April 29, 2005


"TrustRank" is criticized by Jeff Jarvis:

Michael Zimmer points us to what I think is a fairly hair-brained scheme from Google that reveals its fetishistic prejudice in favor of machines and also its prejudice in favor of big, old media.

The search engine wants to come up with an algorithm to judge trust in news. They already have a trademarked name for it: TrustRank.

"Fetishistic prejudice"? No, no, no. Such algorithms are the missing piece of building a journalism data-mining business. That's what's needed to really turn the results into other than a list of items by keywords. Moreover, something useful would be the best thing ever to happen to "citizen journalism"!

Every once in a while, when I talk to Andrew Orlowski, about Google and society, I say there are deep, hard, computational problems in the world, and nobody has solved them. But in these efforts, sometimes someone comes up with just a little nibble at the solution, and the outcome can be extraordinary (of course, a lot else has to go right too, many businesses have had good technology and failed, that's another topic).

One big problem with "citizen journalism" is finding effective ways to sort through the piles of ranting and propaganda and echo-chambering, etc., in order to get something useful, at the limits an ordinary person can stand. Lists of articles where keywords appear, don't scale (a workable solution there, for web pages, was the original advantage of Google).

Of course any such algorithm will have certain values and prejudices. A whole book could be written on the problems of Google's algorithms. To be fetishistic about something being an algorithm is indeed a common sociological failing. And as noted, the algorithm itself could favor old vs new, big vs small etc (similar criticisms have been made of Google's web page ranking, and in fact there appear to be certain tweaks to deal with those issues).

But it seems likely that someone who develops a "trust" algorithm which is halfway functional - even if it's ponderous, flawed, prejudiced, biased (sound like something? e.g. criticism of journalism?) - will have an immense advantage in the race to exploit that commodification and de-professionalizing of journalism.

Maybe the best thing to do is to fund Google alternatives, to insure Google doesn't turn into the next Microsoft-like monopoly

[That wasn't a pitch, though it reminds me again I really should get back to analyzing Google. The relevant keepers of the gates are better for me, and there's money in it, in contrast to the horrible effects of fighting for net-freedom]

By Seth Finkelstein | posted in google | on April 29, 2005 11:59 PM | (Infothought permalink) | Comments (2)
April 28, 2005

Cites & Insights May 2005 and Family Movie Act commentary

Walt Crawford's publication Cites & Insights 5:7, May 2005 is out today.

Excellent meaty reading as always. And the announcement gives a good indication of why one would want to read it - covering everything from recent copyright issues to blog ethics. Note I'm mentioned, for e.g. Family Movie Act commentary and blogdom a-list issues

This is the sort of issue where I wonder how far I should go beyond just pointing to it. On the gist of the topics, there's many items where I have disagreements, more than quibbles, but less than full-throated flaming motivation. It's the perennial topic of when one gets quoted in the press but has article has problems.

For example, regarding the section FMA: Watching the Way You Want, Walt has

I agree that it's not a big win--the big win, if there is one, is in *not* getting the really bad provisions that were up for adoption in 2004--but I disagree with [Seth's] characterization. The law does not direct itself to one particular market, and I don't believe it's reasonable to assert that it does. I'm no "narrow-minded control freak," but I might choose to use something like ClearPlay for certain movies that I might otherwise find worthwhile, but where I'm too squeamish for the explicit blood and gore. Call me a wimp -- but don't call me a control freak.

I'd reply the issue is not whether one can imagine, in a theoretical sense, some use by other than religious prudes - it's who wanted it, and for what. I found the section in the Congressional record, which states outright (my emphasis):

Before going into a title-by-title discussion of the bill, I would like to express my particular support for the Family Movie Act, which has been included in this legislation. Chairman LAMAR SMITH and I worked on this bill last Congress. It's important legislation both to parents who want the ability to use new technologies to help shield their families from inappropriate content as well as the technology companies, such as ClearPlay in my home State of Utah, that are working to develop these technologies. The Family Movie Act will give parents more say over what their children see, without limiting the creative control of directors and movie studios.

If that's who it's intended for, that's who it's intended for, as a simple statement of fact. ClearPlay is not a general service which happens to be also used by narrow-minded control freaks. It's a service for narrow-minded control freaks which people speculate might possibly conceivably potentially have a use by somebody else, but nobody has actually has seen it happen (which should tell you something!).

So, while I'm not opposed to such people now having a recognized right to bowdlerize movies for their own family, I think it's critically important to understand the political context of that section of the law. There is a reason that Congress (especially this Republican Congress) passed that particular copyright exemption, and that reason is far better rendered as not "user rights", but "Religious Right".

By Seth Finkelstein | posted in copyblight | on April 28, 2005 11:52 PM | (Infothought permalink) | Comments (0)
April 26, 2005

"Blogger Relations"

"Blogger Relations", as a PR practice targeting writers of blogs, is being mentioned now by A-listers. This has been around for a while. The current interest is a good opportunity to post the following item from a PR newsletter:


March 22, 2004 PR NEWS
Volume 60, No. 12

Blogs Becoming a Growing Bazaar for PR

They were started a few years ago by political observers who made their running commentaries available online, but have recently emerged as a potent media force for PR execs: blogs. These days, blogs go well beyond the political scene, with diverse sites offering all kinds of news by the day, hour and minute. Indeed, a recent survey by Perseus Development Corp. predicts the top blog-hosting services will be home to 10 million blogs by the end of 2004. "I know journalists visit the better blogs, so this is a way to spread a story or spread awareness of your company," says David Burt, PR Manager at security software firm Secure Computing, who spends about 5% of his time trying to get bloggers to mention his company. In one case, a blog reported on a security study conducted by his firm. That story, in turn, drew a call from a writer at Information Week. (Curiously, Burt sent a press release on that same study to another reporter at the magazine but did not get a call back.)

