Infothought

Chamberlain v. Skylink (Garage Door Openers), DMCA, and fair use

So, the Chamberlain vs Skylink DMCA case has been decided in favor of the right to have compatible garage door openers. But as I've noted in an earler Chamberlain v. Skylink post, I'm not anywhere nearly as enthused as many others I'm afraid I've again turned into Eeyore.

As I read it, the whole opinion boils down to the judicial version of a Monty Python-ese statement of: "Stop that! It's silly.". Or, in legalese:

Under Chamberlain's proposed construction, explicated at oral argument, disabling a burglar alarm to gain "access" to a home containing copyrighted books, music, art, and periodicals would violate the DMCA; anyone who did so would unquestionably have "circumvent[ed] a technological measure that effectively controls access to a work protected under [the Copyright Act]." § 1201(a)(1). ... Yet, were we to read the statute's "plain language" as Chamberlain urges, disabling a burglar alarm would be a per se violation of the DMCA.

My take on this is the inverse of many other commentators. I think here, the DMCA 1201(c) fair-use-not-affected section is being used as the statutory support for the basic statement of "It's silly". But that doesn't mean anything should be read into other instances:

We leave open the question as to when [fair use] might serve as an affirmative defense to a prima facie violation of [the DMCA]. For the moment, we note only that though the traditional fair use doctrine of [fair use] remains unchanged as a defense to copyright infringement under § 1201(c)(1), circumvention is not infringement.

That is, nothing here has been resolved regarding the tension between fair use and copying. Here's the critical part (emphasis added):

Such an entitlement, however, would go far beyond the idea that the DMCA allows copyright owner to prohibit "fair uses . . . as well as foul." Reimerdes, 111 F. Supp. 2d at 304. Chamberlain's proposed construction would allow copyright owners to prohibit exclusively fair uses even in the absence of any feared foul use.

All this is saying is, basically, that if there's no conflict between fair use and anything else, the DMCA can't be used as, in effect, a patent for any product. That's nice. It's good for other businesses. But it doesn't address the issues of DMCA reform, which are exactly that conflict.

The No-Fly List and Think Like A Terrorist

Responding to my post "Data corruption attack on terrorist no-fly list?", Ernest Miller comments:

As amusing as that thought is, however, the real question is why would terrorists want to do this? Why would they want to flummox up a mostly ineffectual system that give the illusion, but not the reality of security? Sure, it might increase the costs of the system, but would it be worth it?

I reply: Think like a terrorist! (not a techie). Let's say, in the standard sort of nethead framework, that the silly security system is fooling those sheeple of the general population. Bovine-like, they are led and lulled by the shiny objects and pretty blinking lights. We are just so smart, we see through it, can't fool us, no siree.

But ... the terrorists, they're smart too. They know it's all a sham and political posturing. They also know that we smart people know it's all for show. So they don't *want* the general population to have the illusion of security. After all, if the general population has the illusion of security, then they're not terrified - and the terrorists have lost! Moreover, the beneficiaries of such illusions are the current government, which is exactly the opposite of a desirable situation from the viewpoint of a jihad-ist.

So flummoxing the no-fly list a "terror twofer". It embarrasses the government, and can be used to disrupt the travel of even high government officials. Think of it: a few plausible-deniability entries, corrupting a list, can throw a senior Senator's (or Representative's) schedule into disarray and personal frustration. And then cast doubt on the quality of whole data set. It's an incredible return on investment of a very low-level operation.

The conclusion is inevitable:

[Just to be clear, since this is the Internet, I have to break the mood and say that this article is written tongue-in-cheek. But feel free to take it seriously anyway.]

Data corruption attack on terrorist no-fly list?

[Written for Dave Farber's list, in reaction to John Lewis and Edward Kennedy on no-fly list. But it didn't make the list cut]

There's been much discussion about how difficult it is for someone to get OFF the no-fly list. But, from the opposite direction, what are the controls to put a name ON the no-fly list? The evident lack of validation suggests a very simple data corruption attack which could use the list as a terrorist weapon itself.

