July 31, 2004

JibJab vs. Ludlow - Court Info

It's true - from the Court electronic database (no link, since subscription needed):

                            U.S. District Court
                  California Northern District (San Jose)
                 CIVIL DOCKET FOR CASE #: 5:04-cv-03097-PVT

   Jibjab Media Inc., v. Ludlow Music, Inc.,
   Assigned to: Hon. Patricia V Trumbull
   Referred to:
   Demand: $
   Lead Docket: None
   Related Cases: None
   Case in other court: None
   Cause: 28:2201 Declaratory Judgement
                                            Date Filed: 07/29/04
                                            Jury Demand: Plaintiff
                                            Nature of Suit: 820 Copyright
                                            Jurisdiction: Federal Question

[ Update: EFF announces JibJab / Ludlow lawsuit: http://eff.org/deeplinks/archives/001782.php ]

By Seth Finkelstein | posted in copyblight , legal | on July 31, 2004 04:24 PM | (Infothought permalink) | Followups
July 30, 2004

Blogging, Democratic Convention, and Reaction

[Given the Big Media reaction, maybe I can write this without A-list revenge]

Many (though by no means all) things in life can be clarified by mathematics, if properly understood. There are some basic principles that are key to keep in mind: For example, everyone can't be above average. Or, if there are N pigeons and K holes, and N > K, at least one hole *must* have two pigeons.

Don't laugh. A simple calculation from the latter: If there are 15,000 journalists and approximately zero news stories ... The outcome of "BLOGGERS AT THE CONVENTION" could not have been other than it was.

The blog-writers who in fact do journalism, were stuck in an event where there was no news, so they spun their wheels. The bloggers who do diary-style writing, were doing diary-style writing. Which was as interesting as you'd find it otherwise (note the deliberate ambiguity of that statement). All was as it must be, could only be, any hype to the contrary.

When people speak of "bloggers as the new pamphleteers" or some such, that almost always has a patronizing undertone to me. I hear an unvoiced aspect of "Aren't they C-U-T-E!". Like what you would say to a child doing finger-painting. "That's such a gorgeous picture, err, blog-post. Maybe someday you'll be a famous artist, err, pundit". It's like "Model United Nations" or "Class President". It's not meaningful in terms of power, except perhaps as play-act training in how to behave in those roles. And the flip-side of the "Junior Achievement" expectation is the "Juvenile Delinquent" archetype, those rotten kids today who have no standards, not like their elders.

In the 18th century, being a "pamphleteer" meant you had the comparative social position not only to engage in a life of leisure (very rare), but even the wealth to pay to have your political views distributed to others people (even rarer). A significant amount of the population wasn't even literate, or barely so. It was discussion among the upper classes, not the rabble.

It's all a bit like calling people who own their houses: "the new plantation-masters". Or not understanding who is a really a "gentleman".

The pamphlet demanded attention. But this was because the mere fact of being able to produce it was proof that you were rich and educated. Which then strongly implied you were worth listening to. In more sociological terms, the pamphlet was not just the message, but also a token indicating that the pamphleteer was likely socially influential. However, the influence didn't come from the pamphlet _per se_, but rather from the wealth and influence it represented. And obviously, if the mere fact of production eventually becomes so cheap that it's widely available beyond the tip of the social pyramid, it no longer represents an indicator of being a worthwhile speaker.

The blunt question of readers is always "Why should I read you"? They're asking, what power and influence do you have, what intellectual worth do you possess, what is your place in the social hierarchy? It's not impressive to answer: "Because I am a unique and special snowflake".

You're not cyber-revolutionaries. You're a freak show.

By Seth Finkelstein | posted in cyberblather | on July 30, 2004 11:59 PM | (Infothought permalink) | Comments (8)
July 29, 2004

"ACMD" (reverse DMCA) in Apple vs. Real Networks

The copyfight Daily Memo today is about the DMCA legal posturing between Real Networks and Apple over interoperability. Yadda, yadda, naughty-naughty, potkettleblack.

Me too.

I'm amusingly reminded of the SF story "Narapoia", where a character has a feeling that he's following someone, combined with a "strange feeling that people are plotting to do me good". Apple is upset that a rival *encrypts* files to Apple's proprietary format. That is, usually companies complain when people *decrypt* their proprietary format, making files formerly encrypted now free. But here, Apple doesn't want files being put into their proprietary format.

I don't see this as a DMCA violation. Apple wants an "ACMD" (reverse-DMCA). Nobody shall encrypt a file, without the authority of the DRM systems owner ...

By Seth Finkelstein | posted in dmca | on July 29, 2004 11:59 PM | (Infothought permalink) | Comments (3) | Followups

Apple FairPlay, DMCA, and circumvention arguments

Ernest Miller discusses the DMCA and encoding songs in Apple FairPlay digital restrictions management:

However, if I use Real's Helix DRM to encode my music, then shift the DRM to FairPlay with Real's new software, I now have a FairPlay-encoded file without having signed a contract with Apple giving them authority to change FairPlay. If Apple now changes FairPlay restrictions, they would be doing so without the authority of the copyright holder, that is, me. So, I should, theoretically, be able to sue Apple for changing FairPlay restrictions under the DMCA.

My take: This is a convoluted version of an old "argument" sometimes put forth that purported to show that the DeCSS case was invalid. The story ran like this:

"The DMCA talks about decoders. But it doesn't say anything about encoders. Suppose I take a DVD movie for which I am the author and which I own the copyright. I then encode my own DVD movie with the *CSS* algorithm (that is, I use only an *encoder*, not a *decoder*). I now have a CSS-protected DVD. Thus every DVD player counts as a circumvention device, because they can play my DVD without my authority as the copyright owner! *GOTCHA!*"

What's wrong with this? Though of course it's appealing to the programmer mindset, I think the formal flaw is in the definition of "circumvent". The courts will look to the design of the system, grounding that in the "authority of the copyright owner".

The argument then basically reduces down to "Assume I get a unlicensed FairPlay encoded file of my own. If Apple changes FairPlay, that's now a circumvention device against my rights".

Per above, I argue that if Apple changed the FairPlay system with the consent of all copyright owners which it has formally licensed the system, that change wouldn't be circumvention. Such a change won't be made into circumvention by having some unlicensed uses of the system.

And realistically, the courts are going to draw exactly this distinction, as with the Chamberlain vs Skylink (garage door opener) case.

It circles back to what I mentioned recently, that copyright isn't logical in the abstract, We've only had it pounded into us not to think about that, because to do so means you're a Commie insufficiently respectful of "property" rights.

If any logical hack can be resolved by simply saying "the defendant is a bad guy, so he loses", then the courts won't have a problem with it.

By Seth Finkelstein | posted in dmca | on July 29, 2004 01:13 AM | (Infothought permalink) | Comments (1) | Followups
July 27, 2004

Google and Supreme Court argument revisited

Walt Crawford has released yet another edition of his library 'zine (not blog) "Cites & Insights", for August 2004. He kindly mentions me, for Google and censorware discussion. I may write more later, but one quick note is apropos today regarding Google. In discussing my examination about the Google silliness of the Free Porn, err, Justice, Department "evidence" in the "COPA" Internet censorware law Supreme Court case, he notes:

These arguments took place in early March 2004. Solicitor General Theodore Olsen, arguing to overturn the injunction, used a web search (probably Google) to illustrate the extremity of "online smut." Type in the words "free porn" and you get a list of 6,230,000 websites, he said: "I didn't have time to go all the way through those sites."

The oral argument transcript confirmed that it definitely was Google being used:

I did the same, this again is outside the record, but I did this, anyone can do this, the same experiment over the weekend. I went to Google and I typed in disable filter and you push the button and you will get a screen full of programs that will tell you step by step how to dismantle the computer so your parents won't know about it. It is that easy, and you can put it back on.

Amusingly - or maybe not - Solicitor General Olsen is also wrong again here. While you can find instruction pages, they're way out of date, and so not exactly good evidence for anything. Don't believe everything you Google on the Web. Even if you're making an argument before the Supreme Court.

By Seth Finkelstein | posted in google | on July 27, 2004 11:59 PM | (Infothought permalink) | Followups
July 26, 2004

Google IPO price

Google's IPO price is now reported to be $108 - $135 per share (via John Battelle). This is a very high value. The price-to-earnings ratio is given as 329. Comparison: Microsoft - 56, Yahoo - 110, Ask Jeeves - 54.7, large capitalization stock average (S&P 500), about 20.

In the interests of not echoing what everyone else is saying (besides run away), I'll repost a very long mailing-list message below (by someone else) discussing the issues of IPO pricing. Everyone knows that Google's IPO price is going to be irrational. The issue is who is going to capture that irrationality premium - the underwriters or the company itself? Google is running things so that the bubble-juice goes to them, not the money-bags. I suppose it's as good a place as any.


interesting-people message

Subject: [IP]"A few of my friends still believe it's good news whenever an
IPO skyrockets.It's not-- it's the best indication that people are getting ripped off."

* From: Dave Farber
* To: ip
* Date: Fri, 07 Mar 2003 15:06:31 -0500

------ Forwarded Message From: Peter Wayner Date: Fri, 07 Mar 2003 14:18:34 -0500 Subject: Re: [IP] Dan Gillmor: Quattrone clique disgraced Silicon Valley

Dave, I don't know if you've exhausted the IPO topic, but I spent some time recently working through the IPO process. A few of my friends still believe it's good news whenever an IPO skyrockets. It's not-- it's the best indication that people are getting ripped off.

Let me know what you think.


IPO Fraud

Posted by admin on Friday, March 07 @ 14:14:22 EST

It looks like the SEC and the investment community may be going after Frank Quattrone. Some may see this as a case of no good deed going unpunished because the man brought such a flood of capital to Silicon Valley, but others probably see it as a chance to punish someone guilty for ripping off many people. I can't speak to the specifics of what Mr. Quattrone has done-- that's the job for the government, but I have watched the IPO world for long enough to complain about the process in general. Enough of my friends worked for these so-called hot companies and enough of them have been hurt by the IPO process. It's time that things change.

The big problem comes when the shares soar on the first day. In the past, most people have seen this as some wonderful, hypeworthy event. The hard workers are getting rich. The initial investors are reaping big rewards. Everyone should be happy and the press usually blathers away about the strength of the IPO market.

Alas, that's so far from the truth. Many of the people are getting ripped off because money meant to help the company achieve it's goals is heading for the pockets of insiders. Yes, many of the great Dot Com companies were silly and doomed to failure, but many of them never got all of the capital the market intended for them. We'll never really know what was supposed to happen because the money never reached the front line troops.

I believe that mispriced IPOs that skyrocketed on the first day are a real moral and legal challenge for the technology industry and the capital markets. While I'm sure that the laws have plenty of loopholes that may let everyone escape to a life a leisure, I'm convinced that capital was misdirected by this mechanism and this misdirection was one of the problems that led to some of our major market failures. There are plenty of people out of work because their companies didn't have the capital to complete their business plans.

It's easy to work through the math and discover that much of the money that investors intended to go toward a particular company went, instead, into the hands of investment bankers and their chums. Let me take you through the steps of some hypothetical company, call it ultrametabetaelectrotech or UMBET for short. The bankers at J. Plutocrat and Fils convince the umbet dudes that going public is the right step.

Here are key decision points along the journey:

* 1-- UMBET and Plutocrats file for an IPO including a document listing all sorts of reasons why this is a truly risky venture that no one in their right minds would ever buy.

* 2-- The marketplace ignores all of the warnings in (1) and concentrates on the upside. The marketplace floods the Plutocrat firm with buy orders at anywhere between 20 and 100 a share.

* 3-- The fils at Plutocrat look at this order book and decide that they could sell 1 million shares at $40.

* 4-- The fils at Plutocrat ignore this reality and price the shares at $20.

