I've gotten some criticism for my discussions of what enters into my thinking, and for detailing the problems I feel affect my activism work. I have an aphorism for this:
"Yes, it's personal. I personally don't want to get sued!"
More deeply, change is done by people, not ideals. To refuse to think about how people struggle to apply ideas is to refuse to think meaningfully ("the personal is political").
I can always tell when Michael Sims (one of Slashdot's "editors", in spite of being the domain-hijacker of Censorware Project) has done something abusive. This is not due to ESP, or a mystical connection (though he'd certainly claim my knowledge is proof of some malignant aspect). Rather, it's a "push" effect as opposed to a "pull" effect - the knowledge comes to me, rather than my having to seek it out. Behind the magic, it's simple. I get many referred hits to my website whenever he throws a temper-tantrum on Slashdot. So I know something's up.
In this case, on Thursday, for five stories he posted, Michael Sims made their tags lines a completely irrelevant attack on the broadband company "Speakeasy". It seems he was having a service dispute with them. Thus the obvious course of action, if you've got journalistic power to abuse, is to make the front page of Slashdot a forum for ranting about it as a prelude to other stories. One posting by user "LittleLebowskiUrbanA" summarized it all:
Text of an email I sent to Speakeasy:
These comments are taken off of the front page of www.slashdot.org and were made by firstname.lastname@example.org This seems to be very bad publicity for your company. Will you be posting a response? You may want to have your public relations dept take a look at this website and these comments.
> *from the speakeasy-dsl-sucks dept.*
> *from the speakeasy-has-spent-two-weeks-without-placing-my-order dept.*
> *from the i-thought-premium-price-meant-premium-service dept.*
> *from the not-in-speakeasy's-case-certainly dept.*
*from the even-writing-to-speakeasy's-ceo-gets-no-results dept.*
Apparently Slashdot didn't care. It's hardly a big issue overall. Maybe they even think such whining on the front page is good for their street-cred.
People just don't get it when I talk about why the journalistic abusiveness is such a problem for legally risky anti-censorware work. I say over and over, Michael Sims held hostage then hijacked Censorware Project, and still has Slashdot's de facto support. I have essentially no power and have to worry about being sued, with the prospect of smear-attacks from Slashdot!
It's not sustainable.
One of the depredations (and consolations) of age is that the world becomes increasingly unrecognizable. Filterers are conmen and conwomen. Censorship is anathema to our profession. What in the name of Jumping Jehosaphat are we doing even contemplating trying to evaluate which brand of filtering snake oil is "better" than other brands? A pox on them all and a pox on censorship.
And another comment of Melora Ranney Norman:
Were we unprepared for the CIPA trial?
If the basis of our case was in whether the technology *works* or not, then perhaps.
If the basis of our case rested upon the foundation that censorship (and by extension, censorware) in libraries is unconstitutional and wrong, then perhaps not.
Where it seemed useful to discuss how badly the technology works, we relied upon independent studies, which might be seen as a reasonable attempt at objectivity, so I am not entirely convinced that we've been derelict in this regard. There appeared to be a general consensus that censorware significantly overblocks and underblocks. We all agree that we don't have access to the blacklists, and we don't know what's being de-selected. As far as I can tell, the prevailing argument seems to be that none of this matters--that something is better than nothing--so what more can we hope to prove? I'm not 100% opposed to studies, I just don't see exactly where folks hope to go with that. ...
So where do we put our limited resources and energy now? Do libraries have to censor, and must we now study how to censor best? Is that a priority now? These are difficult questions.
The American Library Association recently issued a statement on CIPA (Federal library censorware law). I've greatly enjoyed reading some of the librarian discussion about it, such as the postings of Karen Schneider:
QUESTION: I would like to know what resources we are committing to these needs.I am concerned that we will attempt to resolve these issues with inadequate resources. We need to do more than "gather and share" information about filters, ... We lack mechanisms for responding to wild statements from vendors or press releases about brilliant new technologies that nearly always turn out (as I discovered in my own investigation lo these years ago) to be yet more silicon snake oil. We have allowed the filtering proponents to overwhelm us in one area you would think librarians would excel in -- providing information.
Yes, I am talking about spending money. Somehow, somewhere, we need to break a few eggs to do this right. My guess is this activity will never, ever come from ALA proper, and if we attempted to source it within the bowels of 50 East Huron it would slowly die of colic. However, it would behoove us to ensure it is happening and to help underwrite it if necessary. We have library schools, research institutes, and other agencies that could provide us with what we need if we make our needs clear and help pay for them.
And the comments of Melora Ranney Norman:
In order to study the selection of blocking software along with the selection of print and audio-visual materials, we would probably need to establish a core course called something like censorship 101, since that is the only thing that blocking software is used for.
Until now, selection criteria has been proactive, not reactive. We have claimed that we tried to ascertain what our patrons wanted and provided it to them; if we were judging and suppressing material it was not part of our coursework. Until now, we have not considered it a matter of scholarly inquiry to examine what parts of magazines, encyclopedias, or books we should slice up and burn. Does this profession think it's time to change that?
What follows are some thoughts I have about what the Bunner DVD trade-secret case recent decision actually means. Note I am not a lawyer, and the views below are my own, no warranty expressed or implied, free advice is worth what you pay for it, and so on.
In general, this is in the abstract, a formal, procedural, decision. It is not a factual ruling. It's a matter of law. However within those formal, procedural, matter-of-law constraints, I see things as being said, which are not good. But I see it as problematic in a much more complex fashion than the popular press is reporting it.
The popular reporting may be that this decision ruled the facts against Bunner. That's wrong. But I also think it's too abstract (though not strictly wrong), to infer nothing at all about how the facts are likely to be ruled on "remand" stemming from what's written in this decision.
My understanding is that the Appeals Court says:
(emphasis mine in all the below)
"Preliminary injunctions are ordinarily reviewed under the deferential abuse-of-discretion standard. We consider only whether the trial court abused its discretion in evaluating two interrelated factors."