Note the concept - cold press-releases didn't work, but going through a gatekeeper, a person who echoed the press release, did work. Blogs can act as a conduit from flacks to journalists.

(I realize David Burt's tactics did get his company mentioned here, but perhaps not the way he wished).

By Seth Finkelstein | posted in cyberblather | on April 26, 2005 11:59 PM | (Infothought permalink) | Comments (1)
April 25, 2005

CNN Blog spam Google conspiracy theory (Nancy Grace)

(sorry, old net.joke)

There's an accusation going around that CNN is engaging in a viral guerilla marking campaign, also involving lowering the Google rank of blogs which criticize CNN. See for example the coverage at MetaFilter and Wonkette

Ouch. This is taking normal net strangeness, and turning it into a convoluted double-backed conspiracy theory that's straight out of a spy novel. The accusation is that CNN is spamming blogs. But then not only are they spamming blogs, they are engaging in a sophisticated Google attack designed to lower the rank of posts critical of CNN, by introducing spam into the comment stream. Oh, and the evidence for this involves in part that CNN sent press releases to well-read blogs during the attacks on CNN executive Eason Jordan.

Google, blogs, spam, CNN ... or was that Russia, KGB, terrorists, NYT? (maybe these days, Iraq, Al-Qaeda, WMD, Dan Rather).

After spending too much time looking through the evidence, it's pretty clearly one guy who has a slightly askew take on CNN's Nancy Grace. The keyword-stuffing technique that's supposed to spam-poison the comments is there because the spammer thinks it helps his spam. Not as a devious rank-lowering trojan-horse. The proof, to the expert eye, is that some spam keywords are structured the way an amateur would think would matter in search (plus sign preceding the word). But a professional search engine optimizer would never bother doing it (of course, it could be a professional cleverly faking being an amateur ...) But a journalist reporting on this wouldn't see the difference.

Of course, this post isn't going to be heard enough to do any good sad face.

[Update 5/5, to more clearly explain my interpretation (thanks for the link, Dan): There's someone who has been spamming a few blogs which discuss CNN, with his message critical of Nancy Grace. As he does this, he gets the (to him) "bright idea" that if he adds a bunch of keywords to his comment, it will rank better in searches. So he adds (here is a key point) keywords. He creates these keywords working from various ways searches are done, which sometimes requires a plus-sign before a word in order to require that word to appear in the search. This would not be the thinking of an elaborate anti-optimization attack.

The net is filled with people who go around and spam blogs to get their message heard, with various degrees of skill at it. So by the saying "When you hear hoofbeats, think of horses before zebras", when you see weird spam, think marginal people before elaborate PR campaigns. It's a much better fit. ]

By Seth Finkelstein | posted in spam | on April 25, 2005 11:59 PM | (Infothought permalink) | Comments (2)
April 24, 2005

Posts-not-written roundup, and Jon Garfunkel's "The New Gatekeepers" series

Collected recent items on the A-list and posts not done.

1. I used to participate in commenting at Jay Rosen's PressThink blog. But I gave it up when the chaff/wheat ratio skyrocketed, along with the dogs/cats ratio (and I didn't want to hang around to the point I was deemed prey). I've thought of writing a post concurring with the perspective that he's been making some bad mistakes lately (when a lead dog of a pack congratulates you on your help in the pack's hunt, that's a good time to start checking yourself for fleas). But it's been evident both privately and publicly that Jay's very unhappy about some criticism he's received. He'd probably just get mad at me, and it's all way out of my power-league. Let somebody else save the liberals.

2. In an ideal world, I could have added more factual support when Shelley Powers was flamed over women and "qualifications". The problem is that you can't really win a debate with an A-lister unless they permit it. Trying to do so is a bit like arguing with a military dictator or a small child. They always have the option of declaring themselves the winner, and woe unto you if you don't go along with that. Every once in a while I asked during the "RSS Wars" how blogs were supposed to revolutionize society when the leaders couldn't even agree on lunch, I mean a site syndication format. This, to me, was a profound question. But the consequences were going to be against me for asking it, not against those who didn't want to try to answer it. Here, I could have pointed out to the A-lister that he had once slammed me to his entire audience without being willing to do one click to check "qualifications". Just a single click, and he didn't do it, before unleashing on me a flame from on high. This thoroughly convinced me that Shelley Powers had critical facts right about the social process at work about determining who is "qualified". But, recursively, I was almost certain to get another flame out of that.

3. Inversely from the all the above, I've owed Jon Garfunkel some linkage for his series:

  • The New Gatekeepers - "I will argue here that gatekeepers are inherently needed by the architecture of the blogosphere"
  • Changing of the Guard - "Is it that this new set of gatekeepers is more responsible to the public than the old?"
  • Who They Are - "...where I learned just who the new gatekeepers were, and why people are suspicious of their roles."
  • Their Values - "... Freedom over responsibility. Anonymity over traceability. Immediacy over thoroughness. Talking over listening. Breadth over depth. Ego over deference ..."
  • The Alternative - "We should be aware of the things that can go wrong before we assume that they will always go right."

Read it. [Disclaimer - I appear in the series].

By Seth Finkelstein | posted in cyberblather | on April 24, 2005 01:22 AM | (Infothought permalink)
April 22, 2005

Family Entertainment and Copyright Act

The Family Entertainment and Copyright Act has a provision that is generating a mini-feeding-frenzy over a combination of the perennial definition-of-censorship debate, combined with the understandable desperation of copyfighters to grasp at something, anything, to have a victory. Here is the text of the passage describing one brand-new exemption from copyright infringement (taking the last, "S.167.RH", version):


(11) the making imperceptible, by or at the direction of a member of a private household, of limited portions of audio or video content of a motion picture, during a performance in or transmitted to that household for private home viewing, from an authorized copy of the motion picture, or the creation or provision of a computer program or other technology that enables such making imperceptible and that is designed and marketed to be used, at the direction of a member of a private household, for such making imperceptible, if no fixed copy of the altered version of the motion picture is created by such computer program or other technology.; ...