* 5-- The dudes at UMBET decide to go along with this pricing. The company will get $20 million minus the 7% commission paid to Plutocrat. Each of the managers at UMBET don't really care what the price is because they each have 10 million shares in their pocket. The market will assign a fair price afterwards no matter what the initial price happens to be.

* 6-- The fils at Plutocrat start allocating the 1 million shares to others. They know from their information about the order book that the price will pop up to at least $40/share because of the demand. It might go higher. That means that every share they give someone is probably equivalent to $20 bill. As such, they allocate shares to people in these classes:

* a-- Great guys and gals.
* b-- People they owe money or favors. Politicians have been some of the lucky to get these shares.
* c-- Mutual funds that want to move money between funds.
* d-- Investors who want technology stocks and are willing to pay roughly 30% of the first day return back to the Plutocrats in inflated "commissions".
* e-- Others with malice aforethought.

* 7-- The Plutocrats tell investors that one way to get 1000 shares at $20 is to make a commitment to buy 1000 shares on the first day in the aftermarket. Investment banks like deals like this because it shows "support" for the shares.

* 8-- The IPO day arrives. The shares begin at $20. Investors start buying and run up the price to $40. Everyone is happy. Everyone talks about what a success the IPO is.

Here's why I think this hypothetical IPO was a fraud:

* The company only ended up with $20 million in the bank to support expansion and the pursuit of the business success despite the fact that many of the investors thought it should be allocated $40 million.

* People who bought on the day of issue paid $40/share, but only $20/share went to the company. They lost 50% right off the bat. Other investors flipping their shares walked away with it.

* People who bought in step (7) paid an average of $30/share and only lost $10/share to the "inefficiencies" of the IPO process. They may think they've got a great 33% gain on their investment on the first day. ("Boss, we paid an average of $30/share for this and it now trades at $40." "Simpson, I like the cut of your jib.") This is a charade. There's only $20/share left in the company. They've really suffered at 33% loss!

* The mutual funds in (6c) are robbing the investors in one fund in a family to reward another. These funds often generate outstanding returns in new funds by allocating the underpriced shares to the new hot fund in the family. The investors in the old, tired fund end up with shares priced in the after market.

* The payoff recipients in (6b) are almost sure to recognize the $20/share they receive as a pure gift. If they don't count it as a debt, the Fils at Plutocrat aren't doing their jobs right.

* There may be some truly great folks buying at step (6a), but I'll let the readers decided the probable size of this group.

* The umbet management dudes in (5) just let someone walk away company assets (shares) worth $40 a piece for a price of only $20. If that's not a breach of fiduciary duty, I don't know what is. To make matters worse, some of the lucky folks are called "friends and family".

* The Fils in step (4) ignore good faith offers of a higher price. That sounds like a breach of fiduciary responsibility to me.

Recently, the news stories focus on prosecuting people for spinning or destroying documents. That may be the right legal strategy because the legal system probably protects the underwriter even when coming up with a completely bogus price.

The sad fact is that there is a better way. Bill Hambrecht has been pushing his OpenIPO concept for some time, but Wall Street resists it. Instead of allocating shares to the lucky insiders, the system chooses the people willing to pay the most money. The cash flowing into the company is maximized and the fraud is eliminated.

I've discussed this topic with others in the industry. Some people agree, but others tell me I'm flat out wrong. There needs to be the slop in the system to reward everyone or else people won't buy the shares at all. I don't believe this. It's been well known for some time that people who buy IPO shares in the aftermarket are usually net losers, at least on average. Most savvy investors know that the aftermarket is a sucker's game. The practice of allocating shares to trusted insiders and investment friends was hurting the aftermarket before the crash and now it's completely destroyed the IPO business. There are no IPOs is because no one trusts the mechanism anymore.

Archives at: http://www.interesting-people.org/archives/interesting-people/

By Seth Finkelstein | posted in google | on July 26, 2004 03:02 PM | (Infothought permalink) | Comments (1) | Followups
July 24, 2004

S.2560 (IICA/INDUCE Act) and "substantial noninfringing use"

During the recent IICA/INDUCE Act hearing, there was much discussion about the "Sony" standard concerning the copyright defense for product-makers of having substantial non-infringing use. For example, Senator Hatch stated:

Second, S. 2560 uses a proven model for structuring secondary liability. The substantial-noninfringing-use rule that Sony imported from the Patent Act coexists there alongside liability for intent to induce infringement [,] a concept that the Patent Act calls active inducement. This proven model can address cases of intent to induce infringement that were explicitly not covered or addressed by the Supreme Court in Sony.

In the above quote, I assume he means the following S.2560 paragraph:

`(3) Nothing in this subsection shall enlarge or diminish the doctrines of vicarious and contributory liability for copyright infringement or require any court to unjustly withhold or impose any secondary liability for copyright infringement.'.

However, I believe the recent history of such claims provides a substantive argument that he is mistaken. Remember, we've been here before, with the DMCA, in the infamous 1201(c)(1) passage (emphasis added):

* (c) Other Rights, Etc., Not Affected. -

(1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.

The INDUCE Act may preserve the "substantial non-infringing use" standard of _Sony_, in the same way the DMCA preserved fair-use: only as a very abstract theory, not in practice.

Let's recall what the DeCSS case ruled:

When Sony was decided, the only question was whether the manufacturers could be held liable for infringement by those who purchased equipment from them in circumstances in which there were many noninfringing uses for their equipment. But that is not the question now before this Court. The question here is whether the possibility of noninfringing fair use by someone who gains access to a protected copyrighted work through a circumvention technology distributed by the defendants saves the defendants from liability under Section 1201. But nothing in Section 1201 so suggests. By prohibiting the provision of circumvention technology, the DMCA fundamentally altered the landscape. A given device or piece of technology might have "a substantial noninfringing use, and hence be immune from attack under Sony's construction of the Copyright Act--but nonetheless still be subject to suppression under Section 1201." [FN169] Indeed, Congress explicitly noted that Section 1201 does not incorporate Sony. [FN170]

That is, the line with the DMCA, is that you're not being charged with the old infringement offense, to which one can defend via fair use. You're being charged under the all-new circumvention offense, which doesn't have that defense. But the old defense isn't affected, since if you were changed with the old offense, you could still plead that, got it? (I call this a "legal hack").

