September 27, 2005

Blog Vacationing Again

I'm taking another break, while I finish a paper on Google and society, do a little SEO consulting, and look into setting up something for only my Google material (I definitely need something before that audience goes away because of any, umm, other material I write ... - and non-Alisters have to niche specialize in this conversation-market, unless the sound of your own voice makes you happy).

Back sometimes next week (first week of October), barring anything important.

By Seth Finkelstein | posted in misc | on September 27, 2005 05:05 PM | (Infothought permalink) | Comments (3)
September 23, 2005

Google Print, Statutory Damages, And The Library Exception

Ed Felten ponders:

"... because if Google loses, it won't just have to reimburse the authors for the economic harm they have suffered. Instead, Google will have to pay statutory damages ... In light of the risk Google is facing, it's surprising that Google went ahead with the project."

Aha! Now it all falls into place!

In fact, Google WON'T necessarily have to pay ANY statutory damages. Because of an obscure part of the statutory damages provision:

The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was (my emphasis):

(i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or ...

Google has the lawyer-power where, even if it loses on legal principle, it can likely persuade the judge to let it off the hook for ANY damages because of the "agent of a ...library" exception.

That explains a lot which has been going on. Quite a lot. Truly, follow the money, and much is revealed.

By Seth Finkelstein | posted in copyblight , google , legal | on September 23, 2005 11:01 AM | (Infothought permalink) | Comments (2)

Google Print Is Not Copyright's Enemy-Of-My-Enemy-Is-My-Friend

Siva Vaidhyanathan makes excellent points about the Google Print Lawsuit:

The issue is the effect on the "potential" markets, not the established markets. Because a market exists (and a greater potential market lurks) for licensed digital images of published books, the library project is about that market (see Amazon and Google Print) rather than the market for the physical book. ...

Again, please don't misunderstand me. I am not cheering for the authors here. I am just worried that admiration for Google is clouding judgements. ...

The copyright issue at hand here is not really fair use. That's just trivia.

It is this: Will copyright remain a copy right or will it become a distribution right? Which is better? Which should it become? What are the gains and losses if we were to see such a shift? Would Time-Warner and Disney (both major book publishers) let that happen?

Google is using an "open" business model here: Use the content, or services built on the content, as a loss-leader to draw eyeballs and so sell advertising. This is a venerable, workable, business model. Thus, people then think that boosting Google's use of this business model is a blow against the copyright business model. Therefore, it's called "fair use", it seems to me often more on the basis of this policy advocacy, rather than any detailed legal analysis.

It's an appealing thought. But sadly, I have the sense that in this case we're just replacing one boss with another. This is not an altruistic act where Google is merely contributing to the Commons. Rather, it's strategic business positioning for them. There's nothing intrinsically wrong with that. It's a good move, leveraging their current strengths. However, there's no need to automatically imbue it with an enemy-of-my-enemy-is-my-friend aspect, which isn't necessarily there.

By Seth Finkelstein | posted in copyblight , google , legal | on September 23, 2005 09:11 AM | (Infothought permalink) | Comments (6) | Followups
September 21, 2005

Google Print Lawsuit

The inevitable Google Print Lawsuit has been filed, by the Author's Guild.

The complaint doesn't appear to argue much beyond a simple claim that Google's actions are copyright infringement, the core is:

39. Google has made and reproduced for its own commercial use a copy of some of the literary works contained in the University of Michigan library, which contains the Works that are the subject of this action, and intends to copy most of the literary works in the collection of that library.

40. Google's conduct is in violation of the copyrights held by the Named Plaintiffs and other members of the Class.

As I wrote earlier in Google Print: Copyright vs. Innovation vs. commercial value, I think there are some inherent conflicts here:

That is, the technology company can't be right every time, almost by definition. Because copyright as a limited monopoly fundamentally restricts innovation in some ways. That's the trade-off.

I'm not in the business of writing legal briefs, and I don't have any particular passion for or against Google Print, so I'm not going to go deeply into the fair-use arguments (no point for me in that ...). Anyway, I suspect that it's just going to come down to a whether the relevant judges believe the project is useful or not, which is leading to a perception/PR battle.

By Seth Finkelstein | posted in copyblight , google , legal | on September 21, 2005 02:31 PM | (Infothought permalink) | Comments (3)
September 19, 2005

.XXX domain "for chumps"

[I've written about what I call ".XXX domain pornography", that is, the sensationalism of the concept. I wrote the following message in general agreement with Lauren Weinstein's view that "dot-xxx is for chumps", and my missive was found worthy of the interesting-people list. The context is the recent decision by ICANN to delay domain approval]

Subject: Re: [IP] Open letter: Why "dot-xxx" is for chumps
> From: Lauren Weinstein <>
> So if dot-xxx arrives, my strong recommendation is that you ignore it.
> ...
> Dot-xxx is for chumps.

I concur with Lauren Weinstein's recommendation, but essentially from a different line of reasoning. While I'm not a lawyer, my study of Internet censorship cases indicates that, contrary to much of the censor's hype, there have always been ample defenses for out-and-out commercial pornographers (the battle has usually been over much broader or generally noncommercial expression). For example:

"Perversely, commercial pornographers would remain relatively unaffected by the [Communications Decency] Act, since we learned that most of them already use credit card or adult verification anyway. Commercial pornographers normally provide a few free pictures to entice a user into proceeding further into the Web site. To proceed beyond these teasers, users must provide a credit card number or adult verification number. The CDA will force these businesses to remove the teasers (or cover the most salacious content with cgi scripts), but the core, commercial product of these businesses will remain in place."

Dot-ex-ex-ex does not, in fact, actually DO anything notable in terms of ratings. It's utterly trivial, a standard one-item labeling system (I call these "Scarlet Letters"). These types of systems have been around for years, at no cost (yet), with built-in browser support, not tied to any TLD.

What ex-ex-ex will do, however, is produce an ongoing stream of monopoly rents for the company proposing it (ICM Registry), as speculators, cybersquatters, and site-owners wanting to protect their domain name recognition from the first two groups, all rush to pay through the [censored] for a TLD which basically nobody wants except those who stand to profit from it (obscenely!).

So, instead of making an argument from a free-speech point of view, I'm making an argument from a business point of view. As a product, ex-ex-ex mainly has no value except to enrich the sellers.

By Seth Finkelstein | posted in | on September 19, 2005 11:59 PM | (Infothought permalink)
September 18, 2005

Bubble! Bubble! Bubble!

New Tulip Lands Ahoy! (Techdirt):

The final proof that a new internet bubble has arrived is the fact that we're back to explaining why a huge stock bump on the day of your IPO is bad. It means you got screwed out of a lot of money. ... [The china search engine pop is] nothing, though, compared to (the article calls it, but that's a different site) -- apparently the Japanese version of It debuted today in Japan and promptly jumped 727%. To put in perspective just how ridiculous this is looking, the company raised a grand total of $17 million out of the IPO. That's not all that much, right? Thanks to the stock pop, though, the company is now valued at a whopping $1.24 billion. That could be okay if the company were rolling in cash, but it only had revenue of $20 million for the entire last year.

Only tangentially related, but worth keeping in mind, at least one blogs-are-the-future A-lister has a consulting deal with No secret, it's often-mentioned. But I think the implications of the potential payoffs are interesting.

Remember, when you hear "Markets Are Conversations" - there's no "u" in that phrase - but there is a "con".

Write those diaries, people! The IPO you bubble-up may be their own.

[And all of this is an obvious reason why I should stop wasting my time being a Z-lister, and work more in search]

By Seth Finkelstein | posted in cyberblather | on September 18, 2005 11:59 PM | (Infothought permalink) | Comments (1)
September 16, 2005


Don't Let the GENI Out of the Bottle,1895,1855037,00.asp
By Sean Carton September 1, 2005

"Opinion: A new initiative, dubbed Global Environment for Networking Investigations, wants to build censorware into the Internet."

But what if the Internet changes? What if it becomes possible to control access to content at the infrastructure level? "What if," as Seth Finkelstein said in a retort to Gilmore's aphorism, "the censorship is in the router?" Up until now that really hasn't been the case. GAIN might change that and, by extension, might change the freedoms and anonymity that most know and love, even if sometimes while cringing at the consequences.

By Seth Finkelstein | posted in press | on September 16, 2005 02:07 PM | (Infothought permalink) | Comments (4)
September 14, 2005

Blogging Effects As Quack Medicine

[Context: I originally wrote this as a comment for a discussion of blogging and academic jobs, from a column noting downsides of blogging. See also Blogs can help boost a career or sink it]

[The academic bloggers writes:]

"I just want to observe that blogging has been helpful in a very practical but unexpected way to my academic career."

[I reply]

Ah, but note, this is a classic example of "survivorship bias". If blogging had NOT been helpful, you'd be unlikely to be posting that on a well-read academic blog (not impossible, but much less likely).

I don't mean the following applies to you, but in general: A certain type of blog evangelism strikes me as very similar to the process of selling quack medicine. Any medical quack can usually produce a list of glowing testimonials - "I tried Dr. Blog's All-Purpose Cure-All, and I lost weight, my health improved, I became a magnet for hot members of the appropriate sex, and my career skyrocketed". If one does a scientific analysis, and shows there's no therapeutic positive effect, or even an overall negative effect, the person can always say, "Well, it worked for me!".

But in real medicine, there's a saying, there are no effects without side-effects. Even the safest drugs sometimes kill people through allergic reactions. And it's not because the patient has a bad attitude, or was weak of faith.

In much discussion of blogging, I see very little recognition of what seems to me to be an elemental point - if there are substantial positive effects, there must almost certainly be substantial negative effects. Now, it may be the negative is outweighed by the positive, or can be managed. But there seems almost an outright blindness, an unwillingness to acknowledge that negative effects can and will happen, intrinsically, as part of the nature of the endeavor.

I suspect a large part of this result comes from the fact that blogs have been prominently "sold" by a certain huckster-type, somewhat akin to the quack-medicine man, but here in love with the supposed benefits of personal self-revelation. It's a current version of "Let It All Hang Out". Many of these people are relatively wealthy, so they don't have to worry about career-climbing. Others are professional "outrage-mongers", and well-studied in the ways of making the "personal" marketable.

I see cautions as just a mild corrective to the overbearing hype and cultism, where the potential negatives deserve far more examination than they presently receive. Ever seen the package inserts for even over-the-counter medicine? As in "DO NOT take this if ...". It's easy to parody that sort of warning. But on the other hand, the purveyors of the text equivalent of patent tonics, should be called to greater account.

By Seth Finkelstein | posted in cyberblather | on September 14, 2005 11:46 PM | (Infothought permalink)
September 13, 2005

George Monbiot: "Thanks to corporations, instead of democracy we get Baywatch"

Why We Fight (or in my case, why I fought, past tense), outlined in a Guardian column by George Monbiot:

"It was claimed that the internet and satellite TV would topple dictators, but commercial interest are making sure they don't."

They can write these sorts of things over in UK publications. Like:

"We had the dream that the internet would free the world, that all the dictatorships would collapse," says Julien Pain of Reporters Without Borders. "We see it was just a dream."

Sound familiar:

The technology which runs the internet did not sprout from the ground. It is provided by people with a commercial interest in its development. Their interest will favour freedom in some places and control in others. And they can and do turn it off.


Indispensable as the internet has become, political debate is still dominated by the mainstream media: a story on the net changes nothing until it finds its way into the newspapers or on to TV. What this means is that while the better networking Friedman celebrates can assist a democratic transition, the democracy it leaves us with is filtered and controlled. Someone else owns the routers.

Though I wouldn't put that last idea quite that way, because it phrases the concept badly by putting "internet" and "mainstream media" in opposition. Many of the punditry Big Heads of the Internet are part of the "mainstream media" - or want to be! But the very last part parallels my own aphorism, "What if censorship is in the router?".

Note, for myself, as the sort of analysis I've advocated for so many years becomes more respectable, and makes its way into higher reaches of the punditocracy / chattering classes, many people think I'll get more support for activism. In fact, it seems to mean the opposite, as the colonization process pushes out the natives.

By Seth Finkelstein | posted in cyberblather | on September 13, 2005 11:59 PM | (Infothought permalink) | Comments (4)
September 12, 2005

Jonathan Zittrain's Censorware Adventure

Jonathan Zittrain is a Harvard Law Professor. As relayed by

[He] is at a "cybersafety" conference in the UK this week, where he ran into some breath-taking content blocking. He writes

. . . I searched for the "virtual child pornography case," to find Ashcroft v. Free Speech Coalition. What I got instead was not only a block page, but a note that the IT manager would be investigating whether the "attempted access to illegal material" was intentional or unintentional.

This is very interesting (and worth my echoing) for a non-obvious reason. The details indicate that the keywords in the search triggered the censorware ban (it's obvious why :-)). And what came up was a pretty standard block page, if more verbose than just-the-blacklists-slam:

The webpage you have tried to download has been blocked. This page may pose a threat to network security, or contain offensive, pornographic, illegal or other inappropriate material. Attempted access to blocked webpages is logged and in cases of intentional access computers and users will be traced.

If you inadvertently attempted to access the unauthorised content, no action will be taken.

Intentional access to websites containing offensive, pornographic, illegal or other inappropriate material is in breach of School and University regulations and may lead to suspension of network access and disciplinary action. Browsing or downloading files from websites containing illegal material may lead to criminal prosecution. If you believe the website should not be blocked please contact the Network Manager, Said Business School.

It's not a personal note. But, if a big-time Berkman Center CyberLawProf had the impression, even momentarily, that he might be investigated for illegal access (and it was reported that way, see TechDirt) - imagine what students and library users think! Such intimidation disproves the idea that it's trivial for people to merely ask to have censorware turned off (when they can).

[Disclaimers: I'm acquainted with Jonathan Zittrain, but have no agenda or any project connection in posting this. And no "advice", please. ]

By Seth Finkelstein | posted in censorware | on September 12, 2005 11:51 PM | (Infothought permalink) | Comments (1)
September 09, 2005

"Searching for failure? Try George W. Bush"

The Register notes:

... Google is currently offering the Prez's biography as its top link for the search 'failure':

They don't seem to have realized that this is not a new Google-bomb, but rather some sort of effect of the old "miserable failure" Google-bomb (and possibly also due to transient effect of Google being in the middle of an update). Or maybe they did, but decided it was worth reporting anyway ... [smiley image]

The miserable failure root cause is apparent from George W. Bush's biography being the top result right now for a search for either failure or miserable (because of all the links for miserable failure).

And further proof, Michael Moore's site (similarly Google-bombed) appears as a result for all three searches.

I suspect some of this will change in a few days as the Google update completes. [Update 9/27 - It's a long-lasting failure]

By Seth Finkelstein | posted in google | on September 09, 2005 11:52 PM | (Infothought permalink)
September 08, 2005

Back From Blog Vacation

Back from blog vacation. Interestingly, I seemed to have gained more subscribers recently by NOT posting. Maybe I should do it more often ...

I'm still uncertain as to how much to continue to write. But there's several backlogged items where I think I-should-finish-the-series-of-that-topic.

Upcoming (not necessarily in this order): Belated analysis of the horrible recent Blizzard / BnetD reverse-engineering loss, Cites & Insights 5:11, an essay involving a well-known library-related person, and perhaps Gooooogle.

I keep thinking I should set up a separate site for the Google material, as I have a sense there's an audience for it that, numerically, is almost entirely uninterested in DMCA / censorware / Internet freedom / net politics / