Bill Boushka

Sunday tidbits: More on accidental photo tagging, "competing with free", and the significance of "EpicWin"

2012-01-29T13:05:00.000-08:00

I have some odds and ends today, to start your Sunday afternoon, your "day of rest".

First, I’ve written in the past that I never tag other people’s photos. I have noticed, however, that on a few occasions Google (and perhaps other search engines) have indexed images from my blogs as such, to appear when a person’s name or a place is entered. Generally, they are higher definition (1 meg or more) images with good lighting and technical focus (not hard today with inexpensive digital cameras, maybe questionable on some cell phones). I do, when permissible, photograph at live performance events. For films, this isn’t usually allowed (for copyright reasons, except in post-film panel discussions), but I often add images that I took myself of the area in which the film’s story takes place. Sometimes I add and attribute images from Wikipedia (most can be used legally this way). There is at least a remote chance that an image might not actually match the individual or place searched for, although I haven’t actually encountered this error yet.

Second, it occurs to me that I’ve never quoted Hollywood’s mantra, “You can’t compete with free”, a battle cry (of self-prostration) screaming for the downstream-liability strengthening of SOPA or Protect-IP. Sure, but there is double entendre. True, a film or music company can’t compete with free copies of their work that come close to the original in technical quality, after illegal uploading and inviting illegal downloading (paid for by parasitic “sponsors”). But I fear something else. Both Hollywood and the news business may fear they can’t compete with very small ununionized or low-cost companies or individuals (without employees) who can leverage their productivity with technology to an incredible level. Mark Cuban once admitted that to me in a reply to an email posted on his blog.

Third, there is an article in the February 2012 Popular Science by NYC journalist Matthew Shaer, “The Game of Life” (p. 54 in print), link that poses the question “Will keeping score of absolutely everything make you a better person?”, and then describes a week-long life experiment with an app called "Epic Win" (iTunes "legal" sales link is here ) where everything you do gives you points. It’s like getting a grade on a week-long laboratory exam in organic chemistry (remember that course, with the preps?) What’s interesting or ironic is that the writer, who looks very strong and virile in the mag photos (like late 20s -- [and, yes, I actually paid for a printed magazine copy in a 7-11-- I do that sometimes]), talks about his visit to North Carolina to visit his fiancé – when getting married and raising a family is about everything else in life besides “getting a grade” (even to prepare for "Judgment Day") . I was just pondering that last night when I wrote my posting about my previous stabs at writing a publishable novel – which is hard “ For the First Time” (The Script – here) . You can live in your own world, with a lot of fantasy, and your own definitions of “measure” – and make it sound compelling. The individual contest really can make “family” sound like an afterthought. But that’s not what most people really experience.

I also have to say, the author of the article sounds really wired in to modern gadgets. I came from an earlier generation. I never needed everything online or monitored by technology.

There is an "EpicWin" site, that I don’t know if it’s the same thing. “Everything counts”. I’ve heard bosses say that at work. Teachers and professors say it to students. Milah and Korben have a YouTube video based on it as follows:

One other thing I want to reiterate about Popular Science. Right before 9/11 (in early September 2001) it ran a curious story about the possibly existential threat that could be posed by small EMP devices. The article has disappeared from the Web. Maybe Shaer will want to track this down and write another story on it.

I get ready to edit my fiction and get it out the door

2012-01-28T20:30:00.000-08:00

In the next few days, I’ll be a lot more specific about how I am going to polish and present some of my project material, but I thought that tonight I would comment on all the fiction manuscripts I have attempted. Fiction is harder than autobiographical memoir (where your life, with all its ironies, is the plot) or policy essays.

My first “attempt” was a pseudo-autobiographical sci-fi extension called “The Proles”. I start with my life in graduate school and take it through the moral morass of the Vietnam era draft, during which I come into relations with members of a cabal that call themselves “The Proles” who want civilization to start over. One of them sends me on a treasure hunt, which places me into a time machine, to emerge just before nuclear war (sort of a Cuban Missile Crisis II) erupts. In the second half, I learn “real life” with a female companion, Tovina, as we roam a wasteland, before we are finally evacuated from the planet ourselves. I worked on this manuscript by hand while in the Army and then typed it by hand and actually “submitted” it in 1972.

Depending on my counting scheme, I have about a baker’s dozen other attempts that I have mounted over the years. Most of them follow some variation of this plot: “I”, while working in the conventional I.T. world for the time, meet a young male “role model” with extraordinary talent and charisma. He disappears or goes away to some kind of ashram. I lose the job, and go to the ashram (sometimes with his invitation, sometimes with my own gumshoeing), and have a critical encounter with the “hero”. In the mean time, the outside world falls under attack (from whom varies with the circumstances and time) and the world turns over. The hero gets married, and I have to learn “real life” and adjust to a world that is starting over (usually in a sustainable, communal environment), sometimes with a female partner.

In a 1981 novel, I first get involved with the “civilian reservist” program that was sometimes reported in the newspapers in the 1980s. I then tried breaking the 1981 book up into seven “stories” that could conceivably be published separately, and one of these (“Expedition”) dealt with strip-mining. That actually was submitted in the early 80s and was nearly accepted. I used some of the text in the opening of Chapter 3 of the 1997 “Do Ask Do Tell”.

In 1988, I submitted (to Scott Meredith) a “version” called “Tribunal and Rapture”. The name of the hero character, Craig Nickerstahn, had come to me in a dream. The relationship with “Craig” is developed in more detail and there are more stages than in some of the other manuscripts. It is brought to quite a graphic climax, just as the outside world closes in.

In the 1980s versions, it’s imagined that communists could mount asymmetric attacks and cause society to implode, in a manner that would be eventually be feared from Al Qaeda. Some of the details resemble the fears that would be promulgated after 9/11 (radiation dispersion devices). These grim possibilities had been well known in the 1980s, even if rarely discussed in public.

In the late 1990s and continuing after 9/11, I imagined more expanded scenarios told from the viewpoints of characters other than myself. I did develop one document (“Rain on the Snow”) where, again, I travel to west Texas to attend a “defense reservist” academy and this time the “Craig” character turns out to be a “man who fell to Earth”. In a bizarre sequence, I am involved with his apparent death and sent to prison, but escape at the novel’s climax when the “angels” routine.

Then there is another novel told from the viewpoint of a retired FBI agent who gets interested in “remote viewing” and learns (from an estranged wife who is a military surgeon) of a bizarre epidemic which would cull out much of the population while allowing some people to become immortal. “I” appear as a character through the agent’s son, who had gotten in trouble with the law through some early Internet-era hacking. This leads back to the “Craig” character (born as the son of a woman that th “me” character had sold a condo to) and the “angelic” virus.

There is a 2004 document that stitches these together, and tries to impose a “beginning-middle-end” structure on the viewpoint of each of about five major characters.

In more recent years, I’ve focused on a much shorter novel based on this scenario called “Brothers”, told from the viewpoint of an ex-military –intelligence officer, now a history teacher with a family in Texas, is recruited back into clandestine service, and a gay college student (in ROTC) who seems to have the “angelic” prognosis. The knowledge of the “Change” that hovers over the world is dispersed into military and intelligence bureaucracy, but the “tag team” of these two characters connects the dots as their relationship grows. All the other characters (including me, “Bill”) come back into the narrative, from their viewpoint.

There is something notable about the narratives based on my own experiences. I don’t share the “husband and father” motive of other men, partly because I was so non-competitive as a youngster when it came to gender norms, that I invented another way to see things. I came to see the world in terms of freedom of self-expression, which could include both works or output in the usual sense, but also the indirect social “accomplishments” of “upward affiliation”. External disasters, whatever they are, threaten freedom of mobility and of expression – they can destroy personal autonomy. We should have learned that back in the 1970s with the Arab oil embargo, and many other threats (of various kinds, including pandemics with the “social distance” concept). These external influences, which many people think they can do nothing about, do tend to be less of a psychological threat to people socialized through close, emotional compelling family ties, for people (even George Clooney’s dopplneganger) who see their own expressive futures fungible for the good of their kids and descendants.

In terms of this personal worldview, external “threats” posed by cabals with whom some like me has proxy contact become interesting plot material. There’s something about all this that views family and kids as an optional choice, not the essence (or “tree”) of life.

Wikipedia, articles about living people, and self-publishing; more on existing laws on piracy

2012-01-26T21:13:00.000-08:00

I’ve talked about this in the distant past, but one issue of concern to me is notability. I do not have an entry in Wikipedia, and a number of people that I know personally in some areas such as music, activism, writing, arts do not, and others have very brief, skethcy, or incomplete pages.

This is a good place to note Wikipedia’s standards for articles about living persons, link.

Note that it is acceptable to use self-published works by the subject of an article as sources for biographical material on the subject, but not to use (in most cases) self-published works by others as cited source material about the subject. The standards also emphasize verifiability, and explain the difference between this concept and “truth”. Self-published works include blogs and Twitter or other social media pages.

I’ve noticed that since social media came onto the scene and became politically and commercially influential, there has developed a belief that an individual ought to have only one life online (as well as off-line) and ought to prove that he can “sell” to other people with quantifiable or demonstrable results. This is somewhat a change of culture from the Web 1.0 world of a dozen years ago when passive self-publishing could really become very effective without demanding much in the way of accountability.

This is definitely an issue that I must work on in the coming months for my own “reputation.”

In another area, I’ve read (more to say soon in a book review of "Digital Assassination" by Torrenzano and Davis) that, outside the United States (especially Virginia and California), the main places where large servers hosting interlocked domains trafficking pirated materials tend to be located are in Australia, the Netherlands, and Iceland. Some major server farms are located in buildings that do not appear to be "commercial" and they are nearly always of "low profile" as to identifiability from the street. The point is that, even without changing existing laws (SOPA, PIPA, etc), the United States should be able to work with other countries to seize operations shown, through proper due process, to be set up merely to traffic pirated media or goods. Anyone setting up a legitimate business or publication on the web ought to do a little due diligence and make sure that the hosting company is legitimate and has a good reputation.

I notice that the my letter on SOPA to my own Congressman, presented here Nov. 14, is rather superficial, and I'm going to write another one soon, given the course of the debate in the last two months.

Does "cross selling" come from a "simpler" and singular privacy policy?

2012-01-25T21:05:00.000-08:00

There has been a lot of controversy over Google’s plan for a “single privacy policy”, to be implemented March 1, stated here. It appears that there is a strong preference that customers always use the names they are actually known by.

PC World has a detailed discussion of the increased effort to coordinate the same information against all applications, which Google says will enable it to serve customer needs more specifically. Facebook has been saying the same thing in principle with Timeline (which becomes mandatory in a few days). It’s clear that the business model of all of these companies requires considerable specificity in connecting users to potential sellers. That is somewhat part of the price of “free content” and, more important, low “barrier to entry”. The PC link is here.

It’s not immediately obvious whether browser controls or other “do not track” mechanisms could interfere with these efforts by Internet companies to do such heavy cross-selling; but probably not, because the information application-sharing affects so many other activities besides surfing. I used to hear the buzzword "cross selling" a lot when I spent twelve years in IT in the life insurance industry.

The Boston Herald has an article about the Big G going for the “Dark Side” (Raakhee Mirchandani), here. So do many other major papers. But it seems, so must every company taken seriously by Wall Street, to maintain stellar earnings now expected. Let’s see the pressures Facebook faces if it goes public.

I've noticed, when I travel, that I get ads from most servers (including news sites) related to the geographical location I dialed in from (all companies know where my Verizon MiFi is, like when I'm in Dallas) and to the political issues that I write about a lot. Everyone is tailoring my "experience" with marketeers. That's probably not a problem for me because my life is relatively "simple", and security is straightforward. That's not the case for everyone, especially politicians and executives and people with big families.

SOPA now sounds like a glass of ice water, not yet thrown to wash away the drain flies.

Texas business professor slams piracy, supports SOPA-like measures in WSJ; discussion of "barriers to entry" and gatekeepers would follow

2012-01-24T10:46:00.000-08:00

The Wall Street Journal has an op-ed on p A19 (yes, I paid for a hardcopy paper today, cheers) by Professor Stan Liebowitz, a University of Texas professor of business, “Internet to Artists: Drop Dead” (aka “Ford to City: Drop Dead”, 1975), link here (paywall).

He argues that more convenient marketing innovations (like the iTunes legal per-song downloads for 99 cents) don’t really reduce piracy losses, and that the DMCA Safe Harbor interferes with preventing piracy because the takedown process is slow and can easily be outrun by pirates.

Liebowitz has papers on the Social Science Research Network, such as one here (purchase) that supports the idea that MP3 downloads (apparently when legal) suppress sales (link). Typically in the classical record business, I know that MP3 files with accompanying PDF program notes are often cheaper than CD’s, but many consumers prefer them because they can back them up in the Cloud, and don’t take up physical space in a home. Musicians tell me that generally they like to sell by mp3.

Liebowitz doesn't see the piracy problem as particularly correlated to foreign hosting.

The other area where there was negative news suddenly yesterday was again in the area of third-party online reputation tarnishment and in stalking, as on ABC Nightline last night (link with video here).

You can’t make the world “safe” (even for “Marathon Man” visiting the sadistic dentist) without creating “barriers to entry”, or at least maintain those naturally in place from the past. Where to look for examples? Professional sports is a world where obviously “barriers to entry” are very high, but where “winner takes all”. We can’t all become Stephen Strasburg or C.C. Sabathia. But we can all (more or less) become publishers on the web, at least for now (even if bloggers don't get hundred-million-dollar contracts). That could change, although fortunately Congress is backpedalling for now on SOPA and PIPA (the courts could still reverse the momentum back toward established media in Viacom). Of course, only the “best” bloggers, videomakers or other self-publishers will make money or at least be noticed. Not exactly, though. “Merit” is no predictor of what goes viral on the web. Barriers to entry “for safety” exist everywhere, such as getting on an airplane. Logically, something is worthwhile only if there is a finite supply of it. Logically, “getting published”, which used to be a lot harder when controlled by legacy gatekeepers, still is only meaningful when there is an upper bound on the amount of media put out there for everyone to see. You could see this "reasoning" extending to access to knowledge (Wikipedia) at all, as if knowledge ought to correlate to earned (or inherited) social hierarchal or familial position. Somehow this reminds me of Liousville’s Theorem (in Complex Analysis), which I had to prove on my Master’s Orals at KU in 1968.

The “safety net” is what would burden everyone with his own agenda to accept the supervision of others on the Web, if draconian measures to crack down on abuses on the Web were really enacted. On the other hand, ordinary users are not really the cause of significant piracy. It is specifically operations of mass uploading and downloading of whole works and encouraging some elements of the public to consume them (rather than purchase from legitimate sources) that does.

Liebowitz sidesteps the idea that pirated or illegal materials advertise materials, that consumers will eventually purchase legally what they can afford to pay. For “The Artist” (at least a new artists), business models and legal risks cut both ways. New artists need to self-publish to escape the gatekeepers, but then they need to get consumers to pay – and many consumers simply cannot afford to. They have survival concerns and families to feed.

Righthaven domain name taken over by new service provider,

2012-01-23T21:12:00.000-08:00

A big concern in the SOPA/PIPA “debate” is the idea that service providers could not afford to host “free” user-generated content if they had to take liability for what their “customers” do. But suddenly there is a service provider with a “spine” which says it will defend its users if the law takes a long turn. Hosted in Switzerland, it may be choosing its members carefully, however. (I like the metaphor: its clients aren't interested in PhD's in invertebrate zoology, no matter how smart some cephalopods are. And a spine isn't just a notochord.)

Ironically, the group has taken over the “Righthaven” domain name, and here is its FAQ page explaining its intentions, link. Admittedly, the writing style here is a bit indirect.

We will surely hear more about this. "Righthaven Victims" tweeted this story today.

Supreme Court limits warrantless intrusion onto personal property by GPS and probably wireless; more attorneys say SOPA is unnecessary to stop piracy

2012-01-23T18:07:00.000-08:00

Today, the Supreme Court ruled that law enforcement can’t attach a GPS device to your car without a warrant. The ACLU is urging citizens to support a Gelocation and Privacy Suveillance Act, in this (website url) posting.

It makes you wonder about all of the Nixon era wiretaps.

The case was U.S. v. Jones. The slip opinion has been posted here. There will continue to be legal controversy over monitoring electronic and wireless communications when no insertion of a device is necessary (such as trolling emails or tweets).

I had a conversation today with an attorney, who said that in practice SOPA should be entirely unnecessary to control sites doing illegal uploads for piracy. The government typically gets warrants for court approval to seize assets of sites using large server farms. The Alexandria federal district court has jurisdiction over a huge server farm used by many companies on the East Coast. Typically, many foreign operations will use these farms. Yes, the federal government could get more cooperation overseas to seize similar operations (as ICE does here). That way, it wouldn’t be necessary to enlist other providers and even web users to be responsible for policing for privacy. He agreed that an element in Hollywood would like to eliminate amateurism from the Web.