In simple terms, this is aimed at the market for religious prudes who want expurgated movies. The underlying issue is a fairly obscure tension in copyright law, between the movie business and extreme social conservatives. The problem is as follows:

Copyright law generally forbids others making "derivative works". Cutting out naughty bits from movies might count as a "derivative work" (the boundaries here are unclear). The market for extreme social conservatives is too small to justify officially making special bowdlerized movies versions for their sensibilities. So they've made their own versions. Laudable in some way, but with regard to copyright, THIS IS A PROBLEM! Because if religious prudes are allowed to remix, alter, recreate, a copyrighted work, that potentially opens a wedge for anybody to do so. On the other hand, it's very, very, bad politics these days to be against what religious conservatives want, especially when it comes to protecting the children. Bad, bad, bad.

So what do do? Well, copyright law does not disintegrate in a flash of contradiction. The answer is almost elegant. Grant the ultra-prudes a special, minimal, exemption, just enough capabilities meet their needs, but so constrained and qualified that in practice, nobody else will ever be able to make use of it. Problem solved (maybe).

This isn't much of a "free speech victory". It isn't really a "free speech defeat" either. It's more of a clever solution to a political copyright problem, that doesn't help anyone besides those directly involved in movie bowdlerization.

Some people are worried about this issue as another ratings-type effort, like the old censorware wars. That is, where a system is propagandized as "informative" and "for parents", but it's essentially quasi-judicial and for broad banning. It's good to see such thinking in general. But this isn't a ratings-type case, for the simple reason that nobody *is* setting up a system for broad banning. There's no extensive propaganda effort to tell people that what looks like a duck is really a parental empowerment aquatic quacking technology embodiment.

However, if not a threat, it's not a big win either. To abstract away the evident politics and reasoning behind how the exemption was created is to be wilfully blind to the reality of the situation. This provision is not an endorsement of innovation or a gateway to remixing culture. It's a tiny sop to fanatical narrow-minded control-freaks, no more. Now, while it's not wrong _per se_ to accommodate fanatical narrow-minded control-freaks, neither is that exactly a great occasion for proclaiming an advance in user rights.

The critical point is that, no matter how much we might like it to be so, this provision is not a stepping-stone to greater cultural freedom. The context shows that very clearly.

By Seth Finkelstein | posted in copyblight | on April 22, 2005 11:59 PM | (Infothought permalink) | Comments (10)
April 21, 2005

News - The RI ACLU IS NOT Planning "As-Applied" Library Censorware Challenge

[Original news! Blogger Reporting! CITIZEN JOURNALISM!]

Jessamyn West of the widely-read librarian.net wrote

One of the very interesting things about CIPA was the way the Supremes analyzed the law as written but did not rule on the law as applied. Requiring libraries who take federal funds to filter computers in the interests of protecting children was, as written, acccording to them, not unconstitutional. However, if that law as it was applied wound up blocking protected speech, especially for adults who have free speech rights, then it might still be unconstitutional. So, if a library has filters it can’t disable for adult patrons who request it, for example, that might be unconstitutional. Many censorware activists have been waiting for this other shoe to drop, to see if an “as applied” challenge to the law might be forthcoming. A recent press release from the Rhode Island ACLU [full pdf report here] seems to imply that this might be in the works. It outlines a survey done of Rhode Island libraries who filter as part of a consortium, so they share software and expenses, to see how they were handling CIPA-compliance and the filtering it mandated.

See also,, e.g. Walt Crawford.

I decided to engage in a little unpaid free-lance labor, I mean "citizen journalism", and pick up the telephone, call the Rhode Island ACLU (the number's on the press release), and ask.

I spoke with the author of the report, Amy Myrick, Program and Development Coordinator at the RI ACLU. She stated, explicitly on-the-record (I'm careful when I play journalist), that the RI ACLU is not planning an "as-applied" challenge. And as far as she knew, the ACLU did not have such a challenge in the works. So this censorware report was not a precursor to that sort of litigation.

Sadly, a beautiful theory slain by an ugly fact ...

By Seth Finkelstein | posted in censorware | on April 21, 2005 05:25 PM | (Infothought permalink)
April 20, 2005

"Reader's Block": Rhode Island ACLU Report On Library Censorware



This report was written by Amy Myrick, Program and Development Coordinator at the RI ACLU.

The result of censorware in action will be no surprise to readers:

X. CONCLUSION Some ten months after its commencement, Internet blocking in Rhode Island public libraries presents a mixed, but surprisingly troubling, picture. CLAN itself the group responsible for administering the blocking software has harbored mistaken notions that the filters could be "turned off" only on a site-by-site basis, lest compliance be compromised. Individual librarians show similar confusion. Pleading technical handicaps, many have failed to familiarize themselves with the blocking software and its deactivation options. Those that lack this knowledge are placing themselves at the mercy of a private company's technology that should never be permitted to take control.

Same story. Whatever the Supreme Court blithely assumed as an ideal in theory, regarding being able to disable censorware if needed, that's often not how it works out in practice.

All deactivation requires help from the librarian who either supplies or enters the password. In practice, this means that a library's official policy may or may not be followed when a patron makes a request. A recent visit to the Providence Library by the author of this report raised concerns in this regard. There, a librarian responded to a deactivation request for a blocked Google search on nudism with questions about subject matter, judgmental comments, and ultimately a refusal to disable the filter for viewing of what she wrongly characterized as "pornography."

