’s hard to be a “helping hand” for some other new parent when I’ve never engaged in the act that could make me one myself.  Eldercare, as I’ve documented, played a part in all of this table rotation. My life offered a parade of little events, each of which might build a Sunday School lesson or even children's story, but it's not clear what they all add up to, beyond the general area of karma, and transcending self-hood. 
    
Let me come back to David Boaz’s arguments for libertarianism.  I’ve posed them myself – like absolute responsibility for the self in the Introduction of my 1997 book.  I’ve pondered (and enforced) self-ownership – personal autonomy or individual sovereignty.  He explains it very simply. 
   
He also reduces morality to harmlessness. You’re free to do what you want, as long as you don’t interfere with anyone else’s ability to do the same. Of course, you have to earn your keep.  So, you’ve got to provide services or goods (either in a conventional workplace or on your own) that real people actually need (or at least want, and there can be a difference) and will pay for in a free market.  That part gets dicey;  I’ve often said that employment recessions are part of a “free market cultural revolution” that does indeed reinforce “paying your dues” sometimes.
  
There are two or three areas where other moral sense (religious or not) creates tension with hyper-individualism.  One of these areas is that we don’t start in the same place in line in life.  We wind up depending on the sacrifice of others in ways we don’t always see. 
  
A second area has to do with the value we place on the lives of others just because they are human.  That can lead to some paradoxes, if you think about it.  If your right to refuse connection to another person “in need” is absolute, that setup can drag a whole culture to a new kind of totalitarianism, because it cannot afford to deal with “second handers” (to borrow from Ayn Rand).  This can lead to new forms of extremism (and not the good kind that Barry Goldwater – “shooting straight” – liked).
   
Along with this is the whole admittedly ambiguous nature of one’s moral obligations to future generations, apart from the obvious responsibility for the specific children one has sired (or agreed to raise).  This goes beyond the binary aspect of a decision to have or not have children.  But sustainability, as a moral matter, has its own limits.  The Neanderthals sustained themselves for 100,000 years, but not forever, because they didn’t innovate enough.

Libertarianism discourages “public” solutions to problems that come with essential inequality, where fortune affects or precedes performance. Is that just left to “family”? That’s another area of tension – taking care of “your own” compared to reaching out into the community and beyond (as churches and Tolkien call “fellowship”).  Boaz offers some interesting perspectives on how to deal with poverty and inequality, however.  He mentions the idea of fraternal communities as sometimes more effective than open markets.  For example, it used to be common for specific groups of people to form their own insurance companies and banks (long before modern corporate merging).  Yet, “fraternal companies” as employers can set up their own possibilities for “conflict of interest” as I have detailed before. 
  
There is a challenging post on a site called “Everyday Feminism” by Sara Whitestone about how to respond to panhandlers, link here. I think that it generalizes or extends (beyond compassion) to volunteerism and helping others in a lot of other areas.  I wouldn’t be comfortable with living up to some of this now.(I also think she extends the idea of "privilege" a bit.)  Like, I’ll acknowledge someone playing music or offering artwork, sometimes, because that starts a legitimate conversation, and I’ll be comfortable with a donation.  (There’s one keyboard musician near the Smithsonian Metro exit particularly good at this, and, yes, you can hear Mozart in the New York City subway.)  I think she’s talking about something more fundamental than this.  Again, I have an issue with gratuitous conversations (“How are you today?”) or with being recruited to anything (and nobody pimped the Ice Bucket on me).  And I don’t like to approach others for “money” for “other people’s causes” even if I get the idea of need. 
  
Yet, I have to agree with another libertarian author, Charles Murray (“Coming Apart”) that our social connectedness, in a real world level, is now very unpredictable and “quantum” in nature. We "belong" less than we used to. 

So, returning to Strauss’s opera:  how a “divergent” like me “should” behave becomes a moral question.  It’s not much about making laws.  But is about matter like responding to coercion or aggression, when people have become indignant or declared themselves as enemies.  It’s also about what really works in a practical way with people you really want to work with.  But how “you” react to those who knock is a moral matter, too.  

One other thing about "getting involved".  The French understand it better than the English and Americans.  The French language has personal and impersonal forms of "you" (that is "tu" and "vous").  In English, it's hard to make the distinction with context alone.  

Above, Ian Breckenridge-Jackson: "Cancun Can Wait" (Ted Talk). The video is actually called "Getting More Than We Give" and considers our debt for "volunteer tourism" -- rather turning volunteerism into being like internship or a short-term job, a graduation requirement, a dissertation experiment.  It's a lot more personal than that.