Don't forget Viacom-YouTube case is still under appeal; newspapers weigh in on the philosophical gap among legacy, Internet business and legal models

2012-01-22T17:17:00.000-08:00

Today, the big Sunday papers offered some philosophical tomes on the recent “food fight” between legacy media and new Internet over how to control piracy. In the New York Times, Business Day, p. 4 (Jan. 22, 2012), Amy Chozick offers “A Clash of Media Worlds (and Generations)”, here.

She quotes Silicon Valley attorney Michael H. Rubin as saying, “Incumbent industries choose legislation and litigation over innovation.” She also reminds us of a dangerous detail, that Viacom is appealing a federal judge’s ruling against imposing downstream liability against YouTube because of commonly held interpretations of DMCA Safe Harbor, in a manner that parallels the provisions of the 1996 Telecommunications Act Section 230 (which is normally used in a libel context rather than copyright). PBS has an article by Rob Arcamona, July 2, 2010 (shortly after the ruling) explaining downstream liability limitation in detail here. It would make for a good Frontline program. I don’t know when an appeals court would rule on Viacom, but I suppose it could come in early 2012, perhaps by spring. If Viacom were to win, we would be debating, probably in front of the Supreme Court, the ethical and legal ramifications of downstream liability (for user generated content containing infractions) while Congress might be recycling PIPA or SOPA.

In the Outlook section, p B1, of today’s Washington Post, Rebecca MacKinnon writes a piece, “Why doesn’t Washington understand the Internet?” The online tagline is “Can Congress and the Web get along?”, link here. Only recently has Silicon Valley started to accept the idea that it has to learn to lobby and litigate as well as “make law by coding” (Lawrence Lessig’s concept, although that’s practically what Mark Zuckerberg did with his whole adult life!) A classical musician friend of mine has coined a word for this process, “timocracy”, which will probably stick in the English language. (Who needs political parties anymore, anyway?) MacKinnon notes that “To stay safe in real life, we give up some liberty; Online, we’re not ready to sacrifice freedoms”. Indeed, the possible perils range way beyond piracy, to include identity theft, terrorism (steganography), and cyberbullying. MacKennon gives comparative histories of the Communications Decency Act and then the Child Online Protection Act (COPA), both of which presented existential threats to freedom of users of the Web that anticipate those of PIPA and SOPA; both failed to survive court challenge. (Note the rhyme.) She also notes, in the behavior of Congress to date, “it has somehow become acceptable to pass laws that presume Internet users are guilty until proven innocent.” Rebecca has a new book, due Jan. 31, “Consent of the Networked: The Worldwide Struggle for Internet Freedom” , Basic Books (link).

Ezra Klein has a simpler piece in today’s Post, a Q&A with Senator Ron Wyden, “A push to protect Internet from a tangled web of piracy bills”, link here. It mentions explicitly the “turn Websites into Webcops” provision.

Remember, the problems of “downstream liability” fall into two phases. One part is that a “foreign site” could be taken down because of the undetected infringements of a minority of users. That could be mitigated by limiting the definition of “foreign” much more rigorously, perhaps. The other successor part is that, once a site is blacklisted, it could be illegal for any search engine to link to it. (Some say that “search engines” aren’t even entitled to prior notification in the bills.) One problem is that the definition of potential search engine is broad, but it could be limited to those sites whose user searches can actually reach the entire web, rather than go through a compendium (like Wikipedia or even my doaskdotell.com). Congress has practically admitted that playing with the DNS system (while it would ironically eliminate any potential liability for hyperlinks) could cause another 2008-style crisis for the DNS system (resulting in emergency summer meetings at Microsoft, remember).

Of course, in part, this all sounds like a desire of the legacy media gatekeepers to keep their monopolies (or oligopoly),of the big to exercise their “divine right” powers to make small fry “pay their dues” before being allowed to speak on a global stage and compete for customer attention. On one level, it reminds us of historical struggles over anti-trust. On another, it reminds us of a “hidden in plain sight” notion among social conservatives, that people should have personal responsibility for other people (translate as “be able to compete in the protection racket game”) before expecting to have a public voice. (Add “family values” to all of this. It isn’t hard to see where it leads. I’ve called all this “the privilege of being listened to”. Having to police others and play "Brother's Keeper" would seem to be part of the territory.) For those who see the world this way, eliminating user-generated content seems like a small sacrifice to protect big media from pirates (and from low cost competition). Yet, user-generated content really isn't responsible for significant loss to Hollywood. It's wholesale illegal uploading and downloading of whole media objects that does, but Congress and the media companies seem to be uninterested in drawing any lines.

History, after all, could have gone differently since the early 1990s. Be thankful for Safe Harbor and Section 230, both of which can be gutted. We could easily have wound up with a world of no unsupervised UGC online at all. And today we wouldn’t be talking about it. Take nothing for granted.

For dessert, here's another "Occupy Congress" video of mine from last Tuesday.

MegaUpload shutdown by "fibbies" may help show that SOPA, PIPA are not "needed" so much

2012-01-20T08:59:00.000-08:00

Federal authorities have shut down a site called MegaUpload, which the government says was set up primarily to facilitate piracy and money laundering, in a recent indictment. The shutdown occurred by seizing physical assets, including servers in Washington DC and Asburn, VA. The CNN story is here.

The Justice Department and universal music sites were attacked with denial of service, in a widely reported story.

The US government (and probably ICE or Customs) apparently had jurisdiction to take action, without the need to impose a secondary liability for policing links or payments, as is feared with the proposed Protect-IP and SOPA legislation. It's important that the government was able to act in concert with countries overseas without SOPA.

The Senate has reportedly put off a planned Jan 24 vote on PIPA/Protect-IP. Over 35 Senators have spoken out against it (it takes 41 to defeat it).

MegaUpload is still marked “green” by McAfee, and attempt to go to it simply hangs (I expected a Customs intercept).

The Justice Department site was working normally Friday morning. But it does not yet mention the action against MegaUpload.

Nate Anderson has a perspective on Ars Technica as to why the US acted so drastically against MegaUpload, here.

This morning, a CNN commentator offered the speculation that the feds really could bring such action against YouTube if the fibbies (John Grisham’s term) really wanted to. That’s scary.

There are other YouTube videos that claim that some in Hollywood actually used MegaUpload. This is indeed an ironic development the day after the SOPA Blackout.

LATER TODAY, I picked up a printed copy of American Prospect, Jan.-Feb. 2012, and found a detailed article by Rob Fischer on p. 26 on the ICE enforcement efforts and some more discussion of SOPA and PIPA. The article gave details about the prosecution of Ninja Video and later sports streaming site operator Brian McCarthy in Houston. The long title of the article is "A Ninja in our Sites: An aggressive federal enforcement effort targets online piracy--and exposes the clash between copyright protection and free speech", link here. Ironically, I discovered this in a Barnes and Noble regular bookstore, paid in a conventional manner (held up by cash register software problems), on the way to a conventional AMC movie. I still like conventional hardcopy print to look at sometimes.

Ninja had streamed a lot of stuff -- movies, foreign news feeds, TV episodes -- free, and some of the content would have been hard for visitors to find even when they wanted to pay for it, as I would. (One legal problem, as pointed out by the article, is that Ninja actually uploaded the stuff, so DMCA Safe Harbor couldn't apply. Illegal stream-site operators have gone for years before the fibbies come knocking at the door, but when they come, it's brutal. They bust in.) Media content owners are enraged when streaming site operators earn advertising revenue on their content even while giving it away, which is one reason why SOPA purported to go after secondary users -- advertisers and payment processors.

Could ordinary bloggers get into trouble under SOPA over mere links? Not likely, but "just maybe". Welcome to Chilling Effects. Will controversy get "frozen out"?

2012-01-18T18:54:00.000-08:00

As Reddit is back on line and the “Blackout Day” comes to a close, I wanted to look at some of Reddit’s claims (link on yesterday’s post).

Reddit’s main concern seems to be the part of SOPA that requires sites to scrub links to any legally blacklisted foreign site. It acknowledges (in the “No Duty to Monitor” provision) that compliance requirement doesn’t start until notification, but that search engines actually could be required to avoid listing any foreign sites that it could reasonably suspect of future infringement.

There is some controversy over what constitutes a search engine. Any dynamic site that accepts user input could apparently qualify, including Wikipedia (according to Jimmy Wales’s own statements) and “live blogs” as well as Reddit itself. The definition is much broader than just the conventional concept illustrated by Google, Bing, and Yahoo!. In theory, my “doaskdotell.com” might fall under this definition, because it has a Pico Search box accepting user search arguments of varying formats, and purports (in somewhat the same spirit as Wikipedia) to be a structured knowledge base about “political debate”.

In theory, this all could mean almost any substantial knowledge site or blog (or interrelated group of blogs like mine) could be required to somehow access as list of prohibited sites before offering a link.

Do I believe this would really happen? No, but the very possibility creates a chilling effect for Internet investors (including people who might work with ME in the future. Remember, also, there is a clause about "technical feasibility", and this whole discussion about hyper-links is in the "after the offense" part, not the part that gets a site labeled as "dedicated to infringement" based on a possible minority original violations. (Remember, on that, Lamar Smith had said that sites like Facebook and YouTube couldn't possibly be considered infringing, but he gives no real legal reasoning that matches the language of the bill as it follows.)

I’m impressed that Reddit (and Wikipedia) believe that the big money lobbyists from legacy media are trying to get Congress to draft the “little guys” who want to be in the media to play their game as foot soldiers protecting them from foreign competition. (Wikipedia, in fact, has a rather explicit statement on its blackout page to that effect.) Since US law cannot go after “foreign” sites as readily (the way ICE or Immigrations and Customs Enforcement may in the US, seizing physical assets so that it is impossible for a suspect criminal enterprise to keep its web presence up), it’s trying to prohibit ordinary Americans (individuals and small companies) from doing business with them, as if this were the moral equivalent of war. Again, as Patry said, it seems to be expanding its role of gatekeeper and ability to demand sacrifice and tribute.

“Piracy”, it seems, becomes the excuse to go after all foreign competition, in a strategy that seems to put ordinary Americans against the low wage workers of other countries, especially Russia and China. That’s how a far-Left interpretation of SOPA could go. Ironically, it reinforces Donald Trump’s claim, “The Chinese are not our friends.”

The logical way to go after real piracy threats from overseas (and they are real) would be for the State Department to do its job – to work with overseas governments and step up enforcement against the “actual criminals” rather than impose partially prospective downstream liability on Americans who may do business with them. It sounds like the thinking behind “Know your customer” or “Know your shipper” – again, a quasi-war concept. All the sudden, the individual with a blog is the moral equivalent of a company with a lot to gain – but is that what the blogger signed up for?

Scientific American printed a brief missive (by Larry Greenemeier) “SOAP Opera: White House shuts down anti-piracy bill”, rather dismissive, with a quip about “free content” which some found offensive today, link. Look at the comments. The first comment warns “Commercial sites that lose money any time they are falsely accused of hosting copyrighted information will freeze out any users with marginally contentious or controversial content”. But later another commenter warns “I can’t believe the liberties that some people think they alone are falsely entitled to.” Does he mean the media companies or ordinary people?

Under SOPA, service providers would be liable for "circumvention methods" provided by end users

2012-01-17T19:35:00.000-08:00

On the eve of the Wikipedia-Reddit (and others) Wednesday SOPA strike, Electronic Frontier Foundation, in a new piece by Trevor Timm, on why the Obama administration’s opposition to SOPA and PIPA (or Protect-IP) fall short of the real problems. (Note: these blackouts generally apply only to English-language versions and there are "workarounds".)

Timm mentions a new wrinkle in the “School Detention Problem”. He says that major service providers (Blogger, Wordpress, YouTube, Vimeo, all kinds of other services) would be responsible specifically for “circumvention information” posted by any users, as well (in the “detention sense”) actual infringement by some users. I had not heard that problem mentioned before.

The link for the EFF article (Jan. 16, tweeted today) is here.

EFF also notes a blog entry on Bricoleur which gives another good example (“Overbroad censorship and users”) of how the rogue downstream liability problem could work, here.

We have a real problem in our policy making in deciding when people should be held responsible for the actions of others when they are not able to know precisely what these actions are. You could call this the “Public Policy Heisenberg Uncertainty Principle”. (Or even invoked the New Testament and call it the "Brother's Keeper Problem". Or something like "Know Your Customer".) Ultimately, the “innocent” can suffer, but some people see such microfocus on personal expressive rights as unsustainable or excessive hyper-individualism. Ultimately, so much of this is about the “establishment” believing it needs some “gatekeeping” authority of what just who can belong to the “media club” at all.

Here is Reddit's explanation of SOPA and Protect-IP/PIPA. Note that it may not be directly accessible for part of Wednesday Jan .18 (or maybe they'll make an exception just for this file), link.

Mark Zuckerberg posted Facebook's position on SOPA here today (Wednesday). Yes, the head-shot is cute!

Large newspapers and AP work with new company called "News Right" to license news stories and track plagiarism; trolling won't happen, they say

2012-01-17T10:00:00.000-08:00

Several newspapers (including the New York Times and Washington Post) and the Associated Press have been collaborating to create a system called “NewsRight” to license news stories and track possible infringing use of their news stories. It's ironic, for me at least, to learn of the story the day before the big "SOPA Strike".

Mashable has a story from Jan 5 by Zoe Fox, “A Game Changer for Online Journalism” but is not very specific, link here.

Bloomberg has a story Jan. 5 emphasizing the concerns over sites that automatically scrape whole stories and surround them with ads, link here The implication is that newspapers are not so concerned with mere linking, by bloggers who then add their own commentary or perspective. Some stories, especially on television station sites, say on AP stories that they may not be “rewritten”, but generally paraphrase, unless very close, is not considered copyright infringement.

The Online Publishers Association has a story here.

“Paid Content” (story) says that the News Right system will serve over 800 newspaper sites soon. It won't lead to trolling or mass litigation, the new company says.

The issue of “Fair Use” in reproducing entire stories has become controversial, as we know from the Righthaven “mess” and copyright trolls.

Back in 2000, the issue of hyperlinks was more or less resolved, because courts said that hyperlinks alone were like bibliographic footnotes in a term paper. Companies already have the easy ability to control whether they want their videos to be embeddable.

NewsRight has a website under development here.

The AP has also said it will not track users who have “do not track” options turned on in browsers.

Updating the proposals from my 1997 "Do Ask Do Tell" book; my own plans; Wikipedia plans blackout to protest SOPA/PIPA; activists plan a "SOPAStrike"

2012-01-16T14:35:00.000-08:00

In the coming weeks, I’ll be making specific commitments (to myself, but in public) to submit my film and music content to others for eventual professional production, through the establishment “legacy system”.

But I wanted to bootstrap this effort by reviewing what I said in my first 1997 book “Do Ask Do Tell: A Gay Conservative Lashes Back”, and account for what has “changed” since then, in fifteen years.

The focus in that book was on defining and protecting the rights of the individual, especially when he/she is “different”. I thought moral debates could be cast in very simple terms of "absolute responsibility for the self" and then sometimes re-expanded when necessary. Much of the book dealt with the rights and exposures of “gay people” (I’ll contract or skip out here on the “distinction” between status and chosen actions), but some of it involves many other areas of self-satisfaction or transcendence. There’s a natural tension between the individual’s own purposes and the needs of people in the community around him, to which he may owe something. I took the position that the role of government in these areas should be very limited, or in some cases localized. Most of the specific proposals in the book, including the constitutional amendment proposals toward the end (in the last chapter) limited the ability of most levels of government to regulate the individual, even in some situations such as being in the military.

The limitations of government were particularly concerned with areas where people try to use the legal system to scapegoat those who are “different” for problems that call for more personal responsibility from everyone. This involved other areas (outside of sexual orientation) where people claim “influence”. Scapegoating goes hand in hand with organizational corruption. At the same time, people may reasonably question the motives of those who are different, of what makes them tick, of what they would accomplish with full freedom.

Several trends have changed since the mid 1990s, when I wrote most of the book. The most important change may be that life is a lot more public now. “Privacy” (or the protection of “private choices”) is not an adequate metaphor for human rights. The world of social media has made double lives difficult (or a sign of lack of “integrity”) and also made personal motivations more apparent and more influential. Therefore, the emphasis on “equality” has replaced it. Yet, in some natural physical or biological sense, absolute “equality” cannot exist. People have always needed to relate to one another with a sense of complementarity, and accept some need for interdependence. Libertarianism has tried to reduce “complementarity” to the “vector basis” of the free market, but there are natural limits as to how far this process can go and still allow people the social cohesion they need to face big problems together.

Indeed, the appearance of the “big problems” is another important trend. The most obvious of these are climate change and demographics – an aging population. Others could include terrorism or a variety of other possible calamities, like pandemics. People could need to relate to one another “locally” and give up the idea of “global citizenship” and reach as a copout and evasion from unwanted relationships with less than ideal people that happen to be available and in need. “Surplus” cannot be taken for granted; “adaptive needs” could storm back and determine a lot about the personal opportunities available, even to those who are different. "Sustainability" could provide a major challenge to global individualism, although "sustainability" alone isn't the only end; the Neanderthals sustained themselves for over 100000 years, but we don't want to follow their example.