So, I think in any case under the IICA/INDUCE Act, we'd get a similar line: _Sony_ standard ("substantial-noninfringing-use")? What _Sony_ standard? That's a defense to "vicarious and contributory liability". You're not being charged with "vicarious and contributory liability". You're being charged with the brand-new INDUCTION liability. But if you were charged with "vicarious and contributory liability", you'd have a great defense under the _Sony_ standard, you betcha. But how sad for you, that you're being charged for inducing-infringement, for which that defense doesn't exist. After all, the whole reason for the new law was to create a new offense for conduct just like you're being charged with, got it?

Having seen this happen so recently, it's quite reasonable to believe it'll happen again.

By Seth Finkelstein | posted in copyblight , legal | on July 24, 2004 12:46 PM | (Infothought permalink) | Comments (2) | Followups
July 22, 2004

Copyright Is Broken And Nobody Knows How To Fix It

[Not that this is an especially original insight, but today let's call it a classic, in the public domain even.]

So I've just listened to the IICA/INDUCE Act hearing, and been participating in the Freedom-To-Tinker discussion. For a while, I've wanted to write something about Walt Crawford's "Cites & Insights" library 'zine (not blog) Copyright special issue, which has extremely extensive discussion of recent copyright matters. After many, many pages of thoughtful (and non-echo-chamber) discussion, he finally concluded:

I believe in balanced copyright. If that sometimes results in coverage that seems to say "a curse on both your houses," that's because sometimes neither extreme makes much sense.

I kept thinking about this. Because, copyright abstractly makes no sense. By this, I don't mean something silly, not property-is-theft. Rather, I mean something deep, that the technological change has completely disrupted the extremely complex set of functional compromises that made copyright work in practice (for example, formerly being almost entirely a restriction on businesses, but now turning into a control on users and technology development).

Which brings us to the INDUCE Act. Much too much discussion basically boils down to posturing. As I've said in my DMCRA hearing impressions

It would great if everyone could just take a loyalty oath at the start and thus get beyond the endless querying about whether they believe in some sort of heretical radicalism. Something like:

"I am not now, nor have I ever been, a member of the Communist Party. I pledge allegiance to copyright, and to the intellectual property system for which it stands, one compensation, responsible, with property and profit for all."

Let's all assume we want artists to be fairly rewarded, and bad people punished. As well as peace on earth and goodwill to all. Now what?

For me, the most chilling moment of the hearing was when Hatch outright said, "Something has to be done here". The problem is that there may be no equitable solution which both preserves openness and current industry profits. Repeating that these both should be served, doesn't make it so. We have improvement in the ability to exchange information again colliding with a social regime which says information must be controlled. I'm on the openness side, but so what? Who listens to me? (except in extraordinary circumstances).

Nobody has the answer. Sorry, I sure don't :-(.

By Seth Finkelstein | posted in copyblight | on July 22, 2004 04:31 PM | (Infothought permalink) | Comments (1) | Followups

EFF Deep Links on Barbara Nitke et al. v. John Ashcroft, 01 Civ. 11476

EFF Deep Links has an article "Will Obscenity Ruling Break Online Anonymity?", about the Nitke vs. Ashcroft case regarding obscenity law, and "community standards" applied to the Internet. I'm mentioned prominently, thanks folks:

"But if the outcome is less than stellar, it could affect a lot more than Internet pornography. In fact, many forms of online anonymity that we take for granted would be placed in peril. Experts testifying on behalf of the government have argued that community standards can be maintained on the Internet through the pervasive use of geolocation software. Seth Finkelstein has argued on behalf of the plaintiffs that implementing such software is cost-prohibitive and that the software itself is inaccurate. But we may nevertheless be facing a future where we are forced to reveal where we live in order to access websites with content that could be interpreted as obscene in some communities."

By Seth Finkelstein | posted in legal | on July 22, 2004 02:01 PM | (Infothought permalink) | Followups
July 21, 2004

Censorware'd Hotel WiFi and Georgia libraries - blogs blacklisted

Matt Haughey describes his experiences with a censorware'd Hotel connection. This was using SmartFilter, and it seems it has the same quality as always. Given the blacklist categories in place and how sites were blacklisted, the net result was that many, many blogging sites were blocked (including his own famous site, MetaFilter)

I've been told this system is in place in every public library in Georgia (internet filters are currently required on a federal level or they lose their funding if I remember correctly). I know libraries have a longstanding problem with random folks viewing porn at free kiosks, but I think blocking a major blog service like Blogger is taking this too far. We've already seen examples of voices only heard through blogging, like the Homeless Guy and Salam Pax. They use their blogs as their secret channel to communicate to the world, and it's not hard to imagine someone with an unique perspective on life that was limited to free internet use at a library.

And I checked, that's correct. In fact, even the blacklist categories which include almost all the examples he found, are widely used in the Georgia public libraries (http://www.georgiafamily.com/schools_and_community/libraries_filter_porn.shtml).

The Middle Georgia Regional Library is blocking five of SmartFilter's thirty web site categories, while Houston County is blocking three. Both libraries are blocking the categories of Sex (includes soft- and hard-core pornography and sex discussions), Chat (Web-based chat groups, including chat rooms, instant messaging, and message boards), and Extreme/Obscene/Violence (includes violent, gory, or horrific material related to sex, bodily functions, obscenity, and perverse activities). The Middle Georgia Regional Library is also blocking the Criminal Skills category (sites that give methods for or promote illegal, criminal activities such as bomb-making, computer hacking, murder, burglary, and rape) and the Drugs category (sites that provide information on the purchase, manufacturing, and use of illegal or recreational drugs like marijuana, cocaine, and LSD).