They would like to let Bunner off. But they have a problem. They will have a very hard time doing that under a "deferential" "abuse-of-discretion standard". So they make a big jump:
"However, not all restraining preliminary injunctions are entitled to such deferential review. ... Thus, in order to determine the appropriate standard of review, we must first decide whether the restraint imposed by the trial court's preliminary injunction implicated Bunner's First Amendment right to free expression. If so, we exercise independent review. "
This jump gets them out of the "deferential" state, and into the "independent review" state. And they are happy, because they then can write on about the importance of free speech, as a principle.
But this jump lands in the CA Supreme Court. The CA Supreme Court slams it, hard. Not valid, error, core dump, etc. They send it back to the Appeals Court.
We have now returned from the jump. Since no further ruling on facts has formally been made, we could abstractly be said to be no worse off than before. That would be the formal answer. However, informally, I think the key is in this part:
"If, after this examination, the court finds the injunction improper under California's trade secret law, then it should find that the trial court abused its discretion. (See ibid. [holding that, in determining whether the "issuance of a preliminary injunction constitutes an abuse of " discretion under the First Amendment, the reviewing court must independently review the factual findings subsumed in the constitutional determination]; ... [holding that preliminary injunctions are reviewed "under an abuse of discretion standard"].) Otherwise, it should uphold the injunction.
The Appeals Court didn't want to do that review under an "abuse of discretion" standard. So though the case is now being returned back to a favorably-inclined court, it's going back with extremely strong "guidance" to be decided in a way that the Appeals Court wanted to avoid - for the obvious reason that such a path strongly implied upholding the injunction, as a practical matter.
The Appeals Court is now locked back into the "abuse of discretion" box. Along with plenty of attitude conveyed, that the defendant is a bad guy and the plaintiff is a good guy. In theory, they could still have a favorable ruling. But I see them as being told here to uphold the injunction unless they can come up with an extremely good reason why not (again. "abuse of discretion").
Of course, I-Am-Not-A-Lawyer. But I'm trying not to be a defendant either 1/2 :-).
Update: A smart, top-flight, veteran, California lawyer tells me that I'm misreading that key standard of review aspect. The Appeals Court is in fact being told to exercise a fully independent review, not a deferential review. If so, I'll own up to misreading the above.
I came across another especially interesting passage in one opinion in decision from the DVD trade-secret case, This discusses reverse-engineering as applied to the case (remember, for contrast, the Bowers v. Baystate case upholding shrinkwrap prohibitions against reverse-engineering):
I also note that it is highly doubtful the alleged trade secret was acquired by improper means within the meaning of the trade secret law. Civil Code section 3426.1, subdivision (a), defining "improper means," states "[r]everse engineering . . . alone shall not be considered improper means." Apparently the word "alone" refers to the fact that the item reverse engineered would have to be obtained "by a fair and honest means, such as purchase of the item on the open market for reverse engineering to be lawful." ... According to the allegations of the complaint, the alleged initial misappropriator of CSS, Jon Johannsen, acquired the secret through reverse engineering. There is no allegation that he acquired the product containing CSS unlawfully, and that therefore improper means were employed. The DVD CCA argument below that violation of a "click license" agreement prohibiting reverse engineering constituted the improper means does not appear to have merit. To be sure, contract plays an important role in trade secret law by protecting the trade secret holder against "unauthorized use or disclosure through a contract with the recipient of a disclosure" or others who have had special access to trade secret information, via confidentiality agreements and the like. ... But nowhere has it been recognized that a party wishing to protect proprietary information may employ a consumer form contract to, in effect, change the statutory definition of "improper means" under trade secret law to include reverse engineering, so that an alleged trade secret holder may bring an action even against a nonparty to that contract. Moreover, if trade secret law did allow alleged trade secret holders to redefine "improper means" to include reverse engineering, it would likely be preempted by federal patent law, which alone grants universal protection for a limited time against the right to reverse engineer.
Note, regarding Jon Johansen and DeCSS, that he did not in fact do the reverse-engineering. It was actually done by an anonymous German (and as I say, it's obvious why the person is remaining anonymous).
In any case, the above is one opinion, and it's arguing against the finding of the lower court. So while it's a piece of evidence, I'm not exactly reassured (and it's California, other places may vary).
DVD CCA's trade secrets in the CSS technology are not publicly available and convey only technical information about the method used by specific private entities to protect their intellectual property. Bunner posted these secrets in the form of DeCSS on the Internet so Linux users could enjoy and use DVD's and so others could improve the functional capabilities of DeCSS. He did not post them to comment on any public issue or to participate in any public debate. Indeed, only computer encryption enthusiasts are likely to have an interest in the expressive content-- rather than the uses--of DVD CCA's trade secrets. (See Tien, Publishing Software as a Speech Act, supra, 15 Berkeley Tech. L.J. at pp. 662-663 ["Programming languages provide the best means for communicating highly technical ideas--such as mathematical concepts--within the community of computer scientists and programmers"].) Thus, these trade secrets, as disclosed by Bunner, address matters of purely private concern and not matters of public importance. ...
Only "computer encryption enthusiasts"? Not "matters of public importance"??
Calling Ed Felten ...
The California DVD trade-secret case has just had a loss.
"Today we resolve an apparent conflict between California's trade secret law (Civ. Code, § 3426 et seq.) and the free speech clauses of the United States and California Constitutions. In this case, a Web site operator posted trade secrets owned by another on his Internet Web site despite knowing or having reason to know that the secrets were acquired by improper means. The trial court found that the operator misappropriated these trade secrets in violation of section 3426.1 and issued a preliminary injunction pursuant to section 3426.2, subdivision (a), prohibiting the operator from disclosing these secrets. Accepting as true the trial court's findings, we now consider whether this preliminary injunction violates the First Amendment of the United States Constitution and article I, section 2, subdivision (a) of the California Constitution. We conclude it does not."
But later [cites to various cases cut-out for readability]
"Our decision today is quite limited. We merely hold that the preliminary injunction does not violate the free speech clauses of the United States and California Constitutions, assuming the trial court properly issued the injunction under California's trade secret law. On remand, the Court of Appeal should determine the validity of this assumption. Because there appears to be some confusion over the proper standard of review, we offer guidance below."
"In upholding the preliminary injunction against Bunner's First Amendment challenges, we rely on the assumption that DVD CCA is likely to prevail on the merits of its trade secret claim against Bunner. As such, "any factual findings subsumed" in the trade secret misappropriation determination "are subject to constitutional fact review." ...
"[W]here a Federal right has been denied as the result of a [factual] finding . . . or where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts," the reviewing court must independently review these findings. ... "[F]acts that are germane to" the First Amendment analysis "must be sorted out and reviewed de novo, independently of any previous determinations by the trier of fact." ... And "the reviewing court must ` "examine for [itself] the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment . . . protect." ' " ...
On remand, the Court of Appeal must therefore "make an independent examination of the entire record" ... and determine whether the evidence in the record supports the factual findings necessary to establish that the preliminary injunction was warranted under California's trade secret law ... [noting that appellate courts must independently review factual findings relevant to the resolution of any First Amendment issues]). If, after this examination, the court finds the injunction improper under California's trade secret law, then it should find that the trial court abused its discretion. (See ibid. [holding that, in determining whether the "issuance of a preliminary injunction constitutes an abuse of " discretion under the First Amendment, the reviewing court must independently review the factual findings subsumed in the constitutional determination]; ... [holding that preliminary injunctions are reviewed "under an abuse of discretion standard"].) Otherwise, it should uphold the injunction.
This is how I was describing certain recent events:
"It's not like pushing on a string - it's like pushing on a porcupine quill."
I was looking at other coverage of the National Telecommunications and Information Administration (NTIA) censorware report, and found the following item on CDT's speech headlines page:
Commerce Dept. Report Backs Capabilities of Child Protection Measures - The NTIA has released a report evaluating Internet filters and other protections for schools seeking to safeguard children online. The report argues that filters and other technologies are able to meet "most, if not all" of the needs of educators. It also cautions that "software has not been able to overcome problems of overblocking" and emphasizes the importance of protections besides filters. CDT believes the report underscores why online protections controlled by users are preferable to broad Net content regulations like the COPA statute, which is under fire in the courts. August 19, 2003
That last sentence ("online protections controlled by users") is classic CDT. That is, it artfully weaves around the law and the evidence in order to come out with the policy position favored by CDT, even if the whole process makes no logical sense. For example, the part CDT cites just before, about cautions about overblocking, the NTIA report has it as a lead-in for broader government usage:
Yet, other technology tools can or have the potential to address better the needs of educational institutions. Thus, NTIA recommends that Congress change the current legislation to clarify that the term "technology protection measure" encompasses not only filtering and blocking software, but also other current and future technology tools.
Now, it's not that CDT is "wrong" here, as it's what CDT "believes" is "underscored" by the report. But it can be very amusing, in a lawyerly way, to see how they derive such beliefs from a report which, per above, wants more types of censorware to be explicitly acceptable to government.
Sigh. On a more personal note, I look at this material, and think again that I simply don't have the resources to get-into-it regarding rebutting the NTIA report. There's far too few people who care about a factual rebuttal. The cheap and easy political expedient is simply to say it means whatever you want it to mean. Thus, there's little protection for me personally in countering the report, while the censorware companies have a direct incentive to attack me personally as much as possible. Maybe I shouldn't note that. But I still feel very unhappy about how I've been essentially marginalized, and by my own "side" too.
I ran the list of Sobig.F attack addresses through Google searches, both by address and by resolved name, to see if anything interesting could be found. The data and results confirmed what Rich Kulawiec had written about the connection to spamming systems. That is, there is a connection to spam systems.
At least eight of the sites appeared in various spam-denying log files from one place which makes such logs public.
Detailed data below
[The last number is the number of hits of the site from that day, I think]
mailhost1-grep.2003-07-26 pcp694043pcs.anaprd01.md.comcast.net (blacklist) 1
mailhost1-grep.2003-07-29 ip-24-197-143-132.spart.sc.charter.com (blacklist) 1
mailhost1-grep.2003-07-30 12-232-104-221.client.attbi.com (proxies) 1
mailhost1-grep.2003-07-31 12-232-104-221.client.attbi.com (proxies) 1
mailhost1-grep.2003-08-02 22.214.171.124 (proxies) 2
mailhost1-grep.2003-08-02 126.96.36.199 (blacklist) 2
mailhost1-grep.2003-08-02 pcp04447100pcs.verona01.nj.comcast.net (blacklist) 1
mailhost1-grep.2003-08-03 pcp04447100pcs.verona01.nj.comcast.net (blacklist) 3
mailhost1-grep.2003-08-03 188.8.131.52 (proxies) 2
mailhost1-grep.2003-08-05 184.108.40.206 (proxies) 1
mailhost1-grep.2003-08-10 modemcable043.91-202-24.mtl.mc.videotron.ca (proxies) 1
mailhost1-grep.2003-08-11 modemcable081.207-131-66.nowhere.mc.videotron.ca (blacklist) 1
mailhost1-grep.2003-08-12 modemcable081.207-131-66.nowhere.mc.videotron.ca (blacklist) 2
mailhost1-grep.2003-08-12 modemcable043.91-202-24.mtl.mc.videotron.ca (proxies) 1
mailhost1-grep.2003-08-13 12-232-104-221.client.attbi.com (proxies) 1
mailhost1-grep.2003-08-13 pcp04447100pcs.verona01.nj.comcast.net (blacklist) 1
mailhost1-grep.2003-08-14 modemcable043.91-202-24.mtl.mc.videotron.ca (proxies) 2
mailhost1-grep.2003-08-15 220.127.116.11 (proxies) 7
mailhost1-grep.2003-08-15 cpe-024-033-066-038.cinci.rr.com (proxies) 5
mailhost1-grep.2003-08-15 modemcable043.91-202-24.mtl.mc.videotron.ca (proxies) 1
mailhost1-grep.2003-08-16 pcp04447100pcs.verona01.nj.comcast.net (blacklist) 2
mailhost1-grep.2003-08-16 18.104.22.168 (proxies) 1