I grew up in the immediate post-War period (mostly the 50s), when “morality” seemed to focus on the idea that, beyond just making personal choices that you could pay for, you were obliged to share common risks and obligations and support the common goals of your community and family. (In some contexts, cowardice could become the greatest evil.) I was an only child and didn’t see as much of this as others; the idea, for example, that adults able to step in and help raise other peoples’ children, such as siblings’ after unpredictable tragedies. These obligations were related to gender (most obviously with the male-only military draft, and the whole unfairness of the deferments, all ending in 1973), and tied to familial and political “power structures” which became somewhat discredited in the 1960s with Vietnam, Stonewall, and eventually Watergate. From the 70s through the 90s, morality focused more on answering for one’s own personal choices (the libertarian model), such as taking responsibility for the children you had because of your “chosen” sexual behavior, and, later, taking responsibility for exposure to STD’s. Even so, it was clear that anomalies existed. People “choosing” to have kids (and hopefully marry first, still) take on risks and enormous expenses that an society dedicated to individualism may make too costly, making the sustainability of that society questionable. Since 9/11, roughly, and given all the crises of the last decade, as well as publicity about both the hardships of people and the ability of medical technology to treat many things, the pendulum about “personal responsibility” has swung back a bit, with more sense that some things ought to be shared by everyone.

I expressed concerns about this in the 1997 book. I was concerned that government “subsidized” certain behavior, which meant eventually that non-participants help pay for it. This idea occurs everywhere, from parenthood to using public transportation. But a broader view is (a principle that typically forms a kernel in social conservatism) that when people take care of one another personally, mostly in the family unit but also in the community with service, government has less reason to intrude and in general there is more liberty. In the book, I took the position that it is appropriate for government to reward (as by taxing less) persons who provide total economic support of others, usually dependent children, but also the elderly and disabled, the latter two categories having become much more important in recent years.

The concern is not just a utilitarian one about paying for personal care, childrearing and eldercare. It also has to do with the attitude of the individual toward others, about his expectations for his relationships with others, which can become unrealistic in a world that overly supports hyperindividualism. This gets into areas where people have, at various times in my life, been concerned about my own use of fantasy, photographic watchfulness, and general aloofness – much more visible in an era of Internet self-broadcast and obvious need, which tends to make distance or indifference look like aggression.

As to some of the more specific points I made, some of which have become outmoded over the years, there are at least three areas of real problems.

First, of course, the recommendations in my long (Chapter 4) on the military gay ban and “don’t ask don’t tell” policy would now be obsolete because the policy was repealed, with a long process that started in 2010 in Congress and ended with “certification” in the fall of 2011. From a practical viewpoint, a major concern is maintaining a political climate (with the 2012 general election) that does not lead to reimposing the ban (with some of the GOP candidates). In fact, my original involvement with the issue in 1993 had been motivated by what seemed like a parallel between the concerns over “privacy” in military barracks and similar concerns in the dormitories at William and Mary as I had experienced them in 1961, when I would be expelled. As I’ve noted, the concerns over “privacy” have waned in our culture since 1993, and a world of Facebook makes DADT totally unworkable. But the military buzzword “unit cohesion” has applicability in the general society, with a broader concern over social and familial cohesion. Most of my recommendations in 1997 centered around President Bill Clinton’s “don’t pursue” clause, and were predicated on a now outmoded notion of privacy and even personal secrecy.

Second, I had actually proposed a constitutional amendment that sounds a bit too much like DOMA (the Defense of Marriage Act), which may well fail in court eventually. But at the time, I wanted a legal climate where states thought they could experiment with allowing various forms of civil unions and then marriage – which were just beginning to cook as an issue in the mid 1990s (with Hawaii and Vermont). Reducing the federal impact might encourage more states to liberalize same-sex benefits laws as much as possible locally. But in the past eight years or so, the concept of absolute political equality has become more critical (Washington Blade former editor Chris Crain’s “Piddle,Twiddle and Resolve”), as some states approve full gay marriage and Congress sometimes considers banning it by amendment. Why is “equality” so important to those who aren’t married and who say they don’t even “need” marriage, and just want “freedom”? (That used to be the mantra.) Because eventually sacrifices are demanded of everyone to help deal with common problems, that are increasing. My own story with eldercare in the past decade provides plenty of material. With parenting, we have a curious tension now between claims of a tremendous need for adoptive parents (to the point that every adult should take notice), and the supposed importance of the “mother-father” family as an absolute ideal and birthright. Do they want me or not? Again, my experience as a substitute teacher provides a trove of stories. What is becoming apparent is that belief in the “family values model” (that every competent adult should be expected to strive to raise a family through a conventional marriage – and follow the Vatican “openness to new life” principle) is critical to some people in being able to keep their own marriages together (or even to form them in the first place).

I could characterize my perception of the importance of communal motivation and sustainability as something like a "climate change" that is occurring now, compared to the series of cultural squabbles fifteen years ago that were more like "weather events". In the 90s, I generally had the perception that "having a family" and participating in familial and communal closeness was a personal choice that went with personal responsibility, although there were "deviations". Today, it's clear (again) that responsibility for other people doesn't wait for a chosen act of procreation to come down on one's shoulders. If you don't chose it, it will be chosen for you.

Indeed, for me, one of the most threatening prospects can be to thrown into dependency on others by circumstances beyond my control. But "freedom from interdependence" was never a fundamental right; it just looked that way for a couple decades.

Third (returning to my 1997 proposals), I had suggested that some forms of restriction on minors-inappropriate Internet publication would be appropriate as long as it was allowed behind adult-verifications screens. At the time I wrote the proposal, the Communications Decency Act was still before the Supreme Court (I even went to the oral arguments in March 1997). At the time, I thought a verification provision would save things. As we now know from the COPA litigation, this wasn’t feasible – although I think a content-labeling scheme could be developed.

What has become apparent is that the ability of “average users” to post content on the Web without third-party screening and particularly (in most cases) without eventual third-party downstream liability, does expose the “public” to indirect risks – varying from piracy to cyberbullying – that may be hard to manage legally because of the way the Internet works. I’ve been covering the debate over SOPA recently (and there’s another detailed story on the Business front page of the New York Times today, by Jenna Wortham and Somini Sengupta, link). Wikipedia (as of this writing) plans a 24-hour blackout on Wednesday January 18, 2012, information here (the "Kids do your homework early!" tweet from Jimmy Wales here -- I hope civics and government teachers will take this up in high schools this week). It seems that one could make the case that one should not be able to self-promote globally until one has taken responsibility for others and can “compete” and fit-in socially to provide for others. At least, that would be a potential argument from “social conservatives”. But perhaps its self-serving, a way to keep old power structures intact.

I also understand from YouTube that Reddit also plans a blackout. In fact, later information is that a number of sites will participate, for at least 12 hours Wednesday. Here is the story on Webpronews. There is a site called "Sopastrike" that instructs individual webmasters how to participate, link here. I do not intend to disable any of my own sites during this period. As of late Monday night, there is no information from any of my own service providers that they will participate.

Obama administration opposes parts of SOPA, Protect-IP related to DNS; non-committal about other provisions that affect "amateurs"

2012-01-15T16:25:00.000-08:00

Edward Wyatt has an important story in the Sunday Jan. 15, 2012 New York Times, “White House says it opposes parts of 2 antipiracy bills”, online link (paywall) here.

The Obama administration is reported to be most concerned about any tricks played with the DNS system, causing registrars to unlink domain names from IP addresses, partly for security reasons. It appears less concerned about the provisions concerning search engines, advertisers or paying entities.

The New York Times story has some language (perhaps imprecise) that is a bit alarming. It mentions “a measure that would force Internet service providers to block access to Web sites that offer or link to copyrighted material.” Merely hyperlinking to infringing material from a blog or conventional web article would not trigger the law, as I understand it. Then later it mentions provisions that prevent “American search engines like Google and Yahoo! from directing users to sites that allow for the distribution of stolen materials.” Again, in theory, it sounds as though a search engine could be prohibited from displaying a site, even an amateur one, that has inadvertently allowed subusers to post infringing materials. This is what I have called the “Detention Problem”, following the model of punishing a whole class for the sins of one person.

It isn’t clear that would really happen to larger services (YouTube, Vimeo, Flickr, etc.) but the language seems to allow it and it is indeed difficult to narrow the legal language with confidence. This may be a case of trying to prove a negative (or, as mathematicians say, prove that something doesn’t exist, by contraposition), and presents a problem with all legislation of this nature.

In the worst case scenario (because “there exists a case where ….”), a service allowing me to publish (like Blogger) would have to review every posting I made to make sure it couldn’t infringe. Obviously, a service provider could no longer allow “amateurs” to self-publish on the Web in such a legal environment. I would have to prove I could compete in the older “winner takes all” world.

Ironically, I’ve been planning recently to submit a novel and screenplay(s) to conventional agenting sources. But I’ve been expecting to use my online presence (using the Web as it is now) as part of the strategy.

It's important to note that the government has some ability now to shut down sites selling counterfeit goods, under ICE (Immigration and Customs Enforcement) at the Department of Homeland Security (for example, the DHS press release from Nov. 2010 here). I've actually known people who worked at Customs in I.T.

Conservative writers weigh in on whether IP is really "property" as libertarians understand it

2012-01-14T19:45:00.000-08:00

Today, before boarding the Metro, I picked up a hard copy of the January 2012 “The American Conservative” and found an interesting perspective by Sheldon Richman on p 32, “Ideas”, called “Patent Nonsense: Intellectual property enforces a monopoly over the mind”. The link will be available shortly from the “Center for the Study of Innovative Freedom” here.

Richman goes back to the simple argument that property rights (as libertarians understand them) make sense only for property that is naturally scarce and perhaps finite. That reasoning sounds most applicable to real property. (A lot on Mars has infinite cost because right now there is zero supply and zero access.)

For intellectual property, rights holders intentionally and artificially make the product “scare”. Richman makes the same arguments as Google counsel Patry in his recent book.

The most glaring problems from the viewpoint of bloggers concern republication (Fair Use). But actually copyright can involve any copying, even for personal use, until there is a Fair Use exception. Therefore, Kinkos employees won’t Xerox photos or music for you. Media companies sue P2P downloaders (although that practice has been changing recently) because they claim they have a right to be paid for the “copies” of music or movies, and to a reasonable extent they do.

Today, in fact, I got around to seeing how I was going to listen to my old vinyl classical records (before the 1980s -- even a few old 78s) with my receiver and home stereo, and only now came to realize I probably need an iPod (after all) and a digital USB turntable-tonearm (like an Ion). The media companies don’t try to stop me from copying old phonograph records onto an iPod because they know they don’t have a reasonable hope of more sales. But back in the 1960s they didn’t try to stop me and a friend from making backup reel-to-reel (later cassette) copies of records to prevent record wear (even from feathertracking arms and elliptical styli). We bought so many original records anyway that they made out on us. Now, young composers say they don’t have room for CD collections, and do all their purchases on MP3’s, preferably for the MacIntosh (and iPod). Collections become digital directories (MP3’s and PDF notes, backed up in the cloud – which the record companies want another cut of).

We all know from the DMCA that the media industry controls copying, even for home use, of DVD’s. BluRay’s typically come with an option to make a digital copy to iPod by a particular deadline date. Sometimes they come with other rewards, like free tickets to other “online events” (as with Josh Groban).

Today, when I put on a Netflix rental DVD of Universal/Relativity’s hit “Bridesmaids”, I was greeted with a message that to see all the other extras, the customer has to purchase a DVD or BluRay. (At the end, the movie rental DVD brings up the extras, and then gives me that rude warning, whereupon the iMac DVD player crashes after "not permitted".) I notice also that “Bridesmaids” is not available for instant play. But Hollywood has provided a good job of providing whole extra documentary films with BluRay versions of bigger films (Columbia Pictures offers a 90-minute extra documentary on the actors who played in “The Social Network”, as if Jesse Eisenberg (and Arnie Hammer and Justin Timberlake ought to be compared to Mark Zuckerberg (and Sean Parker and the “Winklevi”) in biography as well as on “SNL”). WB offers a long short on “lucid dreaming” narrated by Joseph Gordon-Levitt and some animated shorts and 30 minute concert orchestral suite (by Hans Zimmer) with “Inception”. The for-purchase, single-user BluRay’s do offer content not even available in theaters.

Is SOPA really a front for oligopoly by legacy media companies

2012-01-13T10:55:00.000-08:00

So, about 10 days before Congress returns, where are we with SOPA?

I still have the general impression that very little of this is really about saving jobs, even though I am aware of all the reported problems (such as the supposedly illegal pre-releases of some pirated DVD’s before independent films come out).

Perhaps it does come down to wondering if there is a way to draw a clear boundary between a "Pirate Bay" and a publishing or streaming service with partial overseas operations that has some customers who sometimes do illegal things. And what's illegal sometimes is a matter of controversy.

More of it seems to be about the legacy media’s desire to regain its own old monopoly (actually oligopoly).

The established companies would still love to see the barriers to entry raised, the practical legal risks to smaller players great enough (even if the risks are answered “on paper”) so that less media is released and there is less pressure to accommodate consumers who may otherwise buy only in microamounts. It seems to be about power and control.

In our system, you don’t have a right to cut out competitor innovation that makes it cheaper for someone else to produce your product. You do have a right to be compensated for your own work.

Part of the concept of control is that in a normal property rights system, the property owner can define the uses others can make of his property. As William Patry argued in his recent book, in modern societies, that right is mediated somewhat by the common good. As libertarians argue, sometimes the “common good” is just a canard for the interests of a competing political power. True.

Copyright is tricky, because, in part, it does take away the owner of the “intellectual property” to define what is fair and “incidental” use in the work of others. So “Fair Use” by definition reduces some “control”. All creativity ultimately involves some copying. All the great composers knew that.

Update: Jan. 21

Bill Maher actually supported SOPA, in this YouTube video, although he admitted to not having read the bill, and seemed oblivious to the "downstream liability" concerns with regard to user-generated content. Maher says that his own film "Religulous" (2008) was pirated heavily.

Congressional candidates in both parties catch heat on SOPA/Protect-IP

2012-01-11T16:32:00.000-08:00

The media is reporting that Congressional and Senate candidates in both parties are feeling the heat over opposition to SOPA and the slightly weaker Protect-IP. Opposition is bi-partisan now and involving legislators who had been neutral or silent before. Generally, conservatives may be opposing it more than liberals.

CNET, in a story by Declan McCullagh, reports on pressure against Wisconsin Republican Senator Rand Paul, who no likely would get an earful on it from his libertarian leaning dad Ron Paul, a candidate in the GOP primaries. The story, about a “Reddit-based” attack on Paul, is (website url) here.

The Democratic candidates are also awakening. In Virginia, candidate Karen Kwiatkowski (D), running against Bob Goodblatte, warns that SOPA will be a burden on small media business and will result in fewer blogs and services. (Techdirt link)

In Tennessee, Independent Jack Arnold, running against Marsha Blackburn (R), writes this about SOPA (link) . Arnold calls SOPA “typical lobbyist-written legislation”.

Note that TechDirt, on the same page above, reports that Righthaven has filed an emergency motion to keep its assets.

Apparently SOPA is creating controversy, maybe divisions, at the Las Vegas electronics show ("CES 2012"), according to a Jan. 12 Washington Post story by Cecilia Kang, here.

Should government prevent publication of dangerous information when unclassified? What if bloggers have the info?

2012-01-09T17:48:00.000-08:00

On Sunday, January 8, the New York Times ran a stinging editorial, “An Engineered Doomsday,” link here. This refers to the engineering of an arbovirus / zoonosis H5N1 virus (easily transmissible from animals to humans and then to subsequent humans), when most H5N1 viruses today are not easy to transmit to subsequent people. (I covered this before on the Issues blog Dec. 20, 2011.)

One can wonder why these experiments weren’t done under US or NATO military security under highest levels of classification, then the concerns over publication would be moot. But apparently they weren’t, and the government wants to throttle publication ex post facto. Out of unusual concerns about the possibility of leaks, the liberal New York Times agrees.

Normally, a virus of this kind would be kept locked up under strictest security at Fort Detrick, in Frederick MD; but in fact that facility is far from perfect on security, as we know from the “Bruce Ivins” mess.

There is a legitimate need to keep some small minority of government materials away from the public. High level security clearances are appropriately a major employment issue. Even so, overclassification has become a serious problem, diluting the credibility of the government’s need to keep some materials secret for legitimate national security reasons.

In any case, the NY Times boldly argues, regarding the proposal for some journals to publish the findings on the artificial H5N1 in redacted form, “we doubt that anything at all should be published, but it is clear that something will be.”

A much broader problem is that “amateurs” do publish material on the Internet that sometimes others can use for harmful purposes. My mother used to call this “giving people ideas”, although I think most of the time the people know the ideas anyway.

It is possible for bloggers like myself to come across materials that probably should have been classified and that would be dangerous in the wrong hands. This possibility complicates the arguments about whether bloggers should enjoy the same privilege of withholding sources as establishment reporters.