Sigh. These days, I just skim through these sorts of reports out of vanity, to see who is cited, for example:

... [Websense] database's accuracy, however, has been subject to question since free-speech watchdog groups began monitoring it in the late 1990s. The most recent report, released in 2001 by Peacefire.org, found inexplicable blocks on, among others, an educational site about autism (blocked as "gambling"), the Jewish Federation of Northeastern Pennsylvania (blocked as "sex"), and a religious ministry site (blocked as "tasteless").

Noting analyses like the above, the federal court that struck down CIPA in 2002 based its decision partly on the blocking software's inability to distinguish between illegal and protected speech.

I don't know if I should point this out, but if you know the decision, that's a very odd phrasing. Maybe I'm reading too much into it.
[Update 4/21 - per a conversation with the report's author, it looks like I was reading too much into that phrasing]

This is also a good place to note the following: A few months ago, a small civil-liberties organization asked me if I'd be interested in writing one of these kind of briefing missives. With great sadness, I turned it down. They even offered to pay me something as a contractor (however, though we never got down to exact amount, it was clearly going to be nonprofit-organization writer rates, not high-powered lawyer fees). This was an example of the turning-points for me from quitting censorware investigation and poisonous attacks. I'm obviously not in it for the money. If all I'd done over the years was insufficient for me to reach a sufficient reputation-level, a policy paper wasn't going to do me much good. And it could likely even work out negatively personally, if it provided a PR opportunity to smear me and (yet again) I did not receive a defense. So every way I looked at it, I just couldn't justify doing it, on a personal level. The turning-points matter, there's real consequences.

By Seth Finkelstein | posted in censorware | on April 20, 2005 11:59 PM | (Infothought permalink) | Comments (2)
April 19, 2005

Atheist site gods4suckers.net censorware'd as "Cult/Occult"

[Unverified, but specific enough to likely be true]


Saturday, 16 April 2005

God is for Suckers! is now blocked by the SonicWALL Content Filtering System. I found this out because I sometimes use the excellent free wi-fi access at Panera Bread, and they use SonicWALL to filter their content.


But why GifS? It's not porn, and it doesn't advocate violence against anybody (OK, W could use a good slapping, but no serious violence). What's the problem, then? According to SonicWALL, GifS is blocked as "Cult/Occult", ...

Now, there's in fact a very long history of suspicious actions regarding censorware treatment of non-Christian sites, dating back to at least 1997 CyberPatrol vs. Pagan sites

It's important to note it's very hard to prove anything in terms of censorware bias. It's always possible to see patterns which aren't there. But it's also possible that a certain bias can be denied as random error. However, there's grounds for suspicion from research such as Filtering Software: The Religious Connection. Since the censorware blacklists are secret, we'll never know for sure.

By Seth Finkelstein | posted in censorware | on April 19, 2005 10:56 PM | (Infothought permalink) | Comments (3)
April 18, 2005

Where Are The Women Of [Insert Cyber Topic Here]


The Women of IP Law & Policy: More than a Footnote

Siva asks why more women aren't featured at debates like this one, especially when there are outstanding female intellectual property scholars like Rosemarie Coombe, Pam Samuelson, Jessica Litman, Julie Cohen, Ann Bartow, Sonia Katyal, Susan Crawford, Beth Simone Noveck, and Rebecca Tushnet. ...

Meet Shelley:

Better Bad News on Why Guys don't Link

Speaking of which, Mr. Scoble knows of no geek women or women interested in technology or Longhorn (Microsoft's next wonderkid) in Silicon Valley. If you match this criteria - female, tech, Silicon Valley - drop by and say Hi. He also doesn't understand why only guys are asking questions of Jim Allchin, Longhorn architect and O/S VP.

But I should note for myself, while it's true that the rulers of the world are pretty much all white men, very few white men get to be rulers of the world.

By Seth Finkelstein | posted in politics | on April 18, 2005 10:07 PM | (Infothought permalink) | Comments (1)
April 15, 2005

Journalists discover being censorware'd

Preface: A while back, I had long-running (private) argument with an activist who is far better known than me. His view was that I could be much better known myself if I just worked harder (I found this very offensive). My rebuttal was that he had gotten some very good press, for complicated reasons, and basically didn't realize how lucky he was (he found this very offensive).

Well, [redacted], if you're reading this, here is another proof that what matters is press-reach, far more than anything else.


A censorware program typically has many blacklists, not only "pornography". One common blacklist is for pages on free hosts - such as big blog services. Many organizations ban such pages indiscriminately, on a batter-safe-than-sorry theory. This has been known for almost a decade. It's now news.

Tapscott's Copy Desk:

Dan Gillmor has two links that provide information that may well be crucial to everybody who like me uses Blogger or Typepad to host a blog. The bottomline is there appears to be more than a few corporations that don't want employees to be able to access blogs hosted by Blogger or Typepad. That of course won't be the end of it. Credit Robert Ambrogi with breaking this story.

Sigh. There's just no point to my ever doing censorware investigations ever again (yes, I am bitter). If it's not noticed by the gatekeepers, it might as well not exist. And conversely, if it is noticed by the gatekeepers, legally risky, difficult, decryption, is far more than necessary. That's simply the facts of the matter.

[Update: Note James S. Tyre gives an explanation of censorware to other lawyers]

By Seth Finkelstein | posted in censorware | on April 15, 2005 05:20 PM | (Infothought permalink) | Comments (1)
April 14, 2005

"China uses ever more effective Net filters"

From the future :-) (note date):


China uses ever more effective Net filters
New Feature
The Associated Press
Friday, April 15, 2005

NEW YORK The Chinese government has become increasingly sophisticated at controlling the Internet, taking a multilayered approach that contributes to precision in blocking political dissent, according to a report released Thursday.

The precision means that China's filters can block just specific references to Tibetan independence without blocking all references to Tibet. Likewise, the government is effective at limiting discussion about Falun Gong, the Dalai Lama, Tiananmen Square and other topics deemed sensitive, the study from the OpenNet Initiative found.

Numerous government agencies and thousands of public and private employees are involved at all levels, from the main pipelines, or backbones, hauling data over long distances, to the cybercafes where many citizens access the Internet.

That breadth, the study found, allows the filtering tools to adapt to emerging forms of communication, like Web journals, or blogs. ...

[More at the link]

By Seth Finkelstein | posted in censorware | on April 14, 2005 09:25 AM | (Infothought permalink)
April 12, 2005

Censorware Is About Controlling People Not "Filtering", Again

My DMCA opponent David Burt (censorware activist / PR flack ) makes a telling point in a quote in the following newspaper article (annoying registration required) "Snuffing out Net's benefit to democracy":

David Burt, a spokesman for Secure Computing, said the company sells "neutral technology," that customers can use as they see fit. SmartFilter allows a customer to block Web sites in 62 different categories, including religion and ideology.

A company trying to keep employees from spending hours shopping on eBay or reading online newspapers can use SmartFilter and other software programs to block access to those sites. But a censor in Iran or Uzbekistan can do the same to keep the population in the dark.

"We sell to ISPs [Internet Service Providers] all over the world. It's up to them how they employ the technologies," Mr. Burt said.

He said it, not me. Censorware is about controlling people, not "filtering".

To repeat myself: If it works for employers to controls employees, it works for governments to control their citizens. And conversely, if it cannot work for governments to control their citizens, because "The Net interprets censorship as damage, and routes around it" (but "What if censorship is in the router?"), then it cannot work for employers to controls employees. Pick one.

Don't reply: "In my personal value system, I think employers have the right to control employees, while governments do not have the right to control citizens". That wasn't the question. It's an issue of architectural implications.

By Seth Finkelstein | posted in censorware | on April 12, 2005 11:59 PM | (Infothought permalink) | Comments (1)
April 11, 2005

Note To Some Library Folk - You Cannot Hack The DMCA

[In the US, the DMCA, hacks you]

Theshiftedlibrarian - Could the DMCA Exemption for Libraries Lead the Way through the DRM Maze? (thanks, Bruce Umbaugh) quotes a mistaken belief: "The DMCA already has a built-in exemption for libraries and other such nonprofit entities, which means it looks like you're free to convert those problematic encrypted WMA files into MP3 so that the majority of your patrons will be able to access and play said files in a noninfringing manner."

And asks: "... grants are due in June, and this year there's finally a "dream big" one that my organization could apply for. I've already pitched a half dozen ideas, two of which we're probably going to submit and one of which a member library is going to submit. But what if we submitted a grant to actually do what Ben proposes? What would the implications be? Is it realistic?"

Kill this now. I am not a lawyer, but I do know the DMCA cases very, very, well. Don't even think about it. The DMCA provision for libraries is extremely limited, having to do with evaluation of works. The above idea is another version of the problem of "substantial-non-infringing use" versus the DMCA. So far, sadly, the DMCA wins.

By Seth Finkelstein | posted in dmca | on April 11, 2005 11:59 PM | (Infothought permalink) | Comments (2)
April 10, 2005

Lawrence Lessig and "activist's frustration"

Lawrence Lessig reacts unhappily to press coverage. Jon Garfunkel wondered why. This is an opportunity for me to write about net-politics and the press, from the trenches.

There's a particular malady of "activist's frustration". This can happen when someone deeply believes in an idea or cause, spends a large amount of time campaigning for the cause, and then finds their heartfelt efforts reported to a huge audience via at best garbled, confused, impressions in a hurried article by a journalist.

The canons of the craft include an unfortunate practice where it's frowned-upon for the article-writer to actually consult you to check if they got it right. The origins of this procedure are understandable, because for a political investigation, it's just tipping off a target who is likely to be upset. But for an intellectual, who cares passionately about conveying his or her ideas, it's very frustrating to have to suffer someone trying to reduce those often complex concepts to a little squib without even a sanity-check (e.g. "No, I don't really propose eating babies, that part was satire"). Here I don't mean reading back a quote for stenographic accuracy - I mean checking that it conveys what the person was actually trying to say (the Al Gore Internet story is somewhat illustrative, but that was arguably a deliberately malicious misreading).

When the article comes out, people then say "Why are you so upset? What's the problem? It's a reasonable article.". To be fair, it's not always clear whether the activist is overreacting to a merely less than perfect account, or if the other readers simply don't perceive how badly it's been butchered. But this can be another source of annoyance, as the activist is then faced with the task of explaining exactly why the article is so bad, to varying amounts of receptiveness to the concept ("Gee, it said you wanted to eat babies? But how is that different from your well-known concern about infant nutrition? Nutrition is eating, right? Babies are infants, correct?"). And then there's always the comments about how no publicity is bad publicity ("So they called you Mr. Baby-Eater - at least it shows you're important enough to be noticed. Maybe they'll get it right the next time").

There are of course far worse problems in the world. But the human irritation possible in this case should be clear.

By Seth Finkelstein | posted in activism | on April 10, 2005 11:36 PM | (Infothought permalink) | Comments (2)
April 09, 2005

Publicizing Achievements, and Reactions

"How could Nixon have won? Everyone I know voted for McGovern." (probably-apocryphal quote)

The reactions to my being nominated as defending freedom of expression have been almost entirely positive. Nonetheless, I've gotten some criticism about publicizing it.

There's two related variants of critics, asceticism and personal. The asceticism position holds that there should be a social taboo against mentioning one's own achievements, to discourage inflation and puffery. While I understand the general reasoning, and there is some validity to it, I think it can be applied far too restrictively and simplisticly. Privileged people have a multitude of ways to get others to promote them, ranging from outright hiring PR agents who launder press-releases, to just being in a position of power to attract sycophants. Those lower down have no such resources or favors to trade. It's not like I can grant somebody a lot of blog-traffic if they write how wonderful I am.