The idea is simple: Take a low-level operative, perhaps one who has outlived his usefulness. Send him on a mission that is likely to get him captured. The key idea isn't the mission himself. Rather, have him carry phony "valuable intelligence" documents, with faked ID's in various alias, to get those names added to the no-fly list.

Using an alias of "George Walker Bush" is probably pushing things. But then again, I wouldn't have thought "Edward Kennedy" would have had such an effect. How many security agents do you think would look askance at a fake ID with the name "William Rehnquist"?

There are endless variations of this game, depending on where the names are gathered. One could do standard double-agent tricks, of feeding disinformation: "To my intelligence handlers: Be aware of a change in tactics - given the recent publicity about members of congress on the no-fly list, our terrorist cell has decided that future operations will be done with fake ID's in the names of prominent, but not household-word, government officials. Be especially alert for anyone traveling under the names "Karl Rove" or "Tom DeLay", they're likely to be potential terrorists ...".

While this is of course a very old idea in general, the potential usage of the no-fly list, by terrorists, for creative disruption, has probably been under-examined.

JibJab Lawsuit Outcome and Creating A Copyright Lawsuit Downside

I'm a bit late to the analysis party on the JibJab lawsuit win. What I find notable myself is that this is a rare instance where there has been a downside to bringing even threatening (clarified per Ed Felten's comment) a copyright lawsuit.

The typical mathematics, is that when a copyright lawsuit is brought, the worst thing that can happen is that the plaintiff is in the same position they started. That is, they're ordinarily against some use, they try a lawsuit, if they win, they've stopped it, if they lose, they're no worse off than if they did nothing. So this favors rolling the legal dice. Of course, lawsuits cost money, but to a large corporation, that's just a cost of doing business.

Now, the above outcomes are vastly simplified. They're always the possibility of "bad publicity". Or losing so badly that the defendant recovers legal fees (e.g. Barbie satire).

But the outcome here, where the song "This Land Is Your Land", is discovered to arguably be in the public domain, is a rare outcome where a plaintiff now might reasonably wish they'd never brought the case in the first place.

That's the broader, "precedent"-like, significance here. Where the next intimidation lawsuit being considered, might in fact not happen, for fear of dice-rolling result, by the plaintiff.

JibJab lawsuit dismissal CONFIRMED!

SCOOP!

08/24/2004 5 NOTICE of Voluntary Dismissal Without Prejudice by Jibjab Media Inc., (Cohn, Cindy) (Filed on 8/24/2004) (Entered: 08/24/2004)

[Update: Wired News has it at 8:29 Eastern. Life is hard for the "citizen journalist" :-)]

[Update2: EFF Press release up now]

SmartFilter Blacklists Gay City-Sponsored Event From City's Own Library

[Remember, censorware marketing flacks can say anything, without opposition ]

Capital mix-up over Mardi Gras

Capital mix-up over Mardi Gras
Aug 21 2004 Aled Blake, The Western Mail

A Welsh council was accused of hypocrisy yesterday after barring its computers access to a national gay and lesbian event which it supports.

Cardiff County Council stopped its computers from accessing the city's Mardi Gras website - despite an endorsement from its new leader.

Computers at libraries in Cardiff could not get into the website, which promotes the city's gay and lesbian festival in September, because software it uses automatically stopped users getting into the site.

The council lifted the ban yesterday afternoon after complaints from people trying to log on to the Cardiff Mardi Gras homepage. ...

A spokeswoman for Cardiff Council said, "The council operates a policy to monitor and control the content of sites accessible to council employees and members of the public.

"In order to do this we use a product called 'Smartfilter' provided by an external company which gives us a database containing millions of categorised websites updated daily.

[Yup:]

Copyright items round-up - Junger (code/speech), Skala (law/tech), Crawford (info commons)

"Little people" deserve link-love too:

Peter Junger's Samsara blog for August is full of interesting yet unremarked copyright/code/speech items. It ranges from Is Source Code Like a Machine Gun? to Why All the Fuss About Source Code? Copyright, Machine Code, and Compilers. Disclaimer: He's also posted, ahem, Seth Finkelstein's Contribution.

Matthew Skala has a follow-up piece on Colour, social beings, and undecidability. Basically, writing from the tech perspective (which I share) that law is about political/social rules, not physical/mathematical rules.

Walt Crawford's library 'zine "Cites & Insights" (not blog - but there is now a Cites & Insights Updates Blog) has come out with the September 2004 issue. There's a long, informative, discussion of open-access publishing But not at all obvious from the capsule, buried deep toward page 20, is an interesting skeptical discussion of the Information Commons Report:

Will I become an advocate for the information commons? Not directly, not until the mental model makes sense to me--but that could change at any time. ... I was hoping that [the report] would convince me that "information commons" was a well-defined concept and one that I should support. That didn't happen--and I'm not sure whether it's because I'm unable to recognize the grand vision or because I don't buy this particular aggregation of concepts.

While I'm actually not in agreement (being mildly subject to the grand vision), the analysis is complex and subtle enough to be worth pondering, as non-polarized criticism.

MGM v. Grokster appeal victory, and The INDUCE Act Cometh

As will be noted by everyone in the whole copyfight universe, the MGM v. Grokster appeal concerning copyright liability for file-sharing programs, has been decided in a victory for the civil-liberties side (congratulations!)

In short, from the evidence presented, the district court quite correctly concluded that the software was capable of substantial noninfringing uses and, therefore, that the Sony-Betamax doctrine applied.

As also will be noted, this is not the end of the story, and there's likely to be further action from Congress:

Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies. As the Supreme Court stated in that case, "The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress."

As I said a while ago in an old post concerning Grokster, "Streamcast copyright win, vs. LaMacchia case",

This reminds me much of the concluding part of the LaMacchia case:

This is not, of course, to suggest that there is anything edifying about what LaMacchia is alleged to have done. If the indictment is to be believed, one might at best describe his actions as heedlessly irresponsible. and at worst as nihilistic, self-indulgent, and lacking in any fundamental sense of values. Criminal as well as civil penalties should probably attach to willful, multiple infringements of copyrighted software even absent a commercial motive on the part of the infringer. One can envision ways that the copyright law could be modified to permit such prosecution. But, "'[i]t is the legislature, not the Court which is to define a crime, and ordain its punishment.'

And the result there was the .NET act . I wonder what we'll get here?

And now, the answer is clear - IICA/INDUCE Act!

Internet Archive, DMCA Exemptions, and Press Echo Chamber

Last week, the Internet Archive got some press for DMCA exemptions. That's last week, not last year. Being that the DMCA exemptions were announced last October, this puzzled me. As a DMCA exemption winner myself, with much grief, the topic is very dear to my heart.

It turned into a minor case study of echoing.

We start with the base article, from The Inquirer:

Internet Archive has copyright problems
DMCA exempt for now

By Nick Farrell: Wednesday 11 August 2004, 07:17
[TheInquirer]
The US Internet Archive, which makes archival copies of software and data, said it was technically impossible to do its job because of the Act which forbids copying software. ...

This week the group announced on its site here that the Copyright Office has ordered a temporary exemption for the group's work.

This article is not quite correct, as once more, the exemption were announced in October 2003. And the Archive announcements page shows the particular page was posted on January 08, 2004.

But now the fun begins.

Echo - broadbandreports

Echo - FARK

Echo - LawMeme

Echo - LISNews

Echo - CD Freaks

Echo - Techdirt (but points for at least wondering about the age of the story)

echo, echo, echo, echo ...

All of this generated from one item that arose from a reporter writing about something which was in fact many months old.

And the moral of the story is: Nobody should ever tell me that the paucity of favorable coverage I've received was due to my censorware work not being worthy. That's a rationalization. Because it's too easy to kick me when I'm down, than to admit I was let-down.

BSA Weasel == "Beagle Boys"!

The Business Software Alliance (BSA) has announced an "anti-piracy" site, with a kids' mascot ferret, and a contest to call it a name.

The BSA weasel creature reminded me of something I'd seen before. Something shady, disreputable, criminal. Finally, I remembered! The BSA weasel looks like he's a member of a criminal gang in Walt Disney Comics, the "Beagle Boys":

BSA Weasel	Beagle Boys

Look at the family resemblance. Same shirt. Same pants (gang colors?). Same squinty, hooded, eyes. Same toothy smirk. He's even wearing something on his chest, which, making allowances for updating to the modern age, might be a Beagle Boys identification patch (more evidence of gang affiliation!).

Traditionally, the Beagle Boys were after Scrooge McDuck's Money Bin. They must be diversifying. There's certainly a big money bin around the Business Software Alliance, one to rival Scrooge McDuck. So the gang has obviously gotten one of their younger members to convince the BSA executives to take him into the organization (using his weasel-skills - thus explaining what would otherwise be evident stupidity in having such a mascot). While everyone is distracted at the official contest ceremony, the rest of the gang will attempt to pull a heist. Classic plot.

It all fits ....

[Credit: Beagle Boys image from Kit's Silver Age Comic Books ]

Google IEM Futures Market Data

I've been trying to figure out if there's some rational way to figure out what's a good bid for the Google IPO price. There's a real market even now, part of the "Iowa Electronic Markets":

The Iowa Electronic Markets are real-money futures markets in which contract payoffs depend on economic and political events such as elections. These markets are operated by faculty at the University of Iowa Tippie College of Business as part of our research and teaching mission.

They're running an IPO Google market

But unfortunately for fans of the idea of markets for everything, the results are very unimpressive.

For exact numbers, there doesn't seem to be much trading data (nothing on many days)

For ranges, there's still not much data. It's sparse and irregular.

As far as I can read it, the market oracle says "Future cloudy. Ask again later."

Open Media

Open Media (not up yet) is today's Daily Memo, so I'll play. I assume the following is basically a press release, so it's OK to post it:

Today Marc Canter and I announced a major new initiative: Open Media, an open source media project that will attempt to foster grassroots media and spread users' creations to people's desktops through open standards.
http://www.newmediamusings.com/blog/2004/08/open_media_the_.html

http://marc.blogs.it/archives/2004/08/openmediaorg.html

Hope you'll spread the word (and join our effort in some fashion).

jd
http://www.newmediamusings.com

There's clearly a real problem here to solve. Interconnecting uses of Creative Commons media is something which could be very useful.

On the other hand, I can't wait to see what happens when someone contributes their own "amateur" videos (in the Paris Hilton sense of the word ...). Or how they're going to handle all the copyright-infringement claims which are sure to follow (perhaps this is also a data-mining effort for the declaratory fair-use lawsuits which Lawrence Lessig is seeking). It's definitely worth watching for those issues alone.

Censorware items round-up

Many censorware stories have crossed my screen in the last few days, so a little aggregation and commentary might not be bad.

Bob Turner writes of his censorware company's open list of porn domains. Yes, I am vastly amused by this. Though I don't think it changes what I say concerning secret censorware blacklists, as the actual usage of open lists is very small. In a different world, I'd do more on this specific topic. But these days, sadly, I just don't want the hassle.

A decryption temptation which I must forego, sigh: Daily News: Cleaning up Justice (via Wonkette, of all places).

First, Attorney General John Ashcroft demanded that his department's bare-breasted statue of Justice put some clothes on. Now the DOJ bluenoses are checking staffers' E-mails for naughty words.

Some at Justice are griping about software, called MailMarshal, that blocks messages when it spots "unacceptable language, or inappropriate material." ...

Stu Smith, president of AFSCME Local 2830, which represents employees in the department's Office of Justice Programs, has asked for a list of the "bad" words and an explanation.

DOJ spokesman Charles Miller tells us the program was installed for virus protection, but that it also rejected E-mails it deemed too vulgar. Miller says the program has been uninstalled since staffers complained. ...

Gary Price told me about: "Panel says expand use of library Web filters" (my emphasis below):

By Ames Boykin Daily Herald Staff Writer Posted Tuesday, August 10, 2004

Every computer in the Des Plaines Public Library would be equipped with an Internet filter to block sexual images, under a plan approved Monday. ...

"If there is information being blocked, it should be reported to the library so the system may be evaluated over six months, officials said. But the filters won't be disabled even if a patron asks during the trial period."