On at least three occasions, I have received unsolicited information by email that was credible and obviously sensitive. On all three occasions, I have called law enforcement and refrained from publication. One situation resulted in a 20-minute phone conversation with an FBI office in Philadelphia, back in 2005. I simply regard this as part of the “See something, say something” advice from law enforcement, regarding materials that could point to possible terror attacks.

I was not so deferential with the YouTube video of Bradley Manning's Wikileaks tape of the Iraq friendly fire incident, which I did link to on my "disaster movies" blog April 7, 2010.

Could SOPA affect the book self-publishing and print-on-demand business?

2012-01-08T16:21:00.000-08:00

Continuing yesterday’s comments on the “balance” to be struck in SOPA, if some bill dealing with infringing “rogue” foreign sites can be passed at all without unintended consequences – I again come back to wondering if Congress really will put the participation of “amateur” or “newbie” speakers on the Web at risk – by leaving service providers too exposed to unpredictable litigation.

One problem is that some people do not believe that people should speak out public and “globally” without earning the privilege first. Why? In large part, because it wasn’t really possible in the past.

The cost of self-publication starting coming down in the 1990s, first with desktop publishing, and then (somewhere around 1998) with the sudden effectiveness of search engines on the Web, in the “1.0” world. Before the 90s, the “gatekeepers” had pretty tight control on what got “out there”.

This of course begs another question – could SOPA affect the print-on-demand book publishing industry, which largely supports self-publishing or sometimes what is called “cooperative publishing”.

Could a print-on-demand book publishing service get on the “liability hook” for publishing an infringing book accidentally? Of course, such companies make their authors indemnify them against the “risk” (as a contractual provision), and these clauses have almost never been invoked. The SOPA/Protect-IP world could change that.

One could start asking the question for newer sheet music publishing services, too, since self-publishing among composers has become more common recently.

There are those who maintain that public speech should come only from those who have “responsibility for others” first. If something is put it out there, it should prove (through consistent sales results) it can make money to support a family by gratifying other people’s wants. Otherwise it should come off. (I still get publisher’s emails and cell phone calls urging trying to mass-sell copies of my 14-year-old first book. Yes, it’s still out there, and, yes, I’m passive about it. I do need something new.) It seems like we still have a world where it’s about “selling” for its own sake. Even a Writer’s Digest article once advised self-publishers “Write what other people want?” Nobody cares about your opinions, it advised. But, who cares about the Truth?

SOPA/Protect-IP: how "real" is the danger to services enabling user-generated content?

2012-01-07T11:41:00.000-08:00

In the last couple of months, I’ve looked at both sides of the SOPA/Protect-IP matter, and presented them here.

It’s not easy to say where the “truth” lies right at this moment. But I can make a few observations, particularly in response to Lamar Smith’s defense of his own bill (Jan. 4).

First, it’s really hard to believe that the bill really would save many traditional legacy jobs in the movie and music business. Most of these jobs still go away because of other volatile economics and because of the frequent mergers in these businesses. My own experience, with people I know, is that people interested in valuable media content will pay a fair price for it as long as it’s convenient and efficient for them. It is true that people troll subways and streets in lower income areas (especially in NYC) trying to sell pirated DVD’s of hit films cheaply (and some people make a “living” on this), but the purchasers of such products probably cannot afford $10 tickets and $24 DVD’s and simply would not consumer the items at all. It is a bit mystifying, however, that considerable piracy has been reported even with independent film, as I have covered on my Movie Reviews blog. Piracy is reported to have jeopardized the release of some films. Generally, I would not think these films to be well-known enough to have attracted piracy. Wolfe Video, a significant distributor of LGBT films, warns consumers about the problem (as a threat to LGBT film) on its DVD’s. I will try to find out why this is happening.

Likewise (second), in the music business, content owners need to offer consumers material in smaller singles, as with the iTunes model, which does work economically. I have contact with the classical end of the music industry, especially in NYC, and try to get more input on how these folks encounter the problem.

Third, the biggest concerns from SOPA seem to center on how it could affect large sites that offer video, photo, music and text publishing services on their domains. Google and YouTube may have a handle on the problem, but other sites (like Vimeo and Flickr) would seem to be exposed to serious vulnerabilities in the blacklisting “undue process” which unscrupulous content owners and copyright trolls could (and will) exploit, particularly given the idea that only a few infringers might cause shutdowns. Imagine what a Righthaven would try to do. It may be that the “blacklist” process can be tightened. But other suggestions, such as restricting to only “foreign” sites, may not work as most publishing services are international. Almost any service provider will have to set up a process to exclude sites on the “Blacklist”, exposing site owners to the possibility of errors.

Fourth, it is true that domestic shared hosting companies might be relatively unaffected, as they are not “sites” that can be disconnected because of the actions of the few (the “Detention Problem”). Ordinary bloggers (compared to search engines) are not likely to be pursued for linking to blacklisted sites, other than perhaps prohibited from deliberately bypassing DNS and hardcoding IP’s.

It is true that technology can automatically (that is, with cost efficiency) prevent some infringement, and YouTube already uses some automated procedures that trap some potential piracy. The legal environment would need to make sure that this does not lead to increased downstream liability for problems that are not caught.

This whole issue needs to be watched very carefully.

Electronic Frontier Foundation has an article Jan. 6 by Trevor Timm, “The Truth about the Economics Behind the Blacklist Bills”, link here. William Patry’s recent book “How to Fix Copyright” would add to this argument, especially Patry’s arguments about the resistance in Hollywood to abandoning its model of artificial scarcity and the role of gatekeeping (books blog, Jan. 3).

Lamar Smith defends SOPA online, says he debunks the "myths"

2012-01-04T06:07:00.000-08:00

For what it’s worth, Lamar Smith, sponsor of SOPA, ran a LTE to The Washington Times, defining SOPA, responding to TWC’s earlier editorial Dec 29, here. He claims there are court protections and that only foreign sites can be shut down. He claims that “foreign” rogue sites are beyond the reach of current laws, including FMCA and (current Homeland Security ICE actions which have been reported). He also says there is an improvement with a new “Manager’s Amendment”. He has a similar letter on the blogs at “The Hill” here.

The first comment following the Blog entry (by 130IQMAN on 12/14), though, says “YouTube, Vimeo and other such sites will be completely shut down”. The comment also says “the bill will kill ANY site with content on it that is not owned by them, fair use be damned”.

Does piracy really cost jobs the way the media industries say? Probably most people who could afford to pay for content do buy a reasonable volume of original material from regular retail operations (like Amazon); much of the illegal activity (such as selling pirated DVD’s on subways, which I have seen happen) probably goes to consumers who would buy nothing. Patry’s analysis, in the new book I reviewed yesterday, suggests that media needs to try to sell material in smaller increments (such as wih iTunes) and offer greater variety, rather than the same “cash cow” recycled stuff (such as movie sequels).

I also don't think the scope of the potential "blacklist" is just foreign sites, and there would be considerable difficulty in maintaining that limitation. The New York Times has previously suggested stricter limits to make sure the sanctions occur overseas only.

Smith also supplies an “issues page” with many links, such as one to an author Karen Raney, who writes “Digital thieves are stealing from me”, claims she is not rich and that her royalties have gone steadily down. There is a link to a “Fact Sheet” which is subtitled “responding to myths”. It should be noted that the “Fact Sheet” affirms that the bill would penalized frivolous claims or those made in bad faith.

The Pro-SOPA side has at least had its say. What about the “Detention Problem”? Congress has to be very careful in wording legislation about "unintended consequences". Or is removing competition from amateurs really "intended"?

Picture: A public library (from the old bricks-and-mortar world) in Sherperdstown, W Va.

Could one sell "online reputation services" and remain a citizen journalist? Conflict of interest?

2012-01-03T08:12:00.000-08:00

One aspect of “online reputation” deserves some focused attention. That is, a blogger may leave the impression online that he/she has a “propensity” to report on everything “wrong” that he or she encounters in life – in the workplace, in consumer areas, in medicine, in various living arrangements.

I’ve been in the “business” of “citizen journalism” ever since I set up the website to back up my 1997 “Do Ask Do Tell” book, and by late 1998 I was pretty well established in the search engines.

The nature of my material is that I can write about “almost anything” because almost everything is relevant to personal liberty, somehow. (Ask Ron Paul?) So when I go to a job interview, an employer has to wonder: is he going to quit after a couple of years and then blab online about everything he can find wrong with us? I wonder if that did happen with a particular job interview early in 2003.

In my current situation, I do have some cushion to build the infrastructure to accomplish what I want. More details later. But one challenge is just figuring out how to make things work on my own. That’s a different challenge, but that’s where I am now.

Could I go out, for example, and “sell” reputation monitoring services? Well, that would be hard to do credibly and report or blog objectively about the “right” of consumers to make complaints online (this gets into the medical service gag order problem). And it would be hard to be honest about the whole issue of “gatekeeping” as Patry develops in his new book on copyright (review soon).

But would make sense to work with school systems on helping teens understand “online reputation” and how do deal with cyberbullying , for example.

The use of social media, where “microblog” posts can be “targeted” to concentric lists of variously “friended” recipients, complicates the discussion further. Whitelisted posts are essentially like listserv posts, of limited impact.

Since the Universe is "young", our civilization may be an "early experiment"

2012-01-01T17:51:00.000-08:00

Charles Krauthammer has a dark-hued perspective in the Dec. 31 Washington Post, “The Fermi Paradox: Are we alone in the Universe?”, link here.

It seems to me that “intelligence” – especially when there is free will – is a “natural” development (“evolution”) that the Universe (or Creator) has to counter entropy (the Second Law of Thermodynamics). Matter tends to “organize itself” into intelligent (and "reproductive" -- again, to counter entropy) forms given enough time and the right conditions. There may exist many sets of possible “right conditions”.

Even on Earth, we’ve evolved, in convergent fashion, another animal with about our intelligence: the dolphin (including the orca). The only reason it can’t compete with us is the lack of hands with an opposable thumb. Eons ago, cetaceans “decided” it was easier to eat if they returned to the ocean as mammals. That could have been a mistake. Dolphins provide a meaningful experience of “alien” intelligence. They deserve more reverence than they get.

Perhaps a conscious entity, capable of free will, is an “object” that cannot be destroyed, any more than matter or energy. Perhaps it must evolve to some sort of godhead. I am 68, and even though I have twice experienced the interruption of consciousness from general anesthesia, and experience “Inception” when I sleep, it is still hard to conceive of simply not existing after death. There must be something.

My mother passed away at 97, slipping away gradually during the last year of life, the last four days in a Hospice, barely conscious at all. It’s hard to conceive of this.

Krauthammer believes there is an irony that intelligence can quickly self-destruct. (He alludes to the Cuban Missile Crisis of 1962.) But remember that the Universe is relatively young. Ours may be a relatively early advanced civilization. Perhaps there aren’t many now in our Galaxy. That would be disappointing. (I’m concern that the long-lived M stars like Gliese, only 20 light years away with many planets, are now said to have unstable output, and by reports that planets in tidal lock – probably quite common around smaller M stars – won’t have magnetic fields that protect them and protect life. Maybe we’re still missing something. Civilizations could move to them for “political” reasons that I can think of, but they’d have to come from more Earthlike places first. If we terraform Mars, the lack of sufficient magnetic field could make a new civilization there difficult to sustain.) Over many billions of years, after our Sun has become a white dwarf, there will be many more. Eventually they will learn to connect and master higher orders of creation, like black holes. If that takes 50 billion years to happen in our part of the Universe – even after galactic collisions – is that so surprising?

Wikipedia attribution link for diagram of planet orbiting Gliese, probably tidally locked.

Yup -- if a civilization sets up "Purgatory" on a tidally-locked planet around a star like Gliese (in the transition ring), will it allow Facebook access to its transplanted residents?

(Note: search html-title of posting has typo 'or' instead of "our".)

Downstream liability" : legacy media "principles" weren't as consistent as we think

2011-12-31T09:33:00.000-08:00

When do we base our public policy on "principle", and when on “need” or politics?

There are so many examples. For example, the idea that Social Security was something you (and your employers) provided yourself with FICA premiums has been eroded by political debates over means testing (need). That’s the case, a bit less so, with unemployment benefit extensions.

But the biggest debate over principal may be in the debate over downstream liability exemption on the Internet – in both defamation and copyright areas (through different means). Without limiting liability, user-generated content on the Web as we know it today wouldn’t be possible (because no business model for a provider could support it).

The underlying question posed is something like this. Is your cable provider a “publisher” or more like a telephone company? Likewise, what about a shared-hosting Internet service provider? What about a “free publishing service” like YouTube, Blogger, or Wordpress?

The look at precedents in legacy media is not as encouraging as one would like.

Look at the book (and periodical) publishing world? In the past, most books were published by “trade publishers” who shared liability. Typically they required authors to indemnify them against liability. In more recent years, self-publishing and cooperative platforms (especially connected to print-on-demand) have become more common. Sometimes indemnification agreements are still required. Books are distributed by “distribution companies” that are not so well known. Ingram is the largest. Mine was distributed by Bookmen in Minneapolis until it was acquired. Book distributors typically have little or no liability exposure and are like utilities.

In the world of movies, most films reach theaters and DVD stores through distributors, most of them well-known brand names connected to legacy studios. Typically distribution is separate from production, which is also accomplished by a lot of production companies, some well-known and some very small and set up for specific films. In the motion picture world, distributors and production companies share liability exposure, and complicated indemnification agreements are common.

That doesn’t bode well in setting examples for the Internet, where downstream liability is limited by Section 230 (for defamation) and DMCA Safe Harbor (for copyright). Even so, ISP’s and service providers sometimes add indemnification clauses for users. These are almost never invoked in practice, but if SOPA were passed in its present form, that situation could certainly change.

The legal practice that limits liability exposure (to the phone company model) has come to be accepted and expected by users, even though they have been in effect by statute only since the late 1990s. They are not necessarily guaranteed by long standing legal tradition or even the First Amendment. They can become subject to political debate (as over “need” and “vulnerable people”) and become fodder for lobbyists and campaign contributions (as by legacy media in Hollywood who, as Patry points out, perceive a strong business incentive to keep their roles as gatekeepers of what gets made and gets distributed at all).

The matter becomes even more complicated when one considers that social media have promoted the idea of “whitelisted publishing” to known, concentric circles of “friends”. In the past, “publication” (in movies and books) meant that everyone could see it, and the content creator had no right to know who would see it. As Patry points out, the DMCA can change that, and social media have upended the idea of making something public “for everyone” when done by amateur users – possibly because of public pressure. (On the other hand, in libel law, “publication” means passing a statement to at least one person who understands it – which has been a real problem for Facebook users sundering the “online reputations” of others.)

Generally in the "real world" book publishing and movie and music distribution world, the content owner doesn't have the right to know or identify who accesses the content. There is some evidence that this changes on the Web, where it's possible to block certain users (by "htaccess") to prevent rogue comments or certain kinds of vandalism, by IP address identifiable on server logs. In rare cases this has even been expected by service providers.

It should be noted that some level of downstream liability (even on the web) is accepted by the Supreme Court, with the 2005 decision in MGM v. Grokster. (I thought about this when seeing MGM’s resurgence as a production studio with the quick remake of “The Girl with the Dragon Tattoo”, reviewed today on my Movies blog.) This would be the case when a business (which could be equivalent to a website or operation) is found in court to be dedicated to infringement, which is a concept also explored in SOPA and Protect-IP.

Like it or not, many of these debates are political in nature, depend on the public perceptions of their constituencies, and must be followed closely. The courts cannot protect “you” on everything. And even the history of “principle” is more nuanced than people think. 2012 will be critical.

"Conservative" DC newspaper slams SOPA, saying Hollywood is looking for excuses for lack of creativity

2011-12-29T15:10:00.000-08:00

The Washington Times has weighed in on SOPA with a relatively simple editorial, “Hands off the Internet: Online piracy is a scapegoat for Hollywood’s lack of ideas”, link here.

The paper points out that many of Hollywood’s best box office results come from franchises and sequels and movies that reprocess old material. William Patry makes similar observations in the early pages of his new book “How to Fix Copyright”. Patry discusses "creativity" in the sense suggested by the editorial here. In fact, at a screenwriting seminar back in 2006, I was quite impressed with how the coaches tried to “commercialize” an idea that I pitched to give it “urgency” and stake, a transformation which would defeat the purpose of the film as I had envisioned it. I’ve noticed on imdb a preoccupation with warning people about “spoilers”, as if the only reason people go to the movies is to learn the ending. Maybe that works for something like “Clue”. Do you really care in advance what happens to the thimble in “Inception”?

It also points out that many laws exist already, and the laws against use of camcorders in theaters are enforced to “absurd extremes”. I covered (on my movies blog, Aug. 3, 2007) a story of an arrest of a young woman for taping a few seconds of “Transformers”.

It is true, however, that up to a point, movie studios and music companies have a reasonable expectation that they will be paid for re-use of their material in other commercial circumstances (such as excerpts in other commercial works or sometimes on websites). Their original business models depend on this expectation.