In terms of personal, well, for many years, I worked anonymously, and willingly let others take the credit. As, e.g. James S. Tyre wrote in an earlier nomination:

"All of what Brock [Meeks] and Declan [McCullagh] wrote came from Seth's work. All of the content of the former Censorware Search Engine came from Seth. ... Seth does not mind at all that it is his crack ... that is the basis of Bennett [Haselton]'s program."

Or Jonathan Wallace:

"The research for this article was all done anonymously by Seth Finkelstein; he did all the work and I got the glory for writing it up.

That was only the beginning; Seth did tireless and brilliant work after that to determine what censorware products really blocked. Seth is one of the heroes of Internet free speech; one of those rare people who do the work despite the fact that they know they will receive no credit."

In retrospect, I actually think I made a big mistake in not taking enough credit, and don't ever want to repeat it, but that's a topic for another post. The years of self-abnegation should be a definitive answer to personal criticism (but, sadly, I know that won't count).

By Seth Finkelstein | posted in activism | on April 09, 2005 11:59 PM | (Infothought permalink) | Comments (2)
April 08, 2005

Cites & Insights April 2005

Walt Crawford recently released the latest edition of his publication Cites & Insights 5:6, April 2005. I consider it my mission in value-added echoing to alert people to the hidden gems deep within and hiding under headings such as "The Library Stuff":

Block, Marylaine, "Libraries: The original `long tail'," Ex Libris 239 (February 11, 2005). marylaine.com/exlibris/xlib239.html

I've mentioned the "long tail" before--and the extent to which I believe it's a fairly typical Wired Magazine situation: An editor grabs a long-standing cultural phenomenon, gives it a cute name, generalizes, and claims it's something New and Special. The concept that most people appreciate and buy (or consume) media and other options far beyond the best-seller list should be familiar to libraries. It's certainly familiar to good bookstores, magazine publishers, book publishers, record companies, and Netflix. Calling it "the long tail" gives Chris Anderson a wonderful new discovery and most likely a book that will be one of those irrelevant best-sellers. Oh that's right: Anderson says the Internet makes the long tail feasible--which is largely nonsense but gives the concept that digital aura of greatness and newness. ...

[The article's author] goes on to quote from an email conversation between her and Anderson (who apparently knows almost nothing about libraries, another consistent Wired trait). That said, read this column. Anderson may be as tired as the rest of Wired, but Block has good things to say, particularly about the importance of libraries maintaining a commitment to deep collections (call it the "long tail" if you must) along with improving marketing savvy.

Oh, there's also many, many pages about the infamous Michael Gorman column.

By Seth Finkelstein | posted in cyberblather | on April 08, 2005 11:59 PM | (Infothought permalink) | Comments (2)
April 07, 2005

More on software licenses and the "Krause" case - the worse, the more valid?

Michael Madison replies, concerning the discussion of software licenses and the case Krause v. Titleserv:

I think that the [Krause] case is important, and Seth thinks that it's less so. I focus on two things. First, though the case isn't the first appellate decision to interpret Section 117 to limit the power of a licensor to declare unilaterally that code is licensed (DSC v. Pulse in the Federal Circuit purports to come to the same conclusion), it's the first significant opinion to make that point a holding, by actually finding in favor of the purported "licensee" In other words, this court puts its money where its mouth is. Second, the opinion is written by Judge Leval, who knows a lot about copyright law and whose opinions and articles on copyright are widely read and respected. He's a heavyweight, and when he speaks, the copyright world usually listens.

I believe - I fear - that it's a very long way from the situation where one programmer did a bad job on the legal specification of the software "license", and hence lost out against a business client (as in the case under discussion), to overruling of the general mass-market "EULA" license imposed by a big vendor (which will surely be drafted by attorneys with a full command of the legal necessities).

I certainly find no comfort from this case myself, due to the differences between the atypical facts and what's likely to be the situation for someone sued for reverse-engineering or copyright violations. Would it be reasonable to paraphrase the current situation as "Ownership of a copy can't be retained by the mere phrase "Licensed not sold" - more is required"? Focusing on the first part of that sentence sounds hopeful, but it appears that the second part is the killer in practice.

Looking at the "DSC" case noted above:

The concept of ownership of a copy entails a variety of rights and interests. The fact that the right of possession is perpetual, or that the possessor's rights were obtained through a single payment, is certainly relevant to whether the possessor is an owner, but those factors are not necessarily dispositive if the possessor's right to use the software is heavily encumbered by other restrictions that are inconsistent with the status of owner.

It all seems to be saying that the more restrictive a licensing "agreement", the more likely a court will find that it is a valid licensed-not-sold situation, and hence the most effective action is to make the "license" as onerous as possible!

In fact, the logical implications of these decisions seems to be to encourage EULA's to be worse, to satisfy the "heavily encumbered" condition.

I don't like that near-paradoxical outcome. But it seems to be the inevitable result.

[Disclaimer: As always, I'm not a lawyer, merely a hare running for his life.]

By Seth Finkelstein | posted in legal | on April 07, 2005 11:59 PM | (Infothought permalink)
April 06, 2005

Reporters Without Borders nominates freedom blogs - including Infothought!

"Vote for freedom of expression blog award-winners!"

International April 6, 2005

Reporters Without Borders is calling on Internet-users to vote online for award-winners from among 60 blogs defending freedom of expression. There are six categories : Africa and the Middle East, the Americas, Asia, Europe, Iran and International.


These awards will be in tribute to webloggers who defend free expression and sometimes pay heavily for it. ...

Now it is up to Internet-users to decide. They may only vote for one blog per geographical category (The International category is of blogs that have a general interest in freedom of expression on the Internet).

Voting closes on 1st June 2005 and the prize-winners will be announced two weeks later.

To register a vote, go to : http://www.globenet.org/rsf/voteblog.php?lang=en

[And in particular, to vote in the International category, where Infothought is nominated, go to:
http://www.globenet.org/rsf/voteblog.php?cat=5&lang=en ]

By Seth Finkelstein | posted in infothought | on April 06, 2005 08:41 AM | (Infothought permalink)

Krause v. Titleserv : software licenses limited - but outlier facts

(Michael) Madisonian Theory discusses a case concerning the "license" vs "owner" issues for software licenses (via Copyfight):

A win for software users: Krause v. Titleserv, Inc. (pdf), ... which contains a long and thoughtful analysis of Section 117 of the Copyright Act by Judge Leval. Section 117 grants certain rights to copy software to the "owner" of a particular copy, a phrasing that software companies have long seized on to justify many of the more onerous provisions of mass market software licenses. If a software user merely "licenses" the software, then (allegedly) the rights of "owners" don't apply. Judge Leval decisively and rightly rejects the idea that Section 117 can be bypassed by the software developer's unilateral characterization of the transaction as a "license." Importantly, the court goes on to hold that the defendant in the case could lawfully exercise the rights of a Section 117 "owner" even though it did not possess formal title to its copy of the program.

Having an intense interest in the topic of such onerous provisions, I spent the time to read through the case. Hold on to the party hats. It's not impressive, in my view (disclaimer: I'm not a lawyer, merely a hare running for his life).

The kicker is in this part of the decision (my emphasis):

We conclude in the absence of other evidence that Titleserv's right, for which it paid substantial sums, to possess and use a copy indefinitely without material restriction, as well as to discard or destroy it at will, gave it sufficient incidents of ownership to make it the owner of the copy for purposes of applying § 117(a)

Virtually every mass-market software license "EULA" has verbiage about terminating the license and restrictions on use. The basis of the court's decision seems to be that the programmer did not properly incant the magic phrases which run approximately "This is licensed, not sold. In the event of a dispute, your license may be terminated. You agree not to do the following list of actions ...".

So I can't see this case having much applicability to the general issue of the enforceability of mass-market software licenses. It's an outlier, where the facts of the dispute are sufficiently atypical so that the result isn't very meaningful regarding problems facing the vast majority of software users.

Moreover, the social framework of the case is a mid-ranking individual versus a business. Reading between the lines, the court seems to be being very expansive in legal construction in order to get to the outcome it sees as proper, of permitting the business use over the individual copyright claims:

Thus, a right to make those changes necessary to enable the use for which it was both sold and purchased should be provided. The conversion of a program from one higher-level language to another to facilitate use would fall within this right, as would the right to add features to the program that were not present at the time of rightful acquisition.

That's a very kind reading of the "right to make those changes necessary". I approve, of course. But given the "judicial flaming" I've now read over the years, I don't think this same kindness is going to be shown to any litigant viewed as a social trouble-maker. So I can't see it being much of a help overall. Sure, it'll go into any argument. But I can't see it'll do much good, sorry.

By Seth Finkelstein | posted in legal | on April 06, 2005 01:09 AM | (Infothought permalink)
April 05, 2005

Censorware vs. Blogs

The following Blocked by Bess (a censorware program) blog story is thought-provoking in a subtle way:

Saturday, April 02, 2005
Blocked by Bess

I work for a school district in PA and recently alot of the students have been able to blog in school. Apparently the Network Administrator has picked up on it because any and all blogs including Yahoo photo's, Flickr, and a host of others are now blocked by Bess, our filter. I won't be able to update from work anymore which really bites. Now I will have to fight over the computer that is connected to my cable modem. ...

posted by Gabby at 12:22 PM

Note this is not really a case of wrong blacklists. Here, the intent of the authorities is to forbid blogs, and that's what being blacklisted.

Rather, the problem is the peer-to-peer issue, appearing in a censorware vs. blogs conflict. If you let students freely communicate with each other (e.g. on blogs) ... they are going to talk to each other about matters that the authorities might not want them to talk about. So no blogs allowed.

Maybe it's considered a "resources" issue here rather than a "harm" issue. That would be more palatable reason for the constraint. Still, somehow, I think the blog promoters are going to have a hard time in this context. Imagine if this was taking place in a foreign country.

By Seth Finkelstein | posted in censorware | on April 05, 2005 12:56 AM | (Infothought permalink) | Comments (4)
April 04, 2005

Slashdot Reject

The topic of the power of the keepers of the media gates is a good occasion for me to give an update on my "Slashdot Prospect" inquiry of a few weeks ago. This concerned whether the recent "Slashdot Editor Upgrade" boded well for me to submit articles again.

Sadly, my query seems to have to been treated to a big fat Minus-One (i.e., ignored). So I'm assuming nothing has changed for me. And don't plan to pursue the question further.

But if I'm such an important accomplished DMCA-winning net-freedom-fighter, how come I can't get a little respect here?

[More reasoning in extended entry]

There's an old joke, that if a therapy patient is late for an appointment, he's hostile, if he is early, he's anxious, if he is exactly on time, he's compulsive. That sums up my Is-it-safe-to-go-back-to-Slashdot? dilemma these days - whatever I do is likely going to be used to attack me. My choice is just a matter of which personal attack should it be:

1) Not trying hard enough - too defeatist, didn't even make the effort, whiner.

2) Trying too hard - wasn't good enough, didn't do it right, submit-spammer.

Let us ponder the various merits and demerits of each case. Now, in theory, option #2 could lead to success of getting submitted articles accepted. In theory. But I believe it's an extremely reasonable position to take that, given the history associated with unfortunate events, prudence dictates some caution. Moreover, it's a tar baby. I'll always be criticized that whatever material I submit is not good enough (after all, there's much competition). Which leads to temptation to push the legal envelope in terms of investigations, in order to show the critics (who will never be satisfied anyway). In my view, the argument for theoretical success is more than outweighed by those extremely high negatives.

In contrast, option #1 is notable for what it's not, as in, not a lot of work. I won't be forever dealing with a swamp of fault-finding. I think I have a pretty good simple reply to the attackers, that certainly satisfies me in my own mind. It's very clean and straightforward - if I can't even get a reply of "It's OK now", I can't be expected to assume it's OK now (and such a reply would be minimal common courtesy).

Note I'm not 100.0% banned from having mentions appear in Slashdot, the problem isn't quite so extreme. But I've never been able to figure out the exact politics of it all. And frankly, I've stopped trying. It's definitely not the simple flame of do-something-newsworthy, because the coverage black-out (till the very end) of my DMCA saga was outright based on grudge-holding (and I bitterly resent it).

The marginalization has significant implications. It shows, objectively, unarguably, just how little my work has been valued overall (note not to the tiny fan audience which is reading this, thanks, but *overall*).

By Seth Finkelstein | posted in activism | on April 04, 2005 09:19 PM | (Infothought permalink) | Comments (4)
April 02, 2005

Blog Gatekeeper Oligarchy Perceived II, Women-On-The-Verge Edition

The ability to perceive power imbalances, if sex-linked, continues to manifest itself in blog discussions, led by women on the verge. What's going on here is the classic case of theory colliding with reality, reality wins, problem occurs for ideology. As a simple fact, the top "influential" bloggers are overwhelmingly white male. That's blindingly obvious. So with regard to blogging being a meritocracy, then EITHER:

1) White males are somehow the most meritorious.


2) The bogosphere is deeply far from being a meritocracy.

Pick one.

But either way, there's a very big problem. It's that simple. Oh, somebody can try to argue out of it - "What's "influential" anyway, huh huh huh? The most populous demographic of (diary) bloggers is teenage girls, so that's where the real "influence" is ...". But it's just hard to do that sort of fogging in the face of the stark reality that nobody is begging the typical teenage girl for a blogroll spot or a mention in a post. Perhaps the best avoidance strategy is simply to flame very loudly for people not to think about it. But the dilemma is going to be visible at all the high-powered conferences. So denial is of limited (not zero, but limited) effectiveness.

Arguing in favor of position #1 is difficult, but there's a bona-fide example in a semi-respectable context by Heather Mac Donald in National Review Online:

Why? Could it be that the premise of the "diversity" crusade is wrong ? that there are not in fact hordes of unknown, competitively talented non-white-male journalists held back by prejudice? ...

Here's a different explanation for why the blogosphere is dominated by white males: because they're the ones producing the best product. Sorry, ladies, but there aren't as many of us engaged in aggressive, competitive opinionizing and nonstop consumption of politics as our male tormentors.

Now (note position #2) compare Halley Suitt:

... they don't understand how you get READ in the blogosphere. As the piece by Heather MacDonald in NRO goes on and on about -- that blogs are free and everyone's equal in the blogging world -- this happens to be true, but completely misses the point. Yes, anyone can write a blog, but it's not about writing -- it's about being READ. ...

Similarly in the blogosphere, who mentions you and who LINKS TO YOU, puts you in premier position on the virtual newsstand to be READ, or without links, to be ignored. ...

Drumroll ... Or, in a word: GATEKEEPERS.

(Once more: She said it, not me. She said it, not me. She said it, not me ...)

And a comment in that post led me to Jenny D: "Journalism and the culture of power":

There is clearly some kind of weird bias among the "blogging elite" with regard to their links and referrers. They link to each other, talk to each other, and only each other. ... [SF: Yeah.]

It's like being a fish...you can't see the water. That's because it's your environment, it's what you know, it is completely attuned to your needs and you are attuned to its characteristics. But everyone who's not a fish...we can see the water. We can see who's in it, and we can see that we're not. ...

Same with the blogosphere. The A-list linkers and the linked don't see that there's any other than this nifty, wide-open, democratic, citizen journalism thing. And they're all sitting around yapping with each other at conferences, and soaking up precious venture capital, ...

Sometimes I wonder why I bother to visit their sites. After all, who cares what they think? But I do because it's the only way to get heard. ... [SF: Yup.]

Doesn't this sound frighteningly like the way these guys describe old media? [SF: YEAH!]

Sigh .... Squeak squeak squeak ...

"The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which." (Animal Farm)

"The creatures outside looked from A-list to MSM, and from MSM to A-list, and from A-list to MSM again; but already it was impossible to say which was which." (Link Farm)

[Disclaimer: This article is written by a white male, but one not a gatekeeper]

By Seth Finkelstein | posted in cyberblather | on April 02, 2005 11:52 PM | (Infothought permalink)
April 01, 2005

Michael Gorman (ALA president-elect) taken down by "Blog People"

Library Journal, April 1 2005:

Michael Gorman, president-elect of the American Library Association (ALA), has stepped down just months before assuming office. "It was the blog people, they did it," said RLG 's Walt Crawford, a friend and co-author (Future Libraries: Dreams, Madness & Reality; ALA, 1995). "They made Mike's life a living hell," Crawford said in reference to the outcry following the publication of Gorman's essay "The Revenge of the Blog People."

... The blog world was buzzing with the rumor that ALA councilor and blogger Karen Schneider would be asked to step in as interim president and inaugurate a "wholly virtual" ALA. ...

Just like the blog-take down of Dan Rather, the strength of the blogolution has been shown. Fear the power of many. It's a New Era.

By Seth Finkelstein | posted in cyberblather | on April 01, 2005 01:35 PM | (Infothought permalink) | Comments (2)