But I have a blog ...

Online Principles

Susan Crawford proposed to create Online principles, and I quickly commented, mainly about "Been there, done that, doesn't work". John Palfrey replied noting the "doesn't work", and further, "That does not suggest to me that it's not a worthy exercise, necessarily, especially if it's possible to come up with a set that are agreeable to a broad and influential enough community.)". Then Ed Felten responded, "But Seth is right that past attempts to define online principles have often gone off the rails ... We need to focus instead on specific things [the Internet] does change, and devise principles for dealing with them."

It's important to remember the "been there and done that" part of my comment. I don't mean to be harsh, but many, many, statements have been issued over the years.

To take one notable recent example, consider the Center for Democracy and Technology's Library Censorware Wish List (formally "Principles for the Implementation of CIPA-Mandated Filtering in Public Libraries"). It's not a bad document, as such things go. It just has absolutely no utility as far as I can see. I'm particularly fond of the item where "Users and communities should have access to ... lists of blocked sites ...". That won't happen. All the major companies keep their blacklists secret, and they sue to prevent exposure. I don't know of any major censorware company which cares that it doesn't comply with the CDT censorware principles. Why would they? And CDT isn't the first organization to issue this sort of censorware statement.

Anybody can make up a wish list: Peace on earth, goodwill to all, freedom, democracy. That is, I mean, End-To-End, User Control, Innovation, etc. Then what?

The issues facing the evolution of the Internet are ones where there are heavily conflicting and mutually incompatible interests. The obvious response of someone on an opposite side of an issue is perhaps "I don't share those principles", or maybe "The principles don't mean what you think they mean, instead I am the true interpreter of The Way".

And this is seen very contentiously in the spam debate, where the arguments over principles there resembles the intensity of the political arguments over abortion.

I should stress I believe I understand the perspective which drives these proposals. What I'm attempting to convey is that, in practice, the ideas have very well-known failure-modes. If they worked, there wouldn't be so many opportunities to repeatedly propose them.

The Meaning Of Blogging Argument

Let me try to approach the recent blogging argument from another direction. The use of "blogging" to mean all of online diary/chat/newsletter/journalism fuels the following sequence:

Bubble-Blower: "Blogs are the revolution of Effulgent Pundocracy. It's A New Era. All the jackals of the press will be replaced by a spontaneous uprising of citizens bloggers who form Smart Snobs."

Journalist: "You're all a bunch of navel-gazing diary-writers, blithering about what you ate for lunch, and what your cat did."

Columnist: "I'm not a journalist. I don't aspire to be a journalist. I'm writing my freelance feature material, so it's a strawdog argument to accuse me of trying to replace a journalist".

Diarist: "But I'm happy keeping my online diary about what I ate for lunch and what my cat did, even if nobody reads me. What's wrong with that?"

[No specific people are intended here, but these are archetypical patterns, so resemblances could be imagined.]

Viewed this way, when the extravagant bubble-blowing claims get debunked, the critical reaction sweeps up all manner of other basically unrelated issues via linguistic confusion over the purpose of the writing. But that linguistic confusion is also appealing to many blog-writers, because those bubble-blowing claims are flattering and attractive (it's quite fun to think of oneself as being part of the revolutionary vanguard, from the comfort of one's home and keyboard). And in certain circles it would be just plain dull to say "I'm a freelance writer", as opposed to "I'm a blogger".

But crucially, the issue is not whether a freelance writer enjoys writing. Almost all do, because they sure aren't in it for the money (obviously, if they didn't enjoy writing, they'd stop and/or get another job). Rather, there is nothing particularly new or innovative in whether freelance writers get any readers. The writers are not wrong either to not want readers (diarists) or to want readers (everybody else). But the readers are going to be present in roughly the same proportions as always, with the recommendations of gatekeepers playing a big role in the making or breaking of a popular writer.

So freelance writing isn't wrong. But neither is freelance writing special.

The Meaning Of Blogging

Andrew Orlowski kindly quotes my post "Blogging, Democratic Convention, and Reaction" in The Register article "Blogging 'cruelty' allegations rock post-DNC calm", for example:

The DNC breakfast illustrates that it's a vicious fight out there, and to survive, it isn't enough to define yourself by the tool you use. Seth Finkelstein sums up the gaucheness of the hopeful WiFi militia when he wrote,

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".

This will not increase my popularity with the A-list :-).

In general, in the aftermath of all the articles about whether there was a "Blogging breakthrough" or not, I've seen many go-arounds of the basic "Is it a floor wax or a dessert topping?" (both!) argument about The Meaning Of Blogging. The problem is that this argument tends to switch back and forth between two different tracks:

There's a path which runs along the lines:

1) Blogging is your own unedited voice, your personal spin, the perspective you, yes, you, bring to the universe ...

Problem: Well, generally, who in the world cares about anyone else's little spin or perspective, beyond a few friends or fans (the exceptions being extremely rare)? Why should ordinary people spend so much time writing and reading other writers, except as a hobby? And if it's just a personal hobby, in the same sense as bird-watching or train-spotting, why should anyone care outside of the other fellow-hobbyists?

[So, in response to this difficulty, advocates want to reach for a higher social purpose. Which yields:]

2) Blogging is citizen journalism, it is We The Media, it is Emergent Democracy, it is the reworking of society itself ...

Problem: But that sure looks like the same-old same-old in practice, a handful of A-listers having the audience and being gatekeepers, and now without even a figleaf of journalistic standards for justification. So why should anyone care that some pundits and want-to-be-pundits are fighting over the very few available spots? Evangelism to the contrary, either you're a part of that network, with all its clubby incestuousness and tribal rivalries, or you're the equivalent of a guy standing on a soapbox ranting to passers-by, for all the effect you'll have.

[Switch! Go back to #1 - blogging is you, yes you. Maybe you like standing on a soapbox and ranting, some people do enjoy doing that.]

[Eventually, jump out of the loop, to:]

3) Blogging is undefinable, ineffable, outside of time and space. No judgment can be made, because there are no rules to it besides the rules we each make.

[Basically, shut up and stop thinking about it]

Playing a shell game with these argument-tracks leads only to distraction (and calling me names will not make the issues go away).

Google Initial Public Offering - Where Are The Bubble-Blowers?

Given the Google Initial Public Offering site has launched, I expected the hype to kick into high gear.

But where is it? Where's all the articles proclaiming "Google has revolutionized the world - you must own this stock at any price!". Where are the stock market touts, arguing "Computer power doubles every 18 months, so Google's value should double every year and a half, so it'll be worth a dozen times more in a handful of years".

The absence is astonishing. All I've been able to read is well-argued evaluation and skepticism and even crabbiness.

I'm beginning to think this is a sobering demonstration of what happens when the marketing machine is turned off, or even reversed. Google did not make the standard IPO deal, where the investment banks fleece the small investors, generally by lying about the stock (just look at what came out in the scandals). This may not have been for for any particular moral reason. But rather because Google wanted any fool's money for itself, in a *self-fleecing* system via auction.

However, it seems that in retaliation, the moneybags are now dumping on Google. Not a scintilla of hype to be found. It's scary.

Slashdot Effect

On Saturday, there was literally an astronomical blue moon. This meant I could get mentioned on Slashdot (thanks!). The statistics of referer hits to my JibJab lawsuit info post were:

Slashdot 1,603
Importance blog 404 (this is almost all a Slashdot reflect since posts there were also mentioned)
unknown 214
sethf.com 63

Note, that post was so much less work than a DMCA exemption or my Nitke vs Ashcroft Expert Witness Report.

Anyone who thinks there are no gatekeepers in the bogosphere, is simply deluded.

I'm not 100.0% banned from appearing in Slashdot. That would be a strawman version of the problem. Rather, I'm extremely marginalized, due to the complicated politics of the Slashdot de facto support connected to "editor" Michael Sims' domain hijacking (which is NOT a case of moral equivalence).

I've said this before. But every time I work through some numbers, some measurements, I think about how the Panglossian view is absurd and downright cruel. No, we are not a bunch of happy little blogging bears all playing patty-cake with each other. There are some animals who are far more equal than others.