Back on Oct. 12, 2005, the Washington Times had run an editorial “Suffocating the First Amendment” which, in the process of criticizing the litigation regarding bloggers and campaign finance reform (resolved since then), pointed out how Internet self-publishing really works and how it could be jeopardized by a litigious environment or by vague threats of imposing downstream liability on service providers. The Times would do well to make that editorial available online again, or republish it. It certainly applies to SOPA. (As I’ve pointed out before, it resulted “indirectly” in an incident at a Fairfax County high school that I discuss here July 27, 2007. What would follow was a sudden preoccupation in the media with “online reputation” in the workplace, most of all for teachers.) The Times does appropriately criticize the prospect of government’s ability to shut down disliked websites (overseas or not – it’s already happening with ICE) “at the request of major campaign contributors”. What did happen to campaign finance reform, the existential threat to bloggers a few years ago, after all?

The Washington Times also suggests that Congress is close to passing the bill before discussing mark-up; hopefully, the delays (until March at least) and the mood in the Internet corporate community are going to make passage much more difficult than previously thought. Like a big arctic cold front, the air will get modified on its journey south.

CNN Money weighs in on SOPA's "unintended consequences"

2011-12-28T06:02:00.000-08:00

Now CNN Money (in a story by Julianne Pepitone) weighs in with a detailed analysis of SOPA (ironically, tweeted yesterday by Webroot). CNN’s main objection is “unintended consequences”. Particularly, a judge could order an entire site shut down because of the actions of only one user.

The general spin is that a vote in the House on SOPA cannot happen before March 2012, and that numerous amendments to narrow the bill are being taken seriously.

But support for the alternative “OPEN” bill is weak because of the supposed lack of real enforcement resources.

The link is here.

I’m starting to read “How to Fix Copyright”, from Oxford University Press, by Google copyright counsel William Patry. He starts out by showing that copyright, in the past, was based on business models where a few media companies run the show and create “artificial scarcity”, deciding what gets made (in movies) or gets published (in books and music). “Copyright” also made more sense in a day when owning “copies” of things “meant something” (like when I collected classical vinyl records and then CD’s). Media companies may be more interested in eliminating low-cost competition than in protecting legally legitimate “rights” in a day of “plenty”. Certainly, if SOPA could be construed as requiring service providers to prescreen all user-generated content (and I think it is a stretch to say that it does, even as an “unintended consequence”), user generated content would go away, and “newbies” would be forced to “compete” the old-fashioned way, or remain content with “real jobs” while “raising families”. That idea certainly fits into the “reactionary mind”, regarding a book by Corey Robin that I just reviewed on my Books blog.

There are even "rumors" that Hollywood wants royalties when snippets of film or music are backed up in "the cloud" (as by Carbonite, etc.) This is getting silly.

Small newspapers charge a lot for paywall; a note on my own pictures on blogs; even toys have to go to copyright school

2011-12-26T12:49:00.000-08:00

Sme smaller newspapers are going "the extra mile" with their paywalls to raise revenue. At Shaw Newspapers, a one year pass to read 1000 articles would cost $1995. The latter sounds like the cost of a full body wax. One article is $2.95. (The paper says its archive has no pictures or charts.) The corporate link shows that the company has 13 small Midwestern newspaper. By contrast, my own subscriptions to the WSJ and NYT are running about $100 and $180 a year, with Sunday print for the Times thrown in.

I thought I would take this moment to mention that on blogs with movie reviews (sometimes TV and play reviews), I always identify the sources of any pictures if there is any chance visitors could think they were shot right off the movie screen (which is illegal and prohibited in almost any theater -- See Aug. 3, 2007 on my Movies blog) or DVD image at home. No, some pictures come from Wikipedia, most of which can be used with attribution (many are in p.d.) or were taken by me with my own camera. I identify the item photographed and when taken if necessary. In many cases, I have in-person images that are similar to those that could appear in the film. These are mine. I also have some estate photos from my parents (especially my father) from other parts of the country, often in BW, especially from the 1940s ( a few as early as the 1920s and a very few from grandparents in the 19^th Century), and a number of movie reels, which I have made into DVD’s and can legally snapshot because ownership of this material is now mine by inheritance. I certainly am prepared to discuss the use of any historical footage (there is some Arlington VA in the 1940s) with other film companies.

First Picture: A music box gift for “Toys for Tots”. I checked. All the music is plays is public domain. Second: a typical "in person" photo, summer 2011. Third: from the estate: my parents in 1940.

Christmas: This Day. Also, a note: "I pay to play"

2011-12-24T21:07:00.000-08:00

Christmas Eve, I watched again the last scenes of one of my favorite films, “Inception”, and recall a line where Cillian Murphy’s character says, “my father wanted me to be my own person”, and not just an extension of him or of the family.

It’s hard to become your own person without depending on the sacrifices of those who went before you, which you can’t always see.

But it’s hard to give to others with any integrity until you’ve created your own persona, and have your own message, can execute your plans and deliver your message.

Otherwise, volunteering is just going through the motions.

That’s the thought I’m left with this Christmas Eve.

I also re-watched critical scenes in “Old Joy”, “Judas Kiss”, and “Black Swan”. They are among my recent favorites. (I did purchase DVD's for these.)

CNN is re-airing a 2006 film about the period “After Christ” and has been discussing Gnosticism. And this evening I’ve looked at one of my most important screenplays. A character like me wakes up in a bizarre interview, and begins to suspect he may have passed on, or be on another planet. In time, various friends of his appear, but at their optimal young adult ages, as if they had become angels who could fix themselves in time (somehow defeating the physics of entropy). The work of his own fiction is interleaved with his own history as he relives the most critical episodes of his life and must face what he was up to, what made him tick. He finally undergoes the rite of passage (“tribunal”) that he has always craved (where he tests his own ability to transform himself through time), and then the realizes he has one more critical mission back on Earth, as a “living soul”. Will my script hold together. Can it become another favorite film? I do want to call this film "Do Ask Do Tell".

The CNN film concludes by (with Liam Neeson) asking the question "Why Jesus?" There is irony that the Roman Empire actually caused Christianity to spread as a worldwide religion. But, the film says, we must return to the Beginning.

Welcome to Christmas Day, Hodie (Ralph Vaughn Williams).

A closing thought, regarding the recent battle of intellectual property that I have been documenting: Here is Wolfe Video's "Pay to Play" YouTube video, starting out with a star from "Judas Kiss".

The Wolfe Video "I Pay to Play" link is here. Again, have a wonderful Christmas. P.S.: "Just win it!".

GoDaddy, under boycott, drops support of SOPA; but why had this major ISP supported it at all? What about TOS indemnification clauses?

2011-12-23T14:15:00.000-08:00

I was a little surprised today by an EFF tweet that GoDaddy no longer supports SOPA. What surprised me was that a major ISP – any ISP -- like GoDaddy has supported it at all. Tech Crunch has brief story (website url link) on GoDaddy’s abrupt change in position.

Timothy B. Lee had written an article for Ars Technica on a boycott by many of GoDaddy’s customers, who were moving over to other ISP’s, link here.

GoDaddy had submitted a brief supporting the bill (link). It would be instructive to compare its arguments to those made by Google

While GoDaddy’s argument, admittedly a bit stern (it brags about the pre-emptive monitoring it does, which is unusual for ISP’s, which typically say they don’t monitor until illegal activities are brought their attention), may sound somewhat persuasive to some, it’s clear that SOPA could leave “ordinary” webmasters open to trollers and frivolous claims, and could leave ISP’s open to unpredictable claims of downstream liability. A lot of this is the “school detention problem”. It’s a little surprising that GoDaddy isn’t more concerned about this.

One issue that gets overlooked is that some ISP's, as part of their TOS agreements, claim that users or customers must indemnify them against any losses from potential downstream liability. I don't know how common these are today or whether GoDaddy has such a clause in its AUP's (sounds likely). They are similar to clauses in the book publishing business that authors indemnify publishers against losses (even if they're not commonly invoked). But possibly ISP's could look to these as a way to shield themselves from SOPA-related liabilitis.

House Judiciary Committee says it postponed markup again; both Heritage and CATO write criticisms of COPA

2011-12-21T17:14:00.000-08:00

The conservative Heritage Foundation has a well-stated and rather temperate argument (by James Gatusso) about the possible unintended consequences of SOPA, as laid out at this link.

The heart of Heritage’s arguments deal with interference with the domain name resolution system, and probably hindering a newer security system for resolving Internet addresses, DNNSEC. The need for this arose out of a crisis that became apparent during the summer of 2008, resulting in an emergency industry summit at Microsoft (see my “Personal Identity Security” blog Aug. 9, 2008).

The Heritage Foundation urges consideration of Sen. Wyden’s proposal involving the International Trade Commission’s enforcement authority, even though conservative think tanks typically oppose depending on international bodies.

Julian Sanchez has a recent critical article at the Cato Institute site, “SOPA: an Architecture for Censorship”, link here. One of his main arguments is that it is easy for government to build onto SOPA for all other kinds of offenses (such as those related to Wikileaks). He also says that almost any ISP or search engine will have to implement a step in its process preventing resolution to anything on a blacklist of banned sites.

The House Judiciary Committee reports this evening that the markup rescheduled for today has been postponed again (look here )

Supreme Court looks at reversing cross-ownership bans on newspapers and broadcasters, helping newspapers "compete"

2011-12-20T19:58:00.000-08:00

On Monday, Dec. 19, L. Gordon Crovitz offered a perspective on litigation filed by Media General in Richmond VA asking the Supreme Court to overturn outmoded rules forbidding cross ownership between newspapers and broadcasters. The link for the p. A17 story (paywall) is here.

The Internet has obviously turned the tables on the ability of powerful newspapers to dominate the local media a half century ago, and the 1996 Telecommunications Act would seem to allow the FCC to loosen the rules (just as it has other provisions like Section 230). But the FCC has been unwilling to use its prerogative.

This story is another piece in the story of newspapers fighting their decline, which we know led some small papers to fall for copyright trolls.

SOPA would muddy the waters for the future of both social media and web self-publishing

2011-12-18T19:47:00.000-08:00

Once again, I offer a perspective on how SOPA, at least in the worst case scenarios, could affect what I do – and take anticipate and take on some existential questions. This is always hard to do in a blog posting – it’s an ongoing discussion.

One important thing my blogs accomplish is keeping certain critical issues in front of policy makers. I don’t go away, so they have to be addressed. I do think that my being “out there” on the Web for 14 years with no supervision and hammering away the way I did was a factor in getting “don’t ask don’t tell” repealed. This might not have been achieved without underlings like me “keeping ‘em honest.” I don’t go away. A more recent example might be Newt Gingrich’s discussion of the EMP issue in the context of the GOP debates. It’s not well known, but it’s something policymakers need to pay attention to. It could be bloggers like me keep them talking about it.

And we’ve said that it is, by and large, the insulation of service providers from downstream liability that makes it possible for people like me to do what I do. And the anesthesia, however, also makes it harder to stop other abuses on the web, ranging from cyberbullying to piracy. There is indeed a “balance”.

In recent years, I’ve been approached repeatedly to join other people’s causes and hucksterize for them, and give up my own independence. For me that is anathema.

I’m also, since I have made myself a minor public figure, found myself having to answer, why don’t I enjoy more direct involvement “helping other people” with direct personal involvement. I’ve said that part of the reason has to do with the humiliation of conventional social combat (related eventually to family continuation and conventional gender roles) and the lack of my own “ownership stake” in social relations in a way I can feel proud of. A lot of it has to do with “upward affiliation”.

Major media organizations make much more of volunteer opportunities today than they did a number of years ago. The recent programs last week on CNN and NBC with service awards for selected charities demonstrate this point. There is somewhat of a “sea change” in the idea of service. It used to be that a lot of us were lost in our own worlds – and overwhelmed with the demands for overtime at work and issues with family – and paid less attention to needs outside our own lives. And when we heard about “need”, we could rationalize it away. After all, it seemed (at least domestically), a lot of people in “need” had made “wrong choices” like trying to get something for nothing (subprime mortgages) or having kids before they were ready to. It is not as credible to say or believe that today as it had been some years ago. The rhetoric about “personal responsibility” can mask a general contempt for people merely less fortunate and genuinely expecting a community that they live in to respond to them.

What I see is somewhat of a pendulum swing, back from the extremes of amateurism in public self-expression, and more emphasis on service, meeting real needs – and also more emphasis on a structure that controls what needs get expressed publicly.

The attempts in Congress to mollify the media companies (and their lobbyists) over piracy concerns, can easily mutate into a plan to eliminate “amateurish” competition and re-establish a hierarchy that can control what gets out into the public space. This can even spill over into the charity areas, where the media companies can display those efforts or organizations which they say are accomplishing the most, and then challenge “people like me” with, “why do you need your own voice any more. We have identified so many needs you could fill.”

The end result of all of the calibration of downstream liability issues on the Internet could be that we wind up with fewer vital companies that offer much less in the way of free expression than in the past, and provide much more structured ways in which people have to “compete” for space. People could be expected to integrate themselves socially and establish networks based on more limited activity before they are “listened to”, by the way “friends’ circles” work out. Would this be harder specifically on less savvy older people? Maybe no. People with fewer "friends" reachable this way might be viewed as having suspect motives or purposes (as to what makes them "tick"). We’re already seeing examples where employers look at candidates to see how well they can attract desirable followings in social media by specific kinds of social "performance" (although this is obviously easier for people who can establish themselves publicly in the arts in the old fashioned way). Someone like me could be asked, “why do you need your own book or movie review page when Amazon/imdb already offer a controlled framework”? Owned sites (or individual blogs) could be held to standards of generating earnings (like real companies) or other metrics of website performance (like bounce rate).

That hasn’t happened because right now the ad-driven business models work when there is little downstream liability concern, or when there are reasonably reliable and straightforward ways (DMCA safe harbor on limited content items) to control it. But this could all be changed relatively quickly.

This is not the environment I want to face.

EFF spends a week of "Action Against SOPA"; Mark-up resumes Dec. 21

2011-12-16T19:46:00.000-08:00

Electronic Frontier Foundation has a detailed account of “Wrapping Up a Week of Action Against SOPA”, by Parker Higgins, link here. In a tweet today, EFF said that the mark-up process will resume Wed. Dec. 21.

It’s quite disturbing that the Judiciary Committee was willing to try to railroad the bill the rough, and that the “media establishment” and its lobbying element is willing to push through a bill it knows is badly flawed, could not just bully off some of the smaller competition but could also hurt its own business (by hurting its customers) in the long run. It’s interesting that at the same time, elements of the film establishment, as I noted yesterday, are pushing for liberalization of certain elements of the DMCA, which could be wiped away by SOPA anyway.

There is another site, called “Stop American Censorship”, dedicated to fight SOPA and its likenesses, link here.

The video above doesn’t quite correctly differentiate between the House and Senate (PIPA) bills, but that’s of little consequence.

In mid November, Nate Anderson had published an analysis of SOPA on Ars Technica, maintaining that the law would let private interests (“market based”) shut down websites without legal intervention, link here. That characterization may not be completely true. But it is certainly true that established media owners could troll and go against amateurs without deep pockets on made-up grounds not really caused by piracy; look at what happened with Righthaven.

The circus continues. Stay tuned.

SOPA mark-up held up by snarky tweet; Documentary film group ponders both sides of Fair Use question, seeks DMCA "big rip" exceptions

2011-12-15T20:01:00.000-08:00

The expected mark-up of SOPA did not happen today in the House Judiciary committee because of the distraction of a snarky tweet. Here’s the CBS story by Declan McCullagh . (Here’s the link to the tweet ). In the end, there weren’t any amendments offered t narrow the language either, so the tweet might have distracted progress in making a bill like this (which Google says it actually wants) workable and not a threat to “average bloggers” on the web.

In any case, there’s no encouraging evidence yet that the House Judiciary Committee is interested in the moderate alternative, the so called “Open Act” yet.

Declan McCullagh had an FAQ Nov. 21 which highlighted the difference between SOPA and Protect-IP: the older Senate PIP version (whatever its “great expectations”) doesn’t deal with companies that actually provide connectivity. Here was his page (“How SOPA would affect you?).

Today, at the West End Theater in Washington DC, I picked up what looked like a promotional copy of “Documentary.org” winter issue (was I supposed to pay for it? – I didn’t see a price on it until I got home). On page 12, there is an article by Cynthia Close, “Creators vs. Consumers: Reclaiming the Conversation about Copyright”. It’s a review of the book by Patricia Auferheide and Peter Jaszi, “Reclaiming Fair Use: How to Put Balance Back in Copyright”. (See my Book Reviews blog, Aug. 25, 2011; just follow the links on Blogger Profile.) Close is executive director of Documentary Educational Resources and her review doesn’t seem to be available online yet, so I have to base these comments from the print version. (That’s OK.) She characterizes herself as a “gatekeeper” responsible for the ability of her clients to monetize their work. So she says, “I confess some ambivalence at giving Fair Use a platform in this review” and says later “I am loath to promote the idea that it is okay ‘to use copyrighted material without permission or payment. ‘ Indeed, it’s not; you can’t simply apply Fair Use every time you want to use a clip. You need an attorney to scrutinize the usage and advise you yes and no" (emphasis mine).

A little context is in order here. It’s true that commercially released films are fastidious in giving credits and getting licenses for even the most incidental clips from other films (as you see in rolling credits at the ends of movies) and for any music. It might be Fair Use not to do so sometimes, but commercial distributors probably won’t buy films that don’t honor this expectation and major festivals probably won’t air them. (I have seen films that violated this rule in smaller festivals.) Books are a different matter. There are companies that secure permissions for authors, but really my experience is that it is OK to do brief quotes without permission. Blogs – we’ve seen this fought out with Righthaven. But generally the courts are coming around to the idea that even full (if relatively short) news articles may often be reproduced in informal blogs and forums under Fair Use.

It’s true that indie filmmakers with investor money are normally expected to purchase script clearances and rights through the usual industry machinations. But if bloggers or YouTube video producers had to do this, it would shut down UGC (“user generated content”) on the Web as we’ve gotten to know if in the past 15 years. And imagine what would happen if service providers were held responsible for making sure that web publishers did so.

Even more potentially sinister is suggesting that filmmakers or content generators have to pay their tribute to lawyers first. If this were common practice for the Web as a whole, again, UGC would disappear. So what we have here could grow to an attack on amateurism.

Close finally concludes “While the promulgation of the concept of Fair Use over the past several years has helped made the production of, say, history and essay documentaries much more cost-effective, it’s a two-way street. The gatekeepers lose potential licensing revenue—and so, eventually, do filmmakers.”

There’s something disingenuous here: if something is legal (that is, application of Fair Use), should we be end-rounding it so that established interests retain control of what makes revenue – and in the future of what gets published or gets filmed? Shutting out Fair Use would be shutting out low-cost competition.

In fairness to Documentary.org (and with a bit of irony), I note that the group has been fighting for a loosening of the DMCA provisions to allow documentary filmmakers more leeway in “ripping” DVD’s (now BluRay) and other media for getting clips upon which they can make critical comments in their documentary films (in a manner similar to how bloggers comment on news quotes – an issue even in the Righthaven cases). Here is a typical link on their efforts.

New site tracks P2P downloads by IP address, anyone can check from his home computer ("What you have downloaded")

2011-12-13T05:32:00.000-08:00

There exists now a website that can tell you what you have downloaded from P2P environments.

Brian Krebs, formerly the Internet security writer for the Washington Post, has a story on 'Who knows “Whatyouhavedownloaded.com”?', link here.

I declined to give the direct link because of a red warning from MyWOT, report here.

The site picks up your IP address (although it can have trouble with dynamic IP’s) and tells you what has been downloaded (possibly illegally) from the address. Imagine how this can fall into the hands of the copyright trolls.

The site seems like a proof-of-concept, designed possibly by Russian-born Americans such as Suren Ter-Saakov.

One founder reported getting a message asking database records to be removed out of fear his parents would see it!

Federal judge in Oregon rules that "bloggers" are not (necessarily) "journalists"; NY Times hosts debate

2011-12-12T12:07:00.000-08:00

The New York Times has a debate forum today “Are All Bloggers Journalists?”, with main link here (paywall subscription required, and your browser has to allow scripts).

The discussion centers on a recent ruling in which a Montana blogger, Crystal Cox, was told that she could not claim protections offered to journalists under Oregon state shield laws, because she was not affiliated with a component of the established media (“newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system”).

For Crystal this is serious because she if fighting a defamation lawsuit after comments she made about the founder of a particular investment group. Complicating her case was her unwillingness to disclose the source of information behind comments she made, invoking the possibility of using the shield law.

Jeff Barnard has an original Associated Press story (Dec. 7, 2011) about her case, here.

Another blogger (Philip DeFranco) comments on the case, and mentions the insurance issue toward the end.

The New York Times debaters include Kelli Sager, Stuart Benjamin, Kyu HoYuom, and Ellyn Angelotti. There is some consensus that the availability of shield laws ought to be based on circumstances with various tests, such as the degree of professionalism with which the blogger does the work.

Angelotti has a major commentary at the Poynter Institute site (connected to the Media Bloggers Association, at least in the past), "Debate about Crystal Cox blogging case misses a key legal point", here. She points out why even with the Shield, the blogger might be liable for defamation.

It's important to remember that the Cox case is about her own liability, not about downstream liability and Section 230, as I have discussed it before. But imagine the environment we would have if her hosting provider could be held liable. On the other hand, in a traditional news organization, the entire organization could be held liable sometimes, but the reporter might be shielded.

In my own "practice", I have not expected absolute shield. On a few occasions, I have contacted law enforcement about disturbing materials made available to me, and not published them.

Scribd has a copy of the opinion (PDF) here.

Arkansas capital case raises more questions about juror mobile phone, Internet access and use

2011-12-11T06:56:00.000-08:00

The Arkansas state Supreme Court has overturned a death penalty for a man because a juror made innocuous tweets from the jury box and later the deliberation room during the trial. The court also said it was time to consider juror mobile phone use during the trial. A Times Record story is here. Newsoxy has a story by Susan Harris here.

The jurors had been told properly not to post on the Internet material about the trial. These postings were about conditions and bad coffee, not about the case.

Nevertheless, the case raises serious questions. Would a mobile phone and Internet ban apply after the person goes home? It certainly would apply in the case of jury sequestration. But what about other cases? A death penalty case is grave enough to warrant more restrictions on jurors, it seems.

When I lived in Texas, I was called for jury duty four times, since they have a one-day, one-trial system. I actually was on one jury that lasted three days, and on another (where there was actually a “boorish” incident, as I mentioned yesterday), the case was settled before the jury met.

I haven’t gotten summoned in any other location: New York, New Jersey, Minnesota, or Virginia. I haven’t gotten invited to a federal jury or grand jury either.

The danger for me would be a complete Internet takedown for months; the blogs might not survive a long forced hiatus. But a long trial federal trial on a critical corruption or 9-11 case could happen.

Jury duty, while an unchosen obligation, can involve more "sacrifice" than people realize.

The high road and low road come back together

2011-12-10T15:46:00.000-08:00

I just wanted to provide another “level” to the roadmap of the video I plan to make, “Do Ask Do Tell”.

At certain times in my life, particularly during my coming of age (pre-teen through college years) and then recently (with my eldercare experience), others have demanded that I “pay my dues” through engagement in activities well outside of the scope at what I was good at, and then have “questioned” my intentions in building my personal relationships. This incorporates the “gay” angle but also a lot more.

I think I have a right to ask, “what did ‘they’ want?” And I think that yesterday’s post – about demanding (with some "moral rationalizations") subordination to the meeting the needs of others in a social group led by others , offers important clues. I did order the book (Corey Robin) and will be reviewing it in due course.

But there are still two pressing, complementary but separate questions. One: what moral code should guide the lives of those of us who are different – in terms of honoring pre-defined obligations to others, through family (those not mediated much by the economy and not defined by choice, such as “choosing” to have children, which of course begets responsibility)? The other is, if we have a handle on “what other people want”, how valid is “what they want” in moral terms – let’s say, in its impact on our ability to sustain our civilization? Call all this "social contract". And, to be candid, there are those who say that “society” will have to play more attention again to honoring common goals and social structures (even for those who don’t “choose” to extend them) if it is to sustain itself. And we feel apprehensive about where that could take us.

Most of us – especially those who are “different” – remember occasions from our lives where we have been “called in” and ambushed by something that had been going on behind our backs. I’ve had my share of that. In many of these incidents (William and Mary, for example), I can easily point to “failures” of others and deceptiveness or dishonesty on their parts. But there is certainly a list of incidents, not all of them leading to immediate consequences, where my own behavior was certainly boorish (or rude). And there were a few workplace incidents (a few in the 70s and one in the early 90s) where lack of maturity showed: I was not paying attention to directions or to what was changing around me, and as a result was careless in the way I handled or implemented something, or set up its support. No actual disasters every happened, but they could have, and I had to deal with the distraction of vigilance and anxiety which held me back, perhaps. We’ll never know (without traveling to an alternate universe) what might have been, but I think these problems contributed to my being unable to continue my “conventional” I.T. career after the “Big Layoff” ten years ago this month, and they may have made the interpersonal issues of the past few years more sensitive (that is, helped bring them on). They call it “karma”.

In more recent years, I’ve had to pay more attention to the possibility of having to deal with harm or loss caused by others, rather than myself. This takes on moral dimensions in a couple of ways. “Loss is still loss” (a tautology) result of fault. But we also live in a community where there are really unsettling questions about the legitimacy of the way many of us acquire and horde some wealth and insulate ourselves from the experiences of others (or from empathy). Regardless of the suspect nature of the demand from those in power that individuals limit their own public “agency” (last post), there is still a deeper question about whether we can simply remain at “arms length” from some people forever.

Corey Robin's view of the Reactionary Mind stimulates debate even in the IP area

2011-12-09T11:23:00.000-08:00

Today, AlterNet offered an email with a link to an excerpt from a book by Corey Robin, “The Reactionary Mind: Conservatism from Edmund Burke to Sarah Palin” (2011, Oxford University Press), with an HTML title caption “Understanding the conservative mind; why reactionaries from Edmund Burke to Sarah Palin have fought real liberty”. When I checked this afternoon, the content had disappeared; only the ads were left, and comments. I don’t know if this was a copyright problem or what. But I can comment on what I remember from reading through the excerpt

The excerpt mentioned the conventional wisdom that conservatives want liberty and liberals want equality. Both are rather meaningless in the total abstract. But then it mentioned the idea of “agency”. The reactionary mind does not want someone socially or politically subordinate to become his or her own moral agent (I had suggested the opposite early in the Introduction of m first “Do Ask Do Tell” book (1997)

In fact, I’ll quote my own paragraph here (and, hey, I don't even need to claim "Fair Use"):

“My central question on personal values is this: do we believe in the principle that every adult person is totally responsible for himself or herself? This objectivistic notion would limit the responsibilities of government to consequentialism. Individuals, through their own conduct and performance, would become their own moral agents. An individual will, in principle, be held accountable for her actions regardless of biological or circumstantial parentage. When may an individual rightfully set her own personal priorities, and when should she consider the recognized and established interests of family and larger community first?”

To the reactionary, an established social order and hierarchy is important to sustaining a civilization and culture. He or she imagines that those farther down in the food chain owe their lives and protection to those at the top, and do not have a right to speak up and be heard until they can take the responsibilities of those on top.

In a world of pure meritocracy, those who are most capable would both wield power over and have responsibility for those who had accomplished less or who could take less responsibility for others. Getting married and having successful children would be a major power and responsibility (both) for those with station in life. In our culture, meritocracy tends to be measured by money; but in animal societies (or maybe with people on other planets), it may not be.

But, of course, as the Left correctly points out, people don’t start out in the same place in line (or with the equalizing place on the jogging track according to lane). But the Right sometimes counters with the idea that everyone “pays his dues” (by proving he or she is good enough at basic things related to gender roles -- for men, going through group rites of passage and often the risks of military service). Furthermore, the Right promotes the idea that strict sexual morality (no experience of sexuality outside of marriage and without the openness to procreation, a Vatican idea) would limit the tendency of those in power to abuse it. In practice, history shows things never work out this way.

So the Left tends to propose political and social structures “for the People”, but pretty soon the Left builds its own power structure that (eventually) becomes as oppressive as anything on the Right. That is, Stalin (and Chairman Mao, and Pol Pot) were as bad as Hitler. Totalitarian structures, whether from the far Right or far Left, always try to bind and indenture the individual who doesn’t win the battle for the top (or may not be lucky enough to even compete for it). Sometimes the Far Left makes a quick switch to the Far Right (look at China – “The People’s Republic of Capitalism” -- and Russia). Hence, progressive democracy and “classical liberalism” gets pulled toward libertarianism. There is still a lingering risk that the individual, left to his own expressive aims and perhaps without a good ability to bond to other people, could develop purposes, in fantasy, that defeat the purposes of liberty.

In my own case, I was born into economic circumstances that were certainly favorable enough, but I could not “compete” properly according to my biological gender (male) to perform property (protect women and children). Hence, I came to find most of the conventional social mores and indulgences expected of me (regardless of any choices I had made, note) to involve subservience and potential humiliation. Conventional dating and even heterosexual overture became, in my mind, a proxy for submission (Warren Farrell’s argument in his 1993 book “The Myth of Male Power”). On the other hand, physical submission to a male whom I really admired became desired – and this gets into the “polarities” (Rosenfels) that I have talked about before.

None of this should be lost on the debate going on today about the “open Internet” and the problems with controlling piracy and abuses of reputation, because of downstream liability immunity, as covered in recent posts here. In the mind of the Reactionary, someone like me doesn’t have the “privilege of being listened to” himself because he couldn’t take on (through successful competition) enough responsibility for others. So, it’s easy to think that protecting jobs for those with “families” with any means necessary must be the only goal (and this involves a “reactionary” attitude from the Left as well as the Right). Keep all this in mind in tracking “SOPA and Protect/IP” v. “Keep the Web Open”.

Online reputation and piracy concerns both threaten to bring back downstream liability; what happened to Media Bloggers Association?

2011-12-08T11:28:00.000-08:00

Let me reiterate how essential is the concept of immunity from (most) downstream liability for Internet service providers, publishing services and social networking site hosts for content posted by users.

We could not have the Web that we know today, with the ability of people to post without the approval of third parties, without the immunity.

The immunities reside in two separate areas: Section 230 (mainly for libel), and the DMCA Safe Harbor, which protects service providers if they follow certain procedures upon being notified of specific complaints from copyright holders. The Safe Harbor does not protect the original content poster, and the party (as we know from Righthaven) doesn’t always have to be forewarned.

The freedom to post has become customary and is taken for granted by a lot of web users, even the media. This is not a good thing, to presume that it couldn’t be gutted.

Remember, the open Internet creates an environment in which cyberbullying is harder to stop, and in which it is difficult to fix wrongfully tarnished online reputations. On the other hand, many users, with the proper understanding of things and generally prudent course in life, never run into these issues.

And the music and movie/TV industries, and sometimes newspapers, are implying that the climate encourages plagiarism and outright piracy, causing loss of income and jobs in these industries. These businesses have heavy lobbying resources and could cause measures to be put in place that would gut the downstream liability protections. Generally these industries say that current legal processes are not enough to protect them, and that more comprehensive measures must be available to shut down infringing sites. They really don’t care if these measures make it impossible for the Web to function as it has in the past. They can use the argument of “real jobs supporting real families”. Unions are not the friends of the Web here.

Of course, this brings us to SOPA and Protect/IP (again). The basic problem is that an entire site can become disconnected or disabled (in various ways) by law because of the actions of a minority of users, resulting in indirect pressure to monitor all users. The laws seem to circumvent the DMCA. The “technically feasible means” provisions do seem to follow only specific notices, which could be challenged.

There will be those who say that “self-publication” or self-broadcast is not a fundamental right subsumed by the rest of the First Amendment. That’s because until relatively recent times (the opening of the Web in the 90s and the reduction in costs of other forms of publishing and video distribution) it really wasn’t possible, so it wasn’t a factor in how we perceived free speech. Even I was fooled by this in the early days: when I wrote my first “Do Ask Do Tell” book (1997), I expected sales and buzz by word-of-mouth; I had no idea how critical the Internet and search engines would become (and how quickly). Before COPA was a law, I had once thought that adult verification on the web would be possible, and had no concept, until confronted by a statute, what kind of a position it put web content creators in. Likewise, it’s hard to tell if Congress has much of a sense of the position SOPA can put service providers in. Even the major media outlets have not covered it very much, or very well – as I found out Monday when I talked to a local television station reporter at an Occupy DC protest. She really didn’t have a clue until I took the time to explain it and she did listen.

Unfortunately, we could still face a situation where lawmakers look at self-publication as expendable, if something has to be “sacrificed” to save jobs. That is what I fear right now.

The role of social networking, where posts are likely to be aimed at a whitelisted set of visitors, as opposed to broadcast and "public mode" self-posting, does complicate the question.

Maybe the "Keep the Web Open" proposal (yesterday) comes to the rescue. Otherwise, welcome to the world of “I am my brother’s keeper”.

BY THE WAY: What has happened to the Media Bloggers Association site? In the past couple of weeks, whenever I go to it, it gives a “forbidden”. The Citizen’s Media Law Project, which it draws from, seems alive and well. I had noticed that the MBA site wasn’t getting updated very much since 2008, when it announced the availability of blogger liability insurance, and I don’t have any idea how that has fared. Does anyone know?

Also, let me share (why I can?) another YouTube video I took of the DC Protests ("Take Back the Capitol") yesterday. The protests specifically went after the power of lobbyists (to throw others under the bus). Some people saw this as worth being arrested for. Maybe I'm too cowardly to face jail myself. Here goes.