He concludes:

I'm often jokingly comparing bloggers to pamphleteers of yore, but within blogging there are definitely some significant cases where people have a message to get out that can change the world. To find out that an institution of democracy like a library might be barring someone from sharing their perspective with the world saddens me. The irony that I had to go to significant means to even post this entry (my blog software has a *.metafilter.com address) isn't lost on me.

I got a link at the end of the article - thanks!

And remember, I had a SmartFilter analysis tool, but could not publish it. Sigh ...

[Update: Grammar/typo fix (my own), BoingBoing technorati-bait]

By Seth Finkelstein | posted in censorware | on July 21, 2004 11:25 PM | (Infothought permalink) | Followups
July 20, 2004

"Cleanfeed" (government censorware for UK ISP) now in effect

The "Cleanfeed" program went into effect in the UK, the system where :

... the largest internet service provider in the country [BT], with some 1m broadband subscribers, is setting up complex filtering software in its system that will refuse access to a list of web sites that are suspected of containing child pornography.

According to the BCC: (thanks, Andreas Bovens)

BT said in its first three weeks its new system, which bars access to particular sites, registered nearly 250,000 attempts to view web pages containing images of child pornography.

That represents an average of about 10,000 requests each day.

Now compare reactions where:

Pierre Danon, chief executive of BT retail, said the company was blocking access to hundreds of sites which had been identified by the Internet Watch Foundation.

But he said BT did not track those trying to log onto the sites or pass their details on to police.

And he said the company had no way of telling how many users were navigating to such sites by accident.

"We don't know their motives or who does it and honestly we don't want to know," he told BBC Radio 4's Today programme.

A BT spokesman added: "It could be that one dedicated pervert is making hundreds of attempts to get on websites each day."


The BBC's Neil Bennett said even allowing for some people making repeated attempts, it is clear thousands of people are trying to see such material daily.

This is one of the biggest problems with censorware debates. Inflammatory numbers are bandied around with NO INDEPENDENT REVIEW. It's arguably even illegal for anyone not working with law enforcement to even attempt to check the assertions. The flashy statistic is thrown into the public discussion, and will be used, but anyone who attempts serious analysis of it is in severe legal peril.

Oh well. I've quit.

[Update: Some skepticism: ISPA seeks analysis of BT's 'Cleanfeed' stats ]

[Update 2: More skepticism: BT on child porn stats ( "pure speculation") ]

[Update 3: Still more skepticism: Porn filters ineffective against Tribbles]

By Seth Finkelstein | posted in censorware | on July 20, 2004 11:59 PM | (Infothought permalink) | Comments (3) | Followups
July 19, 2004

Nashua Telegraph : "Practicing law isn't such a crime"

The Nashua Telegraph has an editorial today, involving my essay "The first thing we do, let's kill all the lawyers" - it's a lawyer joke :

Practicing law isn't such a crime

As long as there have been lawyers, there've been lawyer jokes. Popular blogger and Internet freedom advocate Seth Finkelstein makes that point in an insightful analysis of the famous Shakespeare quote he posted back in 1997.

Somebody read me!

[OK, it's an echo - forgive me.]

By Seth Finkelstein | posted in misc | on July 19, 2004 10:13 PM | (Infothought permalink) | Comments (1) | Followups
July 16, 2004

Fair Use, Copyright, and a Mike Godwin story

I'm going to endeavor to make a point concerning the recent "use it or lose it" discussions regarding making copyright and fair use determinations. I'll try to do it in a somewhat non-traditional way. Let me tell a story from my experience. Warning: this is not a pretty story. But then, neither is the prospect of being sued.

In late 1995, when I first decrypted censorware blacklists, I had the misfortune to ask one of the most then-famous net lawyers, Mike Godwin, for advice about legal issues (this was a big mistake, because of the politics of censorware-is-our-saviour, but that's another story).

The relevant point to the current discussion is that Mike Godwin had, at that time, the idea that censorware blacklists were not subject to copyright. His reasoning was, briefly, that the blacklist items were "facts", and the blacklist information itself had no copyright. I'm not breaking any confidences or revealing much of a secret here. He expressed that view repeatedly and, err, forcefully, some years later in a long mailing-list discussion. This was related to the lawsuit in 2000 against the programmers who reverse-engineered CyberPatrol (a censorware/"filtering" program), AND PUBLISHED IT (I had similarly reverse-engineered it earlier, but not published anything except a few results, and those laundered through journalists - another story/mistake, sigh). I didn't argue with him in 1995. He wouldn't have listened. Privately, however, I thought his advice was wrong. One sad implication of his views though, was that since he knew, with supreme confidence, that censorware blacklists were not copyright-able, and knew this with all the arrogance that an egotistical lawyer can muster, my disagreement with him must've been simply a reflection of my cowardly nature, or worse. How could it be otherwise?

But in 2000, the subject was a big public discussion. And, Mike Godwin was sooo confident of the rightness of his views on lack of copyright of censorware blacklists. Bear with me, I'd like to give the flavor of the absolute certainty with which this was proclaimed:

I'd happily go to court on that issue. And I'd win. Facts are facts, and are not copyrightable.


But the fact of what is blocked is not copyrightable. It's just a list, and no deeper a list than the list of names in Feist.


If I were to post that entire list of sites in a different order from that used by CyberPatrol, for example, I would not be a copyright infringer. It is only the particular expression of that list of URLs that is protected by the Copyright Act -- not any and all instantiations of the same information.


I don't believe that my own [hypothetical] publication of what CyberPatrol blocks is infringing, even if I include all the sites they block, so long as I don't duplicate their precise expression of their list.


I should add that I understand why censorware's defenders may be arguing for the more expansive view of copyright, in order to protect CyberPatrol's right to sue in copyright.

But I'm certain I'm right to argue that CyberPatrol is wrong to assert a copyright interest in the mere fact of whom they don't like.

You friends of CyberPatrol, have at me!


When James S. Tyre gave him some factual corrections, e.g.

"the list itself includes the blocking categories"


Mike Godwin responded in typical abusive fashion, even accusing James Tyre of unethical behavior (this was highly ironic, the coal-bin calling the bone-china black).

Are you making the pro-CyberPatrol argument that the blocking categories are creative expression, James?

Do your clients know you're doing this?


I should note he was flamed hard for this, by law professor Peter Junger

I am afraid that Mike Godwin is us reverting to his old tendency of making nonsensical arguments. ... [later] And anyway, if the lawyers for our side go into court convinced that there is no merit in the other side's arguments, then we are going to be the ducks in that barrel.


And me, for which I make absolutely no apologies:

In terms of treatment of clients, Mike, you are a disgrace to your bar certificate. I seriously considering bringing an action against you for breach of attorney-client privilege, for your various misuses of confidential information. And it was in fact *Jim Tyre* who convinced me not to do it.


Anyway, this "discussion" went on for quite a while, good and bad. And finally, after several distinguished lawyers who specialized in intellectual property law, and prominent authors in that legal field, all told Mike Godwin he was wrong, he conceded.

After speaking with my friend Pam Samuelson at Computers, Freedom, and Privacy here in Toronto, I've come to the conclusion that Bruce Hayden and others were right, and that I was wrong, with regard to whether Feist should be read as protecting compilations of facts based on selection alone (apart from arrangement).


There was pointedly no apology to several people most abused, though. Especially the programmer (me) who would have been very badly off to have relied on his wrong copyright advice earlier, in 1995. In fact, as usual, I lost reputation-points myself (yet another story). The eventual court findings were horribly against fair use and in favor of copyright claims.

Why do I go through all this? Well, the speaker here was not (just) some flamer. It was net.legend Internet lawyer Mike Godwin. And many people who said he was wrong were showered with accusation and vituperation.

I'll put the moral of the story as this:

No matter how many times a theory is repeated, that doesn't make it correct. And the people on the risk end if it's wrong have a right to doubt it. Because it'll be them being sued.

There's a lawyer joke: After being convicted at trial, a criminal defendant turns to his lawyer and asks "Where do we go from here?" The lawyer replies, "We? I go back to my office. You go to jail."

By Seth Finkelstein | posted in censorware , copyblight , memoirs | on July 16, 2004 09:44 AM | (Infothought permalink) | Followups
July 14, 2004

"OutFoxed" and taunting Br'er Fox

OutFoxed's saga continues, and right on schedule comes Lessig's response, the stirring statement about fair use. Now, just speculation, how do you think FOX executives, and Bill O'Reilly, might react to the following lines?

Fox claims it is "fair and balanced." Is it?

Bill O'Reilly promised Fox viewers that he would report the news of the war "without an agenda or any ideological prejudice." Did he?

It is as shameful for Fox to sue Al Franken for using "fair and balanced" as it is for Michael Moore to threaten to sue his critics for defamation. ...

And as to whether three days was enough time for Fox's legal department to respond to a question from the New York Times, come on. If its legal department can't muster a response to a simple question in three days, I'd be happy to advise Fox where it might find faster, more efficient lawyers.

My contribution to the echoing: Read Lessig's piece as a proposal for the legal arguments he'd like to make in court, if FOX will be so kind as to give him the opportunity.

By Seth Finkelstein | posted in copyblight | on July 14, 2004 11:59 PM | (Infothought permalink) | Comments (1) | Followups
July 13, 2004

Dan Gillmor vs. Trolls

Dan Gillmor has a troll problem on his blog, to which he's seeking a solution. Good luck.

I've been following the discussion with some interest. I've seen the troll postings, and it's not the worst as trolls go. Not the sort of Slashdot crowd that crapfloods or posts racist and homophibic slurs. Mostly it's "merely" a bunch of false partisan personal accusations.

I've been trying to come up with something useful to say to him, but I'm basically at a loss. There's a sort of stock sermon I know by heart, having had it preached at me endlessly. It'd run: "Dan, you're a distinguished journalist, AND an A-list blogger, influential and respected. The troll has no credibility whatsoever. TAKE IT! Ignore the attackers. Be above it all. Show your good character by how classily you react even to the most vicious provocation. Put on a big fat happy-face, and never let on that it bothers you. Just smile, smile, smile, through adversity." (One can tell I've got a lot of material to draw on ...)

But I hate it when people wag their finger at me that way. It doesn't help, it's just another burden. So I want to practice what *I* preach, and reach beyond the cliche. Which unfortunately puts me back at not knowing what to say. Misery loves company? Try being the target of domain hijacking by a Slashdot "editor" ? That probably wouldn't be welcome advice either.

If there's anything my years of netnews/mailing-list/blog participation have taught me, it's that good discussion is a hard problem. Many people seem to underestimate just how hard it is. Here we have an A-lister who is devoting two front-page posts so far to the baneful effects of (fairly mild, comparatively) trolls. Question: What Does This Mean For Democracy?

And I submit this as one more example as to why the preachers and finger-waggers should refrain from preaching and finger-wagging at me. You likely wouldn't do any better if it were you, remember that (but I know this trick never works :-().

By Seth Finkelstein | posted in cyberblather | on July 13, 2004 11:59 PM | (Infothought permalink) | Comments (5) | Followups
July 12, 2004

"OutFoxed" and lawsuit briar patch?

OutFoxed is being thrown into the briar patch by Fox. I called it. Poke them, they jerk. See Ernest Miller's Outfoxed Rope-a-Dope Begins?

Quote the Editor and Publisher article:

In a statement handed out at the press conference by an unidentified woman, Fox News declared, "The illegal copyright infringement actions of moveon.org in cooperation with The New York Times, including 'cutting a deal' not to give Fox News Channel adequate time to react, is unprecedented." The Times, it said, in "taking orders from" a George Soros-funded Web site, "corrupts the journalistic process. This is the real story." It described Soros as "a left-wing billionaire currency speculator who funds many liberal efforts."

Now, let's note they haven't actually filed a lawsuit yet. In context, the above is pretty standard Fox trash-talk. They're not going to say "The First Amendment protected fair-use actions of ..."