mailhost1-grep.2003-08-17 22.214.171.124 (proxies) 9
mailhost1-grep.2003-08-17 pcp04447100pcs.verona01.nj.comcast.net (blacklist) 2
mailhost1-grep.2003-08-17 ip-24-197-143-132.spart.sc.charter.com (blacklist) 2
mailhost2-grep.2003-07-24 12-232-104-221.client.attbi.com (blacklist) 1
mailhost2-grep.2003-07-25 12-232-104-221.client.attbi.com (blacklist) 1
mailhost2-grep.2003-07-26 pcp694043pcs.anaprd01.md.comcast.net (blacklist) 8
mailhost2-grep.2003-07-27 12-232-104-221.client.attbi.com (blacklist) 1
mailhost2-grep.2003-07-28 12-232-104-221.client.attbi.com (blacklist) 1
mailhost2-grep.2003-07-30 12-232-104-221.client.attbi.com (blacklist) 2
mailhost2-grep.2003-07-31 12-232-104-221.client.attbi.com (blacklist) 7
mailhost2-grep.2003-08-01 126.96.36.199 (blacklist) 1
mailhost2-grep.2003-08-02 188.8.131.52 (blacklist) 3
mailhost2-grep.2003-08-03 184.108.40.206 (proxies) 4
mailhost2-grep.2003-08-04 12-232-104-221.client.attbi.com (proxies) 2
mailhost2-grep.2003-08-11 modemcable043.91-202-24.mtl.mc.videotron.ca (proxies) 3
mailhost2-grep.2003-08-11 pcp04447100pcs.verona01.nj.comcast.net (blacklist) 1
mailhost2-grep.2003-08-12 modemcable043.91-202-24.mtl.mc.videotron.ca (proxies) 1
mailhost2-grep.2003-08-15 cpe-024-033-066-038.cinci.rr.com (proxies) 2
mailhost2-grep.2003-08-15 220.127.116.11 (proxies) 2
mailhost2-grep.2003-08-15 12-232-104-221.client.attbi.com (proxies) 1
mailhost2-grep.2003-08-16 pcp04447100pcs.verona01.nj.comcast.net (blacklist) 1
mailhost2-grep.2003-08-16 18.104.22.168 (proxies) 1
mailhost2-grep.2003-08-17 22.214.171.124 (proxies) 4
mailhost2-grep.2003-08-17 ip-24-197-143-132.spart.sc.charter.com (blacklist) 2
mailhost2-grep.2003-08-17 pcp04447100pcs.verona01.nj.comcast.net (blacklist) 1
Marjorie Heins at the Free Expression Policy Project has excellent commentary concerning the National Telecommunications and Information Administration (NTIA) CIPA censorware report
On August 15, the National Telecommunications and Information Administration, a division of the U.S. Department of Commerce, released a report that reads like a sales pitch for Internet filters.
Now, rebutting this report isn't a legal risk problem (I think ...). But I simply don't want the stress of going through getting trashed because I can't fight back. It's just not worth it for me.
Continuing further about the implications of power and prominence, now connect the just-discussed idea of "that, for some Very Prominent People, the definition of "people" is different" with the following portion of a favorite article of mine:
"As soon as the judge says 'hacker,' you know you've lost," University of Minnesota law Professor Dan Burk said. "There is an attempt to paint defendants as unsympathetic, low-priority, on the fringe--to make it seem like nobody respectable is going to be harmed except for weird hacker types."
That is, nobody who fits the definition of "people" in the above sense.
Just another small 'hacker'.
Buried at the very end of the newsletter is the following poignant item:
The One that Got Away
The original title for this perspective was "The politics of weblogs." It ended with a one-page essay on "The politics of prominence," based on an unfortunate recent incident in the blogosphere.
In the end, there wasn't room for that essay -- and I could never get my commentary in a form that would serve you and didn't upset me. So why include this non-item?
Because, despite my comments in the other weblogging Perspective, I do believe there's one rule that every blogger should follow, at least if the weblog involves comments by or about anyone other than the blogger.
You know the rule: It's found in nearly every philosophy throughout history. Something about treating other people as you'd like them to treat you.
Unfortunately, the more I thought about this incident, the more I believe that -- for some Very Important People -- there's an escape clause related to the definition of people (worth treating as people.)
And I don't want to write about that.
I completely agree. But I want to note the critical practical difference in the above between statement of values versus statement of fact. Specifically:
Statement of values: "treating other people as you'd like them to treat you"
Statement of fact: "escape clause related to the definition of people"
That is, there's a vast chasm between what people should do, and what they actually do. And the implications of this difference can be very painful (as we see!).
To a technologist, law and policy debates sometimes seem to be held in a kind of bizarro world, where words and concepts lose their ordinary meanings. Some technologists never get used to the bizarro rules, but some us of do catch on eventually.
One of the bizarro rules is that you should be happy when the other side accuses you of lying or acting in bad faith. In the normal world, such accusations will make you angry; but in bizarro world they indicate that the other side has lost confidence in its ability to win the argument on the merits. And so you learn to swallow your outrage and smile when people call you a scoundrel.
I've run into this phenomenon myself (except I'm not good at swallowing my outrage, so I suffer, and think I should get out of politics before I really get hurt), and I concur it exists.
What's going on is as follows: Law and policy, is, fundamentally, an undertaking where lying is expected. It's a tool, a strategic option. Not that everyone in those areas is dishonest. But being dishonest is simply considered, well, something like a lifestyle choice. One is expected to be somewhat tolerant, at least in public, of those who have a textual orientation different from one's own.
It's not that everyone in science is honest. But lying itself isn't a part of the workaday conduct (and the parts of the day where it is, are called, remember, "office politics").
In contrast, sometimes people in politics really don't understand why technologists are so upset. It's akin to the stories where the savage or alien race eats the bodies of defeated opponents, and they don't comprehend why this causes such a nasty reaction. Because to them, eating the body is a token of respect for a worthy fight, not a supreme indignity.
Hence to the savage and alien race of politicos, accusations of lying or acting in bad faith are supposed to be taken as making them sweat in the fight, not as hitting below the belt. It's very weird from the techie point of view.
I was going to tell my GetNetWise lawyer story here, but this piece is long enough already. Some other time.