"Creative America" airs big TV ads to promote SOPA/Protect-IP; opponents propose alternative bill

2011-12-07T08:12:00.000-08:00

Yesterday, a group called “Creative America”, apparently affiliated with AFTRA, the American Federation of Television and Radio Artists (link), began airing, on ABC affiliates at least, a gaudy lobbying ad in support of SOPA and Protect-IP, rather striking in emotional appeal, emphasizing the foreign sites and content theft from overseas and the loss of American jobs and creativity – almost with a patriotic touch. These ads always seem one-sided and manipulative, and tend to suggest support for knee-jerk reactions to big policy problems can be bought from Congress.

I tracked this down with search engines and found a twelve minute film “Stolen Jobs: Content Theft: The Big Picture” which I reviewed this morning on my movies blog and gave more detailed comments on its side of the argument. It’s important that the film seems to have been made before SOPA was introduced. The film is somewhat more balanced and less emotional than the television ad.

I’m always alarmed when a difficult policy question gets decided by who has the most money to spend on polarizing lobbying efforts and big media ads. There is a tendency for others to get thrown under the bus as a result – a point I covered (at least indirectly) in my blog post yesterday. Tessa Muggeridge of the Sunlight Foundation covers the role of big media lobbying in the article “Legacy media bankrolling the campaigns of SOPA sponsors”, link here. Yup – politicians might not get re-elected unless they throw the amateurs off the web to protect union jobs in Tinseltown – that’s how it comes across.

Richard Verrier and Jim Puzzanghera have a “mobile” article on the Los Angeles Times about the current state of SOPA, Dec. 5, “Piracy Legislation pits Hollywood Against Silicon Valley”, here. The writers point out that a recent indie film comedy “Balls to the Wall” got pirated as soon as released in Europe, jeopardizing US distribution.

Jen Novotny, of the Stony Brook Press, writes, in a article “Will SOPA Help or Hurt?” here, and reports on a study by the Business Software Alliance (see its anti-piracy page here) and IDC that eliminating piracy could add $52 billion to the GDP by 2013, but that would require (given the ambiguity of detecting infringement) service providers and webhosts to be held responsible for what users post, knocking newbies off the web. (Again, I’ve explained some of this as the “Middle School Detention Problem”, Nov. 25)

The Indiana Statesman published a Jonathan Swift-style spoof on the Destruction of the Internet here.

But Adweek, in a story by Katy Bachman, reports “Opponents to Digital Piracy Bills Float Alternative: Would Rely on International Trade Commission”, here. Maybe the is the first step in the right direction. This appears to be the same as the OPEN Act, or the Online Enforcement and Protection of Digital Trade Act, outlined on a site called "Keep the Web Open", link here. More details will surely be forthcoming.

Self-publishing, self-concept: being yourself while "living in a community"

2011-12-06T12:24:00.000-08:00

I’ve hinted that I am building a project to make a video about sustainability, and how our experiences of both individualism and socialization could affect the future of our civilization.

There are some trains of thought, linked observations, almost as if logged in an organic chemistry lab, that support some conclusions about what we face. I’ll go through a couple of them today.

We’ve heard a lot recently about SOPA and Protect-IP, and the existential threat these bills could pose for continuing the opportunities for self-expression on the Web, including self-publication of works. That’s largely because these bills, by creating new contingent downstream liabilities to Internet service providers for user activities, could force them (at least indirectly, through “fear”) into prescreening all amateur content, effectively preventing most of it from being posted.

The overall “justification” for this change is to protect jobs in media, in an economic and political climate particularly sensitive to unemployment and economic hardship for “real” families. I think one can argue that these bills won’t really protect jobs, and they might prevent new ones from even being created. But there is a natural tendency in public policy toward turf protection, to going out on a limb to protect one’s own, even when the arguments that such policy choices will really work are unconvincing.

We then get into a discussion of the First Amendment, protecting free speech by “newbies” and “amateurs”. But the First Amendment really does more to protect “organized” or “group” speech (through the established press, or church, or through petition and assembly) than the on-air presence of personal soap boxes.

Self-distribution may not necessarily enjoy the same level of protection that the content of already published speech does – leading to a kind of catch-22. But ultimately, it also puts us back to Internet regulation, particularly in the downstream liability areas (as to either copyright or libel concerns) as a public policy choice, not just a constitutional issue. I have to think about the real possibility that my "modus operandi" on the Web could be changed, by external coercion. There are things I could "do" (another future posting), but I would face real "existential" questions about what makes me tick and what I am all about.

There are those who say, one should not voice public opinions until one has a personal stake in and responsibility for other people. One should be “in the game”. One should be employed protecting the interests of some specific people or group, and share empathy with them. Over the past years, I was often approached with schemes that attempted to get me to do this. To me, all of these ideas sounded like so much hucksterism. Yet, in times past, business was often conducted by sales persons and middlemen, and families were raised and supported by them. In more recent times, “sales” has not had such a good reputation in our culture, but as a scheme for people who are less “smart” (and unable to innovate and invent “content” on their own) to make a living off of the work of others. It’s probably true that such a belief system concurs with a tendency for us to outsource much of our manufacturing and inventiveness overseas. It becomes self-fulfilling, and for someone like me creates a bit of a moral dilemma.

An inclination to work in areas that provide financial planning or other counseling assistance to people goes along with having one’s own relationships and family. I have pretty much lived my life standing alone, as a topological singleton. Why? Because, in part, I was not very “competitive” in the conventional “heterosexual world” early in life, and found it humiliating. In more recent times, I’ve faced coercive situations where I am expected to be “close” to someone and be responsible for them, when I did not create the situation and did not make the conventional choices that are usually necessary to have one’s own family – and personal domain. (Oh, yes, I can cast this discussion in terms of the “polarities”.)

This leads me to a whole “another” trunk of thought. Think back to all my old maxims about “absolute personal responsibility”, libertarian or Cato (or even Southpark) style. The adult world tends to measure personal success and personal “worth” in terms of money, as a common denominator – until Suze Orman tells us we don’t need to (after one of her smackdowns). True, there are much broader ways we look at self-concept. All teenagers learn this – in high school and college, success is more measured in terms of grades, performance in sports, social popularity, and a mix of other things. And the stake in these non-monetary measures is quite high for people not yet on their own – yet their experience of life as it unfolds for them is still very eventful and rich. I remember its being this way! (And I grew up in a world with a military draft and deferments – when the stakes for grades were really life-threatening.) We also learn about another intangible – call it “fairness”, although that word is misleading. (Donald Trump is always saying “life’s not fair” and “losing s__”, but we have to take care of everybody anyway.) We don’t start out in the same place in line (I’ve gotten my earful share of leftist emails and blogger comments insisting on that) and we often live off the unseen sacrifices of others – both inside family, and outside (what the Bible calls “neighbors”). So a self-concept seems to demand well-roundedness, an ability to do many of the tasks a whole culture depends on. I was brought up with that idea, and because it tended to be implemented in a gender-specific way (it was my generic responsibility as a male to be able to protect females who would bear the risks of childbirth in a way I never would, for example).

I’ve loosely called this latter area “paying your dues” (and sometimes that means “paying it forward”). Yup, a properly self-actualized person can both pay his bills and pay his dues. But there’s even more to this. It’s nebulous. I’ve heard it called “living in a community”. It seems to be what parents are supposed to impart to their kids, as both a power and a responsibility – and it’s supposed to make a marriage remain exciting to the couple as they grow older and face travails together (as in their vows). Like it or not, marriage socializes other people outside the marriage-- with some measure of anti-libertarian coercion. (For one thing, it pressures the unmarried to be more open to whom they will feel "attracted to" -- call it "aesthetic realism". It also demands preferential affection for other family members, even from the childless and unmarried.) Isn’t that why gay marriage blew up as such a fight the way it did? Of course, this view of marriage would encourage covenants and forbid the hesitant pre-nups. It also challenges the libertarian idea, associated with personal sovereignty, that a choice to marry and have children is only your own business.

We have, indeed, in the past four decades or so, become a culture of individuals -- being your own self and delivering your own content (hint – the Internet, up to now, has helped a lot, but that’s threatened) is a prerequisite to a satisfying adult “relationship” between two relatively young people at the top of their game. But it may not be such a prerequisite for “marriage”. Hyperindividualism uses resources inefficiently. I thought about this recently when I rented a car in Texas and drove hundreds of miles alone to cover the territory of my long past. Oh, it wouldn’t be so environmentally abusive if we had all-electric cars with 400-mile ranges and the ability to support them. Then I thought about what it takes to support my self-publishing: advertising income for others (not me), an environment that lets people bully where it is genuinely hard to prevent or stop, an omnipresent (or omnipotent) wireless and power technology that some people say is dangerous (through “radiation”) to the health of the vulnerable, and, relevant to SOPA, an environment where copying is prevalent, and it’s hard to say where it helps spread knowledge and where it really destroys jobs.

Someone like me is darned lucky that the culture went the way it did in the past few decades.

Dental patient files class action suit over "gag orders"; Dentist had tried to invoke "copyright"; Medical Justice retreats on gag issue

2011-12-02T06:07:00.000-08:00

Ars Technica, in a detailed story (in the "Law & Disorder" column) by Timothy B. Lee, reports (Dec. 1) that a dental patient has filed a class action suit (as part of a group of patients) against a Dr. Stacy Makhnevich in New York over the dentist’s trying to enforce a “gag order” over emergency treatment in New York. The dentist tried to enforce a “Mutual Agreement to Maintain Privacy” by ordering him to take down a web posting criticizing his billing practices, and tried to charge the patient an extra $100 a day that the complaint was not taken down. Apparently there was also a problem with the dentist’s followup with the insurance company.

The dentist had apparently tried to claim copyright ownership of the reviews also, in the agreement. This sounds a bit like “copyright troll” Righthaven’s claim of pseudo-ownership of its clients’ materials, an arrangement which federal courts have recently been saying may not confer standing to enforce under copyright law. The dentist had insisted “all your reviews belong to us”.

Medical Justice has said that it is going to retire these gag order agreements, apparently in use since 2007. Medical Justice, however, maintains that in principle sometimes such agreements in some form are just and necessary to protect medical professionals from libel.

The link for the story is here. I met the author of the story, then a student at the University of Minnesota, while living in Minneapolis myself in 1998, shortly after publication of my own book, through the Libertarian Party of Minnesota.

Also, as for the term “copyright troll” (e.g., Righthaven, US Copyright Group, and others) – I snicker as I contemplate the (Magnolia Pictures) film “Troll Hunter” that reviewed Nov. 28 on my movies blog (q.v.).

I have not personally been asked to sign a gag order by any medical or dental provider yet, either for myself or my now late mother. But I had been watching for it.

Movie piracy in the physical world: see something, don't say anything

2011-12-01T15:07:00.000-08:00

I watched a sale of pirated movies on a subway today (the A train, northbound, in NYC, north of West 4th St station), stumbling onto the witness of it by happenstance. A man had a bag of them, and took them out and showed samples from them to a low-income woman on a small laptop. She actually bought a few of them for about $3 a piece. I happened to have a seat right next to the activity.

The movies were all big budget Hollywood items (like "Happy Feet 2"); none were the indie films that require an "intellect".

What if I were one of the artists "pirated"? In my situation, if a low-income person sees my stuff for $2, I really don't care; that's one more person who knows my work. I doubt that the big stars in Hollywood care, either.

Who does care are the bean counters with fiduciary responsibility to shareholders for publicly traded media companies. But of course, the sort of person who buys pirated DVD's (probably of unreliable quality) can't afford the legitimate ones for $20 or more, or can't afford $10 a head for a movie.

But this is "physical" piracy, not stealing off the Internet. The people who made the DVD's probably circumvented DMCA copy protection and copied real DVD's, or somehow got them through P2P. SOPA and Protect-IP wouldn't stop this activity anyway.

Did I say anything? No. But somehow my body language probably wasn't inviting. The man did not approach me.

It would appear as if some people make an underground living, maybe even supporting families, by selling pirated DVD's. Police certainly know this. They probably have more pressing things to worry about. Would someone in a position to be drawn into this "innocent" and understandable "scam" (and probably not as harmful as Hollywood says) be vulnerable to being recruited to more obviously dangerous activities? Police intelligence perhaps should look at this activity as an early warning.

Facebook gets its hand slapped; but public has to accept that "free" social networking has a price (e.g. advertisers who need your info)

2011-12-01T02:43:00.000-08:00

There’s a lot of buzz about FTC’s settlement with Facebook. It’s obviously essential before any attempt to do a big IPO in 2012.

Facebook has agreed to seek the approval by its users (I’m not sure how) and to remove all information from deleted accounts within thirty days, among other provisions.

Mark Zuckerberg wrote a post (“Our Commitment to the Facebook Community”) on the corporate blog explaining the settlement here. It’s interesting that he mentions “selecting your audience” as his first dot point. That’s how social networking is so fundamentally different in purpose from simple publishing, even if the practical effect is often similar.

Helen A.S. Popkin wrote a story on MSNBC that relates a not-so-nice email he wrote about all the personal info submitted to him in college, (website url) here. The article goes on to note the effort still needed to increase privacy settings, and your actual name and profile image cannot be private. One of the sublinks here complains about the Facebook cookies employed when non-users visit member’s profile pages or (if public) walls.

CNN Money has an article by Julianne Pepitone with a video "New Facebook features: You life on display", here.

Personally, I subscribe to the tautology that you can’t get something for nothing. For Facebook or any company (Google+, Myspace, etc) to offer a comprehensive social networking experience – understood even as having a “social” purpose – and not charge membership, it needs to expect users to surrender a little control of “privacy” so that advertisers can reach them and have a reasonable chance of increasing sales because of exposure on Facebook. So a social networking site like Facebook isn’t “free” anymore than broadcast TV used to be; one way or another, the public has to accept the role of advertisers. Of course, this role might be regulated. But too much well-intended privacy-motivated regulation (like going to heavy on “do not track”) could make it unprofitable for companies to offer the services that made the Internet what it is today. Ultimately, other companies ("sponsors") have to be able to sell (to social media and blogging platform users) electric Volt cars, or LGBT movie DVD's, or cruises to Antarctica or maybe space travel rides to keep other people employed.

So would too much exposure to downstream liability (SOPA and Protect-IP), indeed make it impossible for the "user generated content" model of today's Web to continue to operate.

Questions continue about the "punish all" provisions of SOPA

2011-11-29T11:11:00.000-08:00

The Wall Street Journal joined the fray of “sky is falling” commentary against SOPA, this one late Nov. 28 by L. Gordon Crovitz, “Horror Show: Hollywood v. Silicon Valley: To protect copyright, movie industry favors legislation that would strangle the Internet (link) (WSJ subscription required). Crovitz writes bluntly that SOPA aims to “make websites responsible for anything posted on them or potentially posted on them by third parties” and that “a violation could be a single link on a single page”.

Today, EFF was warning visitors that the Senate’s Protect-IP was back, and could actually pass before SOPA, which is due for markup debate Dec. 15.

The New York Times tried to strike a balance Saturday (link given at the end of my posting Nov. 25) by saying that the law should be narrowed to apply only to foreign sites, abide by DMCA safe harbor, and require court supervision, always. Good ideas, but then why does Congress and Hollywood need a different law?

It’s, as a famous copyrighted song from “The King and I” reads, a puzzlement. Why does Hollywood need the right to have whole sites disconnected for the sins of the few? Why isn’t the DMCA provision sufficient for them?

You could probably ask a similar question of Righthaven. This seems more like social combat, and protecting business models from low-cost competition, than a redress to genuine infringement.

One could provide, in the law, some way in the (5 day) counter-notification process to allow “accused” to show that their sites are not predicated on promoting infringement. This could sound like the soft provisions of Fair Use. For example, a content site would seem to be safer if most or a lot of the content was original with owners of the site. An e-commerce site would be safer if most items sold had not led to complaints. But if the DMCA Safe Harbor is properly honored, is all of this necessary? It sounds pleonastic, like the French “ne”.

Dominic Basulto has a curious blog entry in the Washington Post Nov. 19, “SOPA’s ugly message to the world about American and Internet innovation” here. He says Hollywood is mixing controlling piracy with censorship.

The one abuse that I see where DMCA is not too effective is the situation where “rogue” sites are set up based on misspellings of popular sites to phish, distribute malware (or mainly to park ads). Legally, these would be covered by trademark law now. These concerns are distant from those in Hollywood about piracy.

Mike Ludwig has a Truthout article "The SOPA Scoop: Anti-Piracy Bills Enrage Web Freedom Groups, Divide Congress," link.

Today marks 50th Anniversary of my William and Mary expulsion

2011-11-28T07:12:00.000-08:00

I covered the details on a post on Tuesday, Nov. 28, 2006, but today, Nov. 28, 2011, marks the fiftieth anniversary (back to Nov. 28, 1961) of my expulsion from the College of William and Mary as a freshman, after “admitting” to the Dean of Men (Carson Barnes at the time; Lambert was Dean of Students and Pascal was president) on the day after Thanksgiving, after a sudden summons by handwritten note on my dorm door, that I regarded myself as a “latent homosexual” -- after an interview that had started with leading questions by him.

The actual expulsion (where my parents were told separately first while I was actually in class) and my physical removal occurred “today”, which was a Tuesday that year, the first really cold day of the late fall. Today, in both Washington and Williamsburg on the “golden anniversary”, it’s unseasonably warm, inviting Halloween-style thunderstorms later.