But the pattern is clear. Here's my predictions on what to look for next. I don't know that this will happen, but it's what I'd watch for:

Lessig will release a stirring statement about fair use, free culture, remixing, etc. etc. Forget the blog A-list. A good portion of the media hates Fox, so they're going to run with this, and the general OutFoxed PR, for a combination of revenge against a rival, and navel-gazing blather about The Sad State Of Journalism Today. The key aspect to examine is how much the reaction seems to be saying in-your-face, you-don't-have-the-GUTS-to-sue-us. Because that'll be aimed at the executives, not the lawyers. Welcome to high-stakes litigation strategy.

By Seth Finkelstein | posted in copyblight | on July 12, 2004 11:59 PM | (Infothought permalink) | Followups
July 11, 2004

"OutFoxed" and Fair-Use Strategy

OutFoxed is a documentary exposing the working of Fox News. And given its backers, it's the Daily Memo from the A-list (e.g. Dan Gillmor, Lessig).

Donna Wentworth brought up the topic of "Fair Use It or Lose It, Part II", as part of strategy. The issue are clear. As Lessig has said "Fair Use is the right to hire a lawyer". Using even the smallest clip is a legal hassle, much less a critical documentary made from them. But I was puzzled for a while as to the reason everyone seemed to be talking-up a potential lawsuit against the film, in a tone which struck me as odd. But after some thought, I believe I understood what was going on.

Now, Fox is known to be run by ultra-wealthy ranters. These people are in the enviable position of being able to ignore when their lawyers tell them they have a stupid case, and sue anyway. Their power allows them to indulge themselves both in expressing their ire (via not having to worry about consequences), and the incredible burdens of a lawsuit (via not having to worry about costs). I suspect that's how the silly "Fair And Balanced" trademark Fox News lawsuit against Al Franken came about. Let's pause for a moment to let this sink in. The vast, vast, majority of people just have to take abuse, they have no effective way to defend themselves. A very, very, few have the resources to fight back. Here, we're talking about an elite so rarefied that they can not only bring an expensive lawsuit, but do it for, basically, pleasure.

Anyway, thinking the situation through, the strategy became clear. If there's no lawsuit, well, at worst there's some publicity and promotion, both for the issues of fair use and for the film itself. But if Fox does sue - the resources of the defending the case go into both fighting the good copyfight, and an extensive broadside against the current administration (Hmm, what a twofer! I perceive the logic, I do indeed.)

Myself, I wouldn't have ever thought to suggest a serious strategy possibility of: try to get super-rich jerks to bring weak cases against lovable defendants. But that's probably just a failure of imagination on my part. If the people who would actually spend the money to fight the case think it's a good idea, I have no quarrel with it.

By Seth Finkelstein | posted in copyblight | on July 11, 2004 11:59 PM | (Infothought permalink) | Comments (3) | Followups
July 09, 2004

Hatch's Hit List

Hatch's Hit List is Ernest Miller's consciousness-raising campaign about this copywrong:

When the Inducing Infringment of Copyrights Act (IICA, née INDUCE Act) first became news it was disparagingly (and rightfully so) compared to an infamous bill from 2002, the Consumer Broadband and Digital Television Protection Act aka CBDTPA aka Hollings Bill (after the Senator who sponsored it) (INDUCE Act = Son of Hollings?). One of the most clever attacks on the CBDTPA was a little thing Ed Felten came up with on Freedom to Tinker: Fritz's Hit List. ...

So, starting today, I will endeavor to post every weekday an example of a nascent technology that can be quashed by the INDUCE Act.

I had a bit of IICA satire that I thought over-the-top, but in the spirit of cheerleading, maybe today is the place to mention it. I proclaim:

[begin satire]

The INDUCE Act violates itself! You see, by definition, quote "`intentionally induces' means intentionally aids, abets, induces, or procures ...". Well, Senator Hatch intentionally introduced the INDUCE Act didn't he? He must have known that such a proposal would cause a public outcry, that it would make copyright infringement seem cool, rebellious, romantic. And hence a reasonable person could find, on the facts available at the time, that infringement would increase. So it's a self-referential contradiction, GOTCHA!

But wait, there's more - What's that you say? This is silly, because the goal, the intent, was obviously against infringement? But, aha, that's a "substantial non-infringing use" type of argument. We've just been told that standard isn't applicable. Such an exception would swallow the rule. Anyone could plead good intentions, just like they could always work up some front about non-infringing use. No, in order to give the law teeth, we must look at the effects of the actions (not conjectured effects by the proponent, note), and whether the action itself was intended. Obviously, nobody will ever say they intended inducement itself. So Senator Hatch is hoist on his own pet lard!

[end satire]

I know, I'll keep my day job ...

By Seth Finkelstein | posted in copyblight | on July 09, 2004 11:59 PM | (Infothought permalink) | Followups
July 08, 2004

Fair Use and Advocacy Strategies

Donna Wentworth at Copyfight writes "Fair Use It or Lose It" about a fair use request to Siva Vaidhyanathan:

The story in a nutshell: a professor at a Northeastern college asked Siva for permission to distribute a copy of a chapter of "Anarchist in the Library". [SF - elided, but perhaps critical, is an aspect of "to the entire incoming class"] "Of course," Siva replied, adding that [the professor] really ought not to have asked. The professor responded by forwarding to Siva a note from the college librarian, which warns firmly that "educational purpose is only one of the four determining factors, and that the courts have weighted one of them, the impact on the potential market, heavily in recent cases." Siva, horrified, runs the use of the book chapter through the four-factor test to show that the professor has a slam-dunk "case."

After thinking about it for a while, and checking a few fair use references, (particularly the book interviews case cited there), I decided Siva's analysis was probably right. But ... not so right that it couldn't reasonably be contested by an "aggressive" plaintiff. That is, I could see a publisher arguing that copying a whole chapter was too much, it'd be distributed to too many people, the book itself is quite new, digital copies even of a chapter could be hurtful to the book's market, and so on. I don't think it would be a "silly" lawsuit. A risk-averse person, or institution, would not be ridiculous to be feel they had a non-negligible chance of losing. The professor definitely wasn't wrong to ask. In fact that was the objectively right thing to do (i.e., I don't mean that in terms of morality, I mean there is enough doubt so they should indeed check about usage permission).