[A scoop! A scoop! :-)]
NTIA CIPA censorware report:
On August 15, 2003, [National Telecommunications and Information Administration] released a report pursuant to section 1703 of the Children's Internet Protection Act (CIPA) ... evaluating the effectiveness of technology protection measures and safety policies used by educational institutions. The Act requested NTIA to evaluate whether the currently available Internet blocking or filtering technology protection measures and Internet safety policies adequately address the needs of educational institutions. CIPA also invited NTIA's recommendations to Congress on how to foster the development of technology protection measures that meet these needs. NTIA's report concludes that the currently available technology measures have the capacity to meet most of the needs and concerns of educational institutions and makes the following recommendations: 1) technology vendors should offer training services to educational institutions on specific features of their products; and 2) expand CIPA's definition of "technology protection measures" to include additional technologies in order to encompass a wider array of technological measures to protect children from inappropriate content.
The ACLU released a legal memo for libraries on coping with CIPA, the Federal library censorware law. It came out two weeks ago, but it seems to have been little publicized.
It prominently mentions the "visual depictions" aspect of CIPA, and makes interesting recommendations.
There's a notable paragraph, which is think is extremely important for any idea of Open Censorware :
"Some libraries have suggested creating their own software. Libraries can certainly do that. The statute does not require any particular product. But, any product used has to represent a "good faith" attempt to comply. It seems unlikely that any individual library could create a blocked sites list and keep it up to date."
I must say I got a big laugh out of the recommendation of:
"3. Join with ALA in pressuring the software companies to make their lists of blocked sites public"
Hmm, censorware companies should make their blacklist public. They ought to. They should. Blacklists should be public from the censorware companies. I say so. That's the way to do it. Right on. Have I mentioned the blacklists should be public?
Sigh. I'm about ready to quit, because I just can't publish more censorware research due to the legal risk involved. For all the talk of pressuring censorware companies above, there's just no support for my work.
It's a little late, but I should add my small contribution to Fair And Balanced day protesting Fox News lawsuit against Al Franken over the use of the term "Fair and balanced" in the title of his new book.
To be fair and balanced, some of Fox's objections make a little more sense when one looks at the Franken book cover. The title "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right" buries the "Fair and Balanced" phrase among other words. The graphics design of the cover makes the "Fair and Balanced" phrase a bit more standalone and eye catching. The title is visually more along the lines of:
A Fair and Balanced
Look at the Right
That still doesn't justify Fox's reaction, in my view, but it does make it more understandable why they are complaining. However, the tag usage is clearly a fair and balanced parody.
More interesting is all the flaming in Fox's lawsuit:
77. Franken has recently been described as a "C-level political commentator" who is increasingly unfunny". ... Franken is neither a journalist nor a television news personality. He is not a well-respected voice in American politics, rather, he appears to be shrill and unstable. His views lack any serious depth or insight. Franken is commonly perceived as having to trade off of the name recognition of others to make money. One commentator has referred to Franken as a "parasite" for attempting to trade off of Fox News' brand and O'Reilly's fame in the Preliminary Cover of his Book.
79. Defendants' use of the Trademark also tarnishes the mark by associating the mark with Franken's sophomoric approach to political commentary. Such a use lessens the reputation of FNC for having a team of first-rate journalists and news personalities who gather, report, and analyze the news.
Note the insults serve a legal purpose. The idea is that Franken is a bad guy, so that the judge should decide against him, and associating him with the trademark is bad for the trademark. It does sound silly in print. But is the judge more likely to be a viewer of Al Franken on Saturday Night Live, or of Fox News?
Some of those slams come from an article "Al Franken is a Conservative Commentator Parasite and Other Observations", which in itself is parodying Franken's book RUSH LIMBAUGH IS A BIG FAT IDIOT and other observations." (Isn't it great how culture builds on itself?). But there's the source, "parasite", "Franken is a "C" level political commentator and usually unfunny", "needs to attack conservatives by name and then call them names to get attention", etc.
It's amazing what third-party flaming ends up in legal papers in court.
We have just come to accept this as a natural state of things because, like Gilmore, we're all suspected terrorist.
It seems to me that the Bush Administration, with its moral obtuseness, [long in this vein] ... has prepared for the American people a one-way ticket of sorts. When it comes to the quality of our democracy we are traveling on a road to nowhere.
Perhaps unfortunately, I yielded to temptation just a little, and posted about:
I'm backsliding, but my sense of humor has overridden my better judgment:
By referencing the old joke:
"Liquor - if you mean the demon drink that poisons the mind, pollutes the body, desecrates family life and inflames sinners, then I am against it.
If you mean the elixir of Christmas cheer, the shield against winter chill, the taxable portion that puts needed funds into the public coffers to comfort the under privileged, then I am for it."
I was thinking, using phrases from [Kucinich's] statements in the post:
"Security - if you mean the moral obtuseness, its inconscience on matters of civil liberties, and its craven attempts to demolish the Bill of Rights, then I am against it.
If you mean that where the traveling public deserves assurances that they and their loved ones will be safe in the air, then I am for it."
More is not worth it.
That is, it's very easy for anyone to go on about how he's against bad and for good, but this doesn't help much. I say unto you, that security forces should stop terrorists and not bother non-terrorists! Do you hear me! That's where I stand!
It's not that I'm defending the Bush administration. Rather, there's a hard problem here, and I didn't see anything at all in the post about his own solution to that problem. The information bit rate in political speeches is frustratingly low.
Completely lost in any discussion was the fact that John Gilmore wasn't suspected of being a terrorist by the airline captain because of his button. He was suspected of being a troll who would get a kick out of provoking and possibly panicking passengers about being a "Suspected Terrorist" (sigh, I said "troll", sigh, that gives him the right to trash me via moral equivalence, double sigh). That's not nearly the same thing.
Again, I have to tell myself, SIMPLE, POPULAR, DEMAGOGUERY.
I'm just not at the power level to safely get-into-it. I'm just not.
But on what grounds does Dave Winer, backed up by a small circuit of adoring journalists and fellow webloggers, have to uphold his right to fleece them for real bucks?
The following is my oversimplified analysis, but I think in broad general outlines, it explains what's going on (again, remember, I said it's oversimplified, there are exceptions, but I think the overall analysis is valid):
The right-wing bloggers are rich (or at least comfortably well-off). To make connections with other people useful to them, a $500 conference fee is a token. It's just a cost of doing business, like country-club dues.