In late October of this year, I made a visit to William and Mary to join GALA for its silver (25^th) anniversary, with postings at that time.'

What’s remarkable to me now is how I was able to tell the story, without third party approval, in both book form and on the Web because the legal environment has until now protected Internet service providers from downstream liability (for the most part). That capability could be in jeopardy because of SOPA.

New York Times prints forum on anonymity on the Web today; Facebook v. Salman Rushdie

2011-11-27T07:20:00.000-08:00

Recently, the New York Times (Nov. 14), in a story by Simoni Sengupta, reported on a scoff by formerly targeted author Salman Rushdie with Facebook for not using his legal real name (Ahmed) on Facebook.

Today, Nov. 27, in page 2 of the Sunday Review, the New York Times sponsored a reader’s dialogue (many LTE’s), “Anonymity and Incivility on the Internet”, link here (that page in turn links to Simoni’s story “Naming Names: Rushdie wins Facebook fight” aka “Rushdie runs afoul of Web’s real-name police”).

In practice, anonymity (fiercely defended by the ACLU and EFF) cuts both ways. It can be a shield for the vulnerable, and it can be a sword for bullies. But, as Simoni pointed out (and I did yesterday), Facebook could have valid business reasons for insisting on real names: it wants to become a defacto standard for business identification, which could help overseas. But it also seems to take Facebook out of instigating any more middle Eastern revolts. (Maybe there aren’t more left anyway.)

I thought that Facebook had a place to enter nicknames in the Profile, but I couldn’t find it this morning. (The profile controls have really changed a lot recently.) I added a comment explaining that my nickname “Bill” is based on my middle name “William” in “John William Boushka” and I always sign my name as “John W. Boushka”, which is my Facebook ID. In practice, I regard my nickname (“Bill Boushka”, used for my books) and legal name as interchangeable and equivalent.

As Simoni noted, Google+ is experimenting more with allowing pseudonyms (the “Mark Twain” or “George Elliot” problems we learn about in high school English – and how about Shakespeare himself, according to Roland Emmerich?), and Twitter is all laissez-faire (yesterday).

The New York Times forum today is sponsored by Christopher Wolf, who comes down favoring the use of real names, but says he is not precluding a place for anonymity on the Web (but it seems that he is doing so to me).

It may be worth noting that as SOPA (the controversial Stop Online Piracy Act) evolves, it could be that use of real names could come to be perceived as a way to show that one’s site is “legitimate” and not intended for infringement, after a possibly bogus claim against a site or misbehavior by just one user.

As for me, I have used “Bill Boushka” (and somewhat interchangeably the legal “John W Boushka” – both work in Google and Bing) for years, ever since I wrote my first book (1997). I was involved in documenting the history of gays in the military (“don’t ask don’t tell”) which bears an obvious relationship to the Internet anonymity issue, as well as to Internet speech itself (I was a COPA litigant). If I did not use my real name (at some risk, maybe even to family), my self-stated and self-published speech would have no effect. If I had not done so for fifteen years, I wonder if we would have won repeal of “Don’t Ask Don’t Tell” earlier this year. The effectiveness of just one person who makes himself public, stays out there and doesn’t go away for years, should not be overlooked.

Update: Dec 6

EFF has noted this debate, and pointed out that USA Today is requiring a Facebook account and login (because it is identified with a real name) for comments (link). Will other sites follow suit?

Another case of a teacher suspended for web activity; more on using true identity on the Web (Twittergate)

2011-11-26T14:51:00.000-08:00

Here’s another story about online reputation and teachers. A special education teacher in California, Heidi Kaeslin, was suspended without pay after creating a porn site called “My Slutty Teacher”, which was up only for a day. Nevertheless, her ex complained to the school system. The case may be simplified by the fact that she used a school laptop in creating the site; the case would be more interesting had absolutely everything been done on her own dime.

Yahoo! went to the trouble to offer this commentary, which does not help the teacher’s case.

CNN reported the story Saturday but does not seem to have the story online yet. CNN also discussed a twitter account of someone impersonating Rahm Emanuel, with a news story here. It appears that this is perfectly legal now (it could be called parody). Remember, though, that Facebook and Google+ have been insisting that members use their real names (Google+ may be shifting on this, however).

Facebook may well believe (quite reasonably) that if it enforces the policy of true identity worldwide, it is more likely that China may one day accept the site, on favorable temrs. There was a story in July in Forbes that China might accept Facebook in its country if it is allowed to buy part of the company, link here. In fact, check this Wikipedia article on what China bans – almost everything. On my doaskdotell site, I get traffic from Middle Eastern countries (including Saudi Arabia) but very little from China.

SOPA and the "Middle School Detention Problem": Congress should learn a lesson from Righthaven

2011-11-25T08:00:00.000-08:00

Remember in middle school when the teacher would give everybody detention because one or two people were talking out of turn? The teacher would even prod the class on learning to watch out for one another. In fact, I found that out as a sub: one kid could ruin an entire class and get me banned from the school. That potential analogy forms the heart of what is so unsettling to the Website- authorship-and-hosting community about SOPA in the House (and to some extent, the similar Protect-IP in the Senate).

Visitors are urged to read carefully the written comments by Google’s General Counsel on Copyright, Katherine Oyama, before the Judiciary Committee Nov. 16, here.

Here’s the heart of what she says from my perspective. Any website or service (publishing or video platform, or shared hosting, or e-commerce site) can be exposed to being “tackled” upon a complaint from just one copyright (or perhaps trademark) owner. The actions that could occur include domain name(s) revocation, suspension of payments from credit card companies or other processors, disconnection from advertisers, removal from search engine results, or outright termination of service (as with a typical TOS violation). A complainant can get a court or government agency to use whatever means is necessary to render the site inoperable if just one element (or user) of the site invokes a complaint, regardless of the rest of the site. The multiplicity of potential remedies seems to stem from a belief that various methods may be needed to fight rogue overseas sites, but as the bill is written they could apply to domestic sites too.

That would seem to mean that a site needs (as a practical matter, even if not legally directed) to preview the activities of its customers, to reduce the risk that one customer could get it taken down. This sounds like a warped application of the Biblical idea of being “your brother’s keeper”. In theory, this could sound as though YouTube might believe it would have to review every video before being put up, because one infringing video could get it all taken down. This existential “threat” may seem very unlikely in practice, and of course it would be impossible for YouTube to do this. But YouTube’s management has to make a conscious policy decision about what “risk” it can take with its shareholder’s money. (In a publicly traded, fiduciary environment, it’s legally obligated to do so.) (Oyama, at one point, suggests that YouTube might not have come into existence had SOPA, as drafted now, been in effect in 2004; perhaps the same could be said about Blogger and Wordpress earlier.)

There are a couple other wrinkles. One is the end-around of the DMCA Safe Harbor, or Digital Millennium Copyright Act provisions that allow service providers to preclude downstream liability if they honor takedown notices. As Google points out, having complied with the DMCA procedures would not necessarily “save” a site brought down by SOPA. It’s true that SOPA does have a counter-notice procedure (similar to DMCA) and requires some review by a court or government when an order is contested. But now this would be necessary to save the entire site, not just one posting.

It should be noted that even now the DMCA Safe Harbor does not necessarily protect an individual web self-publisher from litigation. We know that from the summary lawsuits filed against bloggers in the past two years by copyright troll Righthaven. No, Safe Harbor protects “providers”, or those who publish materials submitted by others, and only with proper registration with the Copyright office.

That invokes still another grim possibility, however, that “trolls” will bring frivolous actions against service providers or smaller e-commerce sites with the intention of extorting settlements, in a manner reminiscent of Righthaven. Lawyers say that SOPA replaces a "adversarial" process with an "ex parte" risk.

There is a lot of discussion (particularly in Google’s comments) about “technically feasible” ( a phrase that sounds evasively vague) means being expected of sites to preclude illegal activities by customers or users -- particularly to prevent, or to prevent "access" to "illegal sites" from their plaforms. This concept may have also generated a lot of speculation that SOPA "directly" requires preemptive monitoring (as well as mandating it in practice between of the "misbehavior veto" problem). It has even led to talk that sites or blogs could be brought down for hyperlinking to illegal sites (or does the TF requirement only apply to higher level providers?) . The language of Section 102, when I read it, suggests to me that normally sites and providers have five days after being served notice to block access, although they're supposed to "harder". The notion that this could apply to normal sites and blogs prospectively sounds very unlikely to me: in general, a blogger when linking to an article on another site has no conceivable way of knowing if that site is somehow, in a downstream (mathematically connected manner) involved in infringement somewhere else in the US. (I could add a caveat to that statement, though. Some anti-virus companies, especially Webroot when running on newer Mozilla platforms, inform users that they are navigating to sites known to be associated with malware. Other sites, my MyWOT, warn users about sites known to have unethical business practices even without malware. It’s not hard to imagine this sort of screening at the browser level being viewed as “technically feasible” and bloggers being told they must use it (at least if notified of a problem). (Embeds, which are really "just" links according to EFF, could raise interesting questions under SOPA).

In my own case, I probably have limited exposure. I monitor comments on blogs, and on doaskdotell.com (my main site, originally called hppub.com, since 1997) I publish readers’ comments only in one specific subdirectory, after monitoring. But in theory my shared web hosting provider could perceive unknown risk from me and all other shared hosting providers. (I’m up for renewal in 2013.) SOPA also raises still another question in my mind: could pro-active monitoring somehow make one more liable for downstream infringement, for missing an infraction? Maybe it’s actually safer not to monitor. It’s hard to tell.

Since around 1996, the Internet has been based on user self-publishing and, by and large, freedom from downstream liability to service providers for either torts (libel) or copyright or trademark infringement, outside of some limited areas (Safe Harbor). This environment does promote a degree of “amateurism” which some people do not agree with. Also, the open environment invites cyber-abuse, as I covered on recent posts (Anderson Cooper shows). Some people may also fear that “low cost” or no cost competition from bloggers (not infringement, just competition itself) harms the established media businesses and costs jobs. In this environment, some in Congress may believe that the “open environment” should go away, and that “newbies” should be forced to compete in the world in a more conventional fashion, as in the past. It’s hard for me to tell from this legislation if that is what they believe (some comments by the US Chamber of Commerce were disturbing and Anderson Cooper has recently criticized what amateur activity on the web opens the world up to). It also seems that most in Congress do not really understand how the Internet works. There are many lawful business models (often related to private or public holding) on the Internet, and they can come into conflict.

There’s a final personal experience lesson, referring back to an incident when I was subbing, described here July 27, 2007. In that case, I mentioned my doaskdotell site to a staff member in discussing a political issue (at the time, campaign finance reform), and suddenly the school came down on me because someone thought that two files on the site (out of over 1000) compromised my own reputation. Again, the presence of one problematic object on a site renders the entire site or operation legally vulnerable. I haven’t forgotten this lesson.

I'm still wondering: when should I pay for someone else's sins? I guess if I take advantage of the process that allowed the sin, maybe? We all live in a community.

Update: Nov. 27

The New York Times has a reasonable editorial and proposed solution "Going After the Pirates" here. I'll come back to the proposals here soon.

It's harder to be a Good Samaritan, or accept one

2011-11-23T18:34:00.000-08:00

MSNBC tonight ran a video on the Thanksgiving spirit, showing how farmers in Illinois help each other get crops in on time.

Visit msnbc.com for breaking news, world news, and news about the economy

This story reminded me of an incident in September 1992 when I was on a bike trip with an outdoors group called Adventuring. In Delaware (the Blue Hen State), I fell behind and lost the pack (there was a period of heavy rain). I needed to get back to the Eastern Shore town of Millington, MD to get to a particular house for dinner. There was a stretch of US301 that is like an Interstate (once crossing into Maryland from Delaware), on which bikes are not allowed, as I recall.

Just at that moment, an elderly couple in a pickup truck appeared and offered me a ride to Millington, with the mountain bike in the back. I can’t explain my luck to run into a good Samaritan.

Yet, could I change a tire for someone? Could I give someone a jump start? Today that seems a bit dangerous (given a recent incident in Tysons Corner, VA). We are becoming less willing to accept interdependence, not good for long term sustainability.

Give thanks for past good Samaritans.

I did make a small contribution to Wikipedia this evening. I depend on it.

Money: when "fiat" it means less (and socialization means more)

2011-11-22T17:14:00.000-08:00

The Opinion section of the Washington Times on Nov. 22 has a piece by Cato Institute fellow Richard W. Rahn, “Making Money Disappear: Currency not tied to gold or other standard becomes worthless”, link (website url) here.

I’d also like to call attention to an Atlantic article (reprinted Sunday in the Dallas Morning News, my "entertainment" while having a burger at JR’s – watching the Redskins lose when I was in Big D), by Megan McArdle, “The Financial Folly of Fairness”, link here.

All this is important to my own writings. Rahm points out that “fiat money” is an exchange medium, declared by sovereign government as currency, but not tied to a limited physical asset (gold, or anything permanent and scarce of intrinsic aesthetic value). Wikipedia doesn’t emphasize the lack of physical standard, and I’ve often used the word “fiat” for any sovereign currency, which isn’t technically correct.

It’s useful to think about what money means in a “perfect market”. If I own a gold coin, I own the proportion that it represents of the world’s goods and services. I surrender it to purchase something. If I loan it to you, then you acquire the goods, but owe me, and must pay me back later with slightly more coins (or troy ounces). There’s a slight risk you might not. (So I might check your FICO score first, or even try to gauge your reputation online from search engines and Facebook.) The same is true if I deposit the coin in a bank. It owes me on demand, but there is a slight risk that it might not redeem it. McArdle argues how such ideological simplicity fed the Great Depression (bank failures and wipeout of savings), and she could be right.

If you tweak the meaning of money, you can make an economy seem to be safer for most people. I know libertarians don’t like to hear this.

As a writer with some screenplays and novel manuscripts to try to get published or made soon, I can say that I’ve toyed with the notion that another civilization (say, a planet 30 light years away) might get by without money (fiat or not). How? Well, other animals (lions, wolves, prairie dogs and beavers, dolphins and orcas) have complex communities of individuals without currency. Instead, they seem to have rigid, authoritarian (alpha-male driven) social structures (not to the point of beehives). Could animals with human intelligence. Maybe that’ the orcas. With human intelligence and the ability to make tools – machines – and set up a division of labor across an economy?

I think it’s possible, and disturbing. (I think Clive Barker tinkered with this idea about the connected dominions in his 1991 novel “Imajica”.) On another planet, you could probably have Facebook and not money, but you would have very rigid social structures and other ways to see who “paid their dues”. And people would have to watch each other’s back, play “brother’s keeper”. But maybe you could have a benevolent timocracy as government – for most people. But, however you cut it, something bad would happen to the individuals who “didn’t make it”.

Of course, we say, that’s the point of a market economy. Strict enforcement of individual “moral hazard” makes it fair. But it can’t. What about the “losers”? We have to deal with the fact that people don’t start in the same place in line (even on an adjusted jogging track). So fairness is more than just individual justice; it has to do with socialization (especially “family”) and living in a community. Hence, Megan’s arguments about what really works.

Many of us experience the first two decades or so outside of the “market”. Our parents and schools control us, and our futures are impacted by how well we do. Grades become a currency. When I was coming of age, grades could determine whether you (if a male) could be drafted into combat – sacrifice for others.

All of this matters as we contemplate all the calls to regulate the Internet, from SOPA (aka Protect-IP) to gutting Section 230. People sometimes do get forced to give things up that mean a lot to them and play Brother’s Keeper. We have to watch the current debates very carefully.

Anderson Cooper presents another story about third-party postings that sunder reputations

2011-11-22T13:51:00.000-08:00

Today, Anderson Cooper presented more situations where people sunder the reputations of others on the Web, and like it or not, Section 230 is relevant.

The basic link for the episode is here.

Compromising photographs of at least two women were posted as “revenge” by ex boyfriends, and linked to the women’s Facebook pages. Anderson called the practice “revenge porn”.

The man who runs the site is Hunter Moore, and there is a story about him on “theawl” by Danny Gold, link. The site is called “Is Anyone Up?” It does not have a good reputation with MyWOT according to Firefox. There’s another site called “Alternate Press” with a disturbing story here.

Moore (with tattoos) appeared on Anderson’s show, and when Anderson chided him, his rationalizations seemed simplistic. He seemed to have no concept of karma.

Anderson asked Moore if he would want his sister to be exposed to what can happen on his site. Moore said, no; that raises the question as to why there would be different standards of what is all right for relatives as opposed to everyone else.

Bill Stanton (here) also appeared, and explained how the Internet is still the “wild west” and how the law hasn’t kept up with it.

Anderson sounded critical of sites that have no oversight as to content that people post on them (that is, the concept of self-publication, facilitated by Section 230 and DMCA Safe Harbor).

Anderson Cooper ("Strong Child Productions") should certainly consider inviting Michael Fertik (Reputation Defender) to his "real conversation".

He said, "if you make a mistake, it's there forever". You can't make a mistake anymore.

Update: Dec. 12

Facebook took some legal action on this matter, story here.