Note, regarding any irony of asking copyright reformers about using material, I strongly dissent from the concept that anyone should put too much stock in an author's good will or general policy advocacy. In the face of a prospective lawsuit, there is very little consolation in being able to say to a few friends, but-he's-a-hypocrite! (heck, some years ago, Mike Godwin had a habit of both arguing prominently that "Maybe libel law is obsolete", and at the exact same time, saber-rattling libel lawsuit at items which particularly offended him - and he'd happily explain why it wasn't a contradiction, why this time was different - every time!).

As to how to attack the problem, education, advocacy, assistance, reform, all are good ideas in themselves. But I'm afraid that my own experiences fighting for fair use make me even more pessimistic than Lessig.

By Seth Finkelstein | posted in copyblight | on July 08, 2004 11:59 PM | (Infothought permalink) | Followups
July 07, 2004

Democratic National Convention and Blog Coverage

So, the Topic Of The Day is that a few A-list'ish bloggers are getting press credentials to be Certified As Journalists for the purposes of the Democratic National Convention (see Jay Rosen's extensive essay Convention Coverage is a Failed Regime and Bloggers Have Their Credentials).

To sum up my view, in a few words:

Political Conventions == Pep Rallies

That limits the options. One can do a sort of anthropology, a dissection of the Deep Meaning Of It All. Or a General Reflection On The Body Politic. Or take a narrative approach along the lines of "What will the Young turks, The Marvericks, Those Wild And Grazy Guys And Gals, uncover that the Old Guard has missed?"

But if there is no there there, being there won't create a there (except in a self-referential navel-gazing manner).

Look, anyone who has the time and can afford to travel to a political party's convention, is doing it for some reason which puts them far outside the realm of ordinary citizen. It's their business in some sense. They're a journalist themselves, or want to be one, or do study of journalism, or associated in various others ways (selling people on ways to do journalism, counts, strongly). Nobody cares outside of this media incest orgy or the hardest-core political junkies.

Going further down that path leads to A-list revenge, so I'll stop here.

By Seth Finkelstein | posted in politics | on July 07, 2004 11:59 PM | (Infothought permalink) | Comments (2) | Followups
July 06, 2004

Update on "Fabricated" SmartFilter / Secure Computing Web Porn Study

Latest development in the story where SmartFilter / Secure Computing Web Porn Study is "Fabricated", from ZDNet Australia:

While the company's original statement claimed that no pornographic pages had ever existed in the .nu space, Semich conceded that sites featuring adult content using .nu domain names did still exist. "I admit some pornographic Web pages using the .nu domain name probably do occur, just not in the extremely inflated number given by Secure Computing," he said. Sites which hosted adult content would be deregistered when their current term expired, he added.

The approach taken by the Secure study has also been criticised by other market observers. "It's not helpful to characterise the size of the problem by the number of pages," said Chris Disspain, chief executive officer of .au Domain Administration. "They are not a valuable, sensible or helpful measure of what's going on." Like Semich, Disspain is concerned that confusion will arise between the registration of a domain name and where the site is actually hosted.

Secure Computing told ZDNet Australia it stood by the methodology used in the study.

Now, here's my question: WHAT METHODOLOGY?

Where is the data to be examined? Where is any ability to review their assertions? To do an independent examination?

"Studies" done on secret data are inherently suspect.

By Seth Finkelstein | posted in censorware | on July 06, 2004 11:59 PM | (Infothought permalink) | Comments (2) | Followups
July 05, 2004

Censorware usable for blog Denial-Of-Service Attack?

Michael Froomkin relates a censorware experience with some interesting implications:

Since the supreme court cares about the quality of blocking and filtering software, it may be appropriate to report that SiteCoach, the blocking software used on the internet kiosks in the lobby of the Amsterdam hotel I am staying in blocks Atrios for using the f-word, and the Volokh Conspiracy for "Forbidden Keyword free sox". Actually, the "o" in that last should be an "e" -- I'd post it more clearely, but that would just ensure I couldnt access my own blog any more.

Hmm ... "couldnt access my own blog any more". Now, his blog has the style where excerpts from recent comments are displayed on the front page, using the first few words of the comment. Suppose, as a comment, on seeing this, a malicious person had posted "FREE SEX!!!". Then that phrase would appear on the front page of the blog. And perhaps trip the censorware. Moreover, if he tried to delete the comment, the editing screen would of course have displayed it, and hence also triggered the censorware (there might be way to generate a delete command without display, but most people would probably stop at the point where they were locked-out of the comment editing screen).

I didn't test this, err, directly. But likely there will be plenty of chances to see if it happens to someone ...

By Seth Finkelstein | posted in censorware , security | on July 05, 2004 11:59 PM | (Infothought permalink) | Comments (3) | Followups
July 01, 2004

Free Expression Policy Project on COPA (net censorship) and Censorware

There's excellect and uncommon commentary on the "COPA" net censorship decision from the Free Expression Policy Project :

The Right Decision; The Wrong Reason

Equally important, this victory has dug us ever deeper into the Internet filtering trap - the embrace of a technological "fix" that, with its mechanistic, heavy-handed use of key words and phrases in place of context, nuance, and human judgment, censors far more speech, and far more irrationally, than even a vague criminal law. Magna cum laude graduates, fans of "Marsexploration," and lovers of "pussy willows" beware.

In fact, I had a censorware report in preparation concerning exactly that topic, nailing down examples from key words. It's some of the lesser research which was derailed and destroyed due to all the attacks and legal risk. All I can do now is put that on the record now, as an empty gesture to history.

By Seth Finkelstein | posted in censorware | on July 01, 2004 11:59 PM | (Infothought permalink) | Comments (1) | Followups