The left-wing bloggers are not rich (some not even comfortably well-off). To them, an invitation to pay $500 to pal around with mostly (not exclusively, but mostly) right-wingers, is absurd. They have trouble imagining anyone would regard that as a reasonable fee.
The academics never pay for any conference out of their own pocket (it's a perk of the job). So viscerally, they don't understand what the fuss is about.
There's other issues, but I believe this is the flash-point. It's the key to the various views.
Disclaimers: Dave Winer mentioned me (favorably!) yesterday, for solving a puzzle of his. Andrew Orlowski has quoted me in the past. And John Palfrey also recently has noted me. I actually don't know who I should be lining-up with here, according to the rules of politics. I think I won't get in trouble for this article. I think ...
From one point of view, I'd like to write (tongue slightly in cheek):
"Dear Ian - My analysis is that you have far more to fear in terms of being arrested at the behest of the MPAA or RIAA, on the grounds of inciting copyright criminality, than by the US government for any terrorism-related reasons. And since the copyright regime is going world-wide, there's nowhere to hide."
On the other hand, this may not be all that reassuring ...
These day, I just have no sense of what's worth taking the risk of being slammed in order to do something altruistic. It's akin to loss of depth perception.
Just after I wrote about Mike Hawash, and thought about "the heat I would have taken back then, if I'd have said that I thought he was in fact guilty", comes the following item from Cory Doctorow at boingboing.net (via Greplaw story):
Ian Clarke has decided -- in the wake of Mike Hawash being railroaded into copping a "terrorism" plea for donating money to the wrong nonprofit -- that he must leave the US. I share his frustration and his anxiety. Sure, we're both white, educated technical immigrants, and thus relatively well-insulated from the excesses of the US's new immigration scapegoating, but every time I hear a story about a fellow immigrant to the US being terrorized by the immigration system, I get my own case of horrors.
[Ian Clarke does the FreeNet Project, an anti-censorship system]
Oh lord. I have to remind myself: Keep my mouth shut! Remember: Success == SIMPLE, POPULAR, DEMAGOGUERY. While not everyone arrested is guilty as charged, neither is everyone charged an innocent victim of abuse of power. I always worry about becoming a right-winger in my old age, and I sound like a cranky conservative to myself (in reacting to "railroaded"??? "donating money to the wrong nonprofit"???). I can just see how much flaming I'd get if I went around posting that Hawash is guilty, and this is not an instance of government abuse of power (especially if I had done that before his plea).
Maybe I'd convince some people. And maybe I'd get myself trashed from boingboing.net (and golly gee, I could post a comment to defend myself). It's not worth it.
Maybe I'll try to talk to Ian Clarke privately, to convince him that things are not nearly as bad as he might fear - at least along the lines of being arrested for terrorist activities. We're on reasonable terms, and he's publicly said some supportive things against Michael Sims domain-hijacking Censorware Project. Or maybe I'll just skip it all, as another I-can't-win situation.
Update 9/2 : For more information, see Ian Clarke GrepLaw interview, and leaving America follow-up
From the details, it's virtually certain he is actually guilty (pleading is not the same as truth).
I never did say anything when the story was first going around. But I was just musing on the heat I would have taken back then, if I'd have said that I thought he was in fact guilty.
Anyway, I was curious as to how well the cheap talk was matched with expensive donations. According to the Portland Tribune:
Some of Hawash's supporters started a legal defense fund after his arrest, raising approximately $20,000. To some of the people who wrote on the site, Hawash's arrest was proof that the war on terrorism had spun out of control and was trampling the rights of American citizens.
Not bad in relative terms, though he was cause-celebre. But in absolute terms, it's not close to what a criminal trial costs.
There's a common conception, that:
"On the Internet, anyone can be a publisher"
People tend to think of this as implying much equality. That somehow every net-writer is the equivalent of the New York Times (or Slashdot). But that's only a formal, procedural, equality, not a substantive equality. I've long thought the above phrase is akin to:
"In America, anyone can run for President"
Anyone sure can. That is, there's no law stopping you. But for all save a very few people, it would be, in practice, an exercise in futility.
Now, the circus in California from the recall election, has provided me with a marvelous way to make my point here.
There's an organization Run-For-Governor.org which is making a serious effort to have 1,000 (one thousand) people "run for the office of the Governor of the State of California." This is a deliberate tactic to "Help extend the absurdity of this recall election to its logical extreme."
On the Internet, anyone can be a candidate for California Governor?
You, too, can be a candidate for California Governor?!
But this will make you the equal of the political establishment in only the most abstract sense.
In trying to explain to someone my problems regarding journalistic levels of power, I ended up making the following chart. I decided to put it below, since it's instructive.
The following are roughly, what I estimate some daily readerships to be, in terms of order-of-magnitude numbers:
|5||100,000||Slashdot (actually more like 250,000)|
|4||10,000||Front page of Lessig blog|
|2||100||Seth Finkelstein blog (being extremely generous!)|
|1||10||New LiveJournal/Blogspot/Blogger/etc. site|
|0||1||My name is Joe-419 of the Republic of Spam...|
If one looks at the number of comments for an article, and it's clear that, on average, it tracks the hierarchy here (though there are some exceptions).
This illuminates what I was talking about earlier, mathematically, So, for example, Lawrence Lessig and Declan McCullagh can "feud", as they're on roughly the same journalistic power levels, despite vast differences in intellectual power levels.
But in terms of being way underpowered/overmatched - I'm down around level 2. Playing in leagues two levels greater than my own (or more!) is just going to lead me to grief.
Today c|net published some red-hot coverage (well, the news was months old, but whatever) of the RSS/Pie/Echo/Atom dynamics. The story genially ignored all the technical issues and focused on a thinly-documented tale of internecine infighting. But it was well-written and, I must admit, came out pretty readable. ...
[The reporter] called preparing for this story, and actively tried to get me to say something bad about Dave. By my count, on three occasions in a less-than-half-hour interview. ...
So pretty clearly what happened was, somebody told him about the nasty stuff, and he called everyone and nobody would go on the record about personality issues (surprise, surprise), and so had to write the story quoting weeks-old blog pickings.
Said Dave has a dissection of his own, e.g.:
Did you see the News.Com article? Pretty horrible. They are good at the fight-prolonging thing.
I find it instructive to observe this rebuttal ability and process.
I've already said the following in a few places, so I suppose I can't get in trouble for saying it again (famous last words...): The "RSS Wars" aren't about personalities, they're about visions.
Following my resolution of keep-my-mouth-shut, I'll say no more (especially about the RSS Wars themselves!).
John Palfrey nicely closes the blog circle with a post Felten replies to Davies, with thanks to Finkelstein
I have one more, less personal, note on Peter Davies IP paper. The following section seemed odd to me:
There is little UK specific work in this area, but when the US Congress was considering the relevant legislation in that country, the Librarian of Congress was asked to investigate the fears and allegations of the kind I have just set out. After a year studying the issue and asking for examples of the problem, it was reported that it had not been demonstrated that access to public domain information was hampered in the ways alleged. The view was also expressed that fears about controlled access and a pay-per-view regime were "speculative and alarmist" and that contributors to the debate had failed to show any hard evidence of the model in operation.
That's taken from the excerpt of the DMCA 2000 rulemaking. It turns out that the much more interesting full quote is from Siva Vaidyanathan 2000 DMCA testimony:
Yes, my fears are speculative and alarmist. But they are not outlandish nor inconceivable. Not every media company is as harmless as a mouse. Not every government is invested in the free flow of ideas and information.
The Digital Millennium Copyright Act grants complete power to allow or deny access to a work with the producer or publisher of that work. The producer may prohibit access for those users who might have hostile intentions toward the work. This power could exclude critics and scholars. Most likely it would exclude parodists and satirists as well.
The anticircumvention provision shifts the burden of negotiating fair use from the user, and the courts in the case of likely infringement, to the producer. The producer has no incentive to grant access to any user who might exploit the work for fair use -- including scholarship, teaching, commentary or parody. Under this regime, a user must agree to terms of contract with a monopolistic provider before gaining access. One must apply to read, listen or watch.
When it's not your house on the line, when it's not your job, then probably may be enough. To people like Davies, who had nothing personally at risk, a lawsuit would have been no more than a scholarly conversation piece.
There was an interesting line in Peter Davies IP paper which I didn't mention earlier, but found particularly revealing:
This may look like ghastly legalese to most of you, but it's meat and drink to people like me.
It reminded me of the old lawyer joke:
"A defense lawyer loses a criminal trial. His client turns to him and asks "Where do we go from here?" The lawyer replies: "Well, I go back to my office. You go to jail."
One thing I have noticed in many of my interactions with a certain type of lawyer, is a frustrating lack of comprehension regarding how ordinary people view lawsuits. It is not our "meat and drink". Rather, as in the classic Judge Learned Hand quote, lawsuits are next to sickness and death. The people at risk of being ground-up like sausages are in a very different position than the sausage-makers.
I suspect this also affects Peter Davies' perception of the "astonishing volume of vitriolic comment" on these issues. When it's a scholarly conversation piece, it is easy to be distant. But when it is you who may lose much, that's a different situation.
I've gotten enough dismissiveness myself over my own censorware research, over trying to convey the simple idea that I don't want to be sued, that in reaction, I have no doubt I come across as vitriolic too.
Given some of the comments suggesting I was overreacting to being trashed as troll by John Gilmore on the front page of Lessig's blog, I should explain myself more. I understand where these comments are coming from. Indeed, superficially, I see where I might appear as someone who can dish it out but can't take it. Or that I brought it on myself by repeatedly going on about Gilmore and trolling. The moral equivalence is that calling powerful people on trolling, gives them the right to trash you in response.
It's not a matter of suddenly throwing a fit out of the blue. In general, I've long been bothered by a sense that I'm playing politics out of my league. That my "level", in terms of audience and press-reach, is way too low for the things I'm trying to do. And then that the implication of this underpowered/overmatched situation, is that I'll always end up with a negative result, personally, for anything I do.
Note this isn't saying the result might not be positive for the world. Indeed, here, I take heart that several people remarked that they found my arguments insightful and convincing. But they didn't say that to an audience anywhere near the numbers which heard me just being dumped-on. So the overall outcome runs, for me, I estimate
500? people hear the positive
10,000? people hear the negative
Whatever the precise numbers, I'm sure the negative outweighs the positive by more than an order of magnitude. I wouldn't be surprised if it's two orders of magnitude.
Someone with a comparable 10,000? reader audience - e.g. a popular blogger, or net journalist - can fight back. They can BE HEARD replying. Typically, I can't. And moreover, that number of people hears them all the time, so they generate comparable positive reputation. Almost nobody hears my efforts so that work doesn't generate anywhere near the positive reputation necessary to withstand the tearing-down from something such as the above. Yes, a few hundred people hear it, but they are a very atypical sample.
Now, abstractly, this may be tolerable when it's just name-calling. But my censorware activism constantly causes me stress concerning its legal risk and the possibility of a lawsuit. Yes, the work may be good for civil-liberties, but it's bad for me. For about the whole time I've been doing it, I've been deeply worried by the thought that if I DO get sued, I'll just be facing a prospect of overwhelming smears and attacks which I'll never, ever be able to counteract. In part because of the pounding I get from the result of this process of being portrayed so negatively. And given the CIPA decision, said thoughts have intensified, and which interacted deeply with this event.
The answer seems to be, don't do any of these things. NOT, do only those things preached to me as worthy. Just get rid of it all. This bothers me.
My sins have come back to haunt me. John Gilmore has a front-page post on Lessig's blog, where he rebuts criticism of his actions in part by trashing me as a troll.
It's been interesting reading. I'd like to respond. I suppose the obvious place to start is with Seth Finkelstein's trolls. (Of course he is doing what he accuses me of - making outrageous statements and then chuckling when people take them seriously).
Some people here (including Mr. Troll) think that the minor risk that someone on the plane will have a panic attack after reading a tiny button, makes the button a "safety" issue, as if I had falsely cried "fire" and risked starting a stampede.
Well, yes, I do. The risk is foreseeable, and one can trivially take off the button, and the risk is eliminated. No-brainer. That's very much what I think.
But I have, for all intents and purposes, ZERO ability to shout this to a zillion people and defend myself against being called "Mr. Troll" (wasn't me who got an airplane turned around and started crying censorship over it!).
The way to success is saying simple, popular, demagoguery. The right thing for me to do was to join the chant-and-rant, to cheerlead along the lines of
"Another atrocity in post-Constitutional America! It's a terrible 9/11 loss of freedom, when a man can't even wear a "Suspected Terrorist" button on an airplane. A button's part of who you are, just like being Middle-Eastern or Muslim. How can an airline dare infringe on making political statements about being a suspected terrorist, in the name of "safety" and "security"? We must shout to the world about the grave Ashcroftian injustice here!"
Or at least keep my big mouth shut. Instead, I was dumb. I admit it. I said what I thought, which was that John Gilmore was being a troll. In my head, I know better than to do these things. But I just haven't taken the message to heart.
I have now got 1) John Gilmore 2) Brad Templeton 3) Larry Lessig, all somewhere between mad or unhappy at me. These situation are my undoing. I haven't learned that in politics, you line up or suffer the consequences.
Oh, I can attempt to defend myself by posting a comment somewhere, or my own blog, to the whole wide range of audience of dozens of readers. Whoop-de-doo.
It's not that, at some level, I didn't know I was playing with fire. Rather, in terms of heat and kitchens, I'm way too underpowered to survive. It's like a safety match versus a flamethrower.
Second session: Peter Davies, an very impressive ex-industry lawyer who's a fellow here at OII, reviewed the Felten case. He made the very good point that IP issues have become dominated by more hyperbole than serious debate. Mr Davies and I disagreed, however, about the impact of the DMCA anti-circumvention on research. There have been multiple research projects that we've decided not to pursue or to publish, despite our belief that the information would be useful, because of our fear that the method of garnering the information could expose us to DMCA liability. The counter-point: that we wouldn't really get sued and that there's not so much to be worried about. Maybe so.
I've seen this argument many times. In fact, it's a good example of what I just discussed as stage one of the three stages of a free-speech lawsuit - "You won't get sued". For how I tend to reply, see my old blog entry about the "chicken little" copyright argument:
I have a standard offer for lawyers who write things such as the "chicken littles" paragraph above. I say: Since, according to you, there is no risk, well then, there should be no problem at all for you to agree to represent me pro bono for any relevant charges arising from my censorware work. No risk, right? So there's no risk in your making such agreement, right? Here's how you can show you believe it yourself, when there's a risk to you!
I have yet to find a lawyer, who makes derisive comments like that quoted remark, who will then take me up on that offer. ...
I was going to segue into one of my stories about lawyers telling me there was no risk to something, when it suited their advocacy position. But a quick search turned up the Peter Davies IP paper! (I love the Internet, this is why I spent so much effort in my life to try to keep it free and open). The key passage is:
I find this David and Goliath picture somewhat unconvincing because, as I said, it was Professor Felten who sued the Record industry and not the other way around, secondly there are clear exceptions permitting use of works for educational and research purposes, and thirdly, a few minutes' research on the Internet into these controversial cases reveals an astonishing volume of vitriolic comment and organised campaigning against the rightholders.
Now, I know I should be veddy polite, but it's going to take me a page just to go through in this paragraph. From the top...
Felten who sued the Record industry and not the other way around
This is improper moral equivalencing between a lawsuit assuring the ability to publish, and a lawsuit threatening the ability to publish. If the Felten lawyers had won, all that would have happened is that the RIAA would not have been able to sue the various researchers for publishing. If the RIAA had sued, all the "David"s would immediately have to deal with years of PERSONAL legal liability. The sentence above seems to require that one take no defensive legal measures when threatened.
clear exceptions permitting use of works for educational and research purposes
It's unclear if this means traditional copyright fair use, or the narrow DMCA exceptions. I think from the phrasing it's the former, but I'll deal with both. Traditional copyright fair use is not a defense to the DMCA. This has been repeated in many decisions, references if needed. The DMCA exception for "(g) Encryption Research" is a horribly complex and convoluted tangle, which is not at all clear. And hardly the basis from which to deny all potential liability.
thirdly, a few minutes' research on the Internet into these controversial cases reveals an astonishing volume of vitriolic comment and organised campaigning against the rightholders.
Let me see if I understand this clause - the vitriolic comment contributes to NOT being David and Goliath? Wouldn't a David and Goliath situation quite naturally generate vitriolic comment? (I can just hear a Monty Python type skit "Can't be vitriolic, you know, David. It's not done to be angry. The proper response to facing Goliath is a stiff upper lip. That will go a long way to showing how you're truly overmatched") As to "organised campaigning against the rightholders", well, as I write this, the techie news is filled with reaction against perhaps the largest subpoena carpet-bombing ever seen - certainly the largest that nonlawyers have ever seen. And some of that comment is extremely vitriolic.
Again, that's detailing one paragraph, and I'm tired already. I'm unable to convey the emotion of seeing the potential for years of devastating litigation, so airily dismissed.
A while back, I wrote an entry about a "Slashdot Reflect", when many hits came to my site from a Slashdot discussion thread. In another example, I just saw a similar reflection. There was a burst of hits from an article - ironically posted by Michael Sims - which in part linked to a GrepLaw feature, a two-weeks-old Lessig interview, and in said interview discussion I had posted a comment. Follow? From Slashdot to GrepLaw to discussion comments. Where I had posted one of the comments. And that generated enough hits to my own site to stand out.
Y'know, no matter what people say in terms of preaching pollyanaism to me, it's incredibility dangerous that Slashdot puts this kind of "journalistic" power in the hands of someone who first held hostage all Censorware Project material, and when that failed (primarily, I believe, because I partially mirrored the material!), he domain-hijacked it - yet still, knowing all this, Slashdot de facto supports Michael Sims.
It's amazing. There's absolutely no downside.
Every time I do the mathematics on what I could face, in terms of hatchet-job when being sued, I shake my head. To risk years-long lawsuits for censorware work, with enormous sniping every step of the way, with no cost to the attacker, and yet there is no possible benefit to me ...
It's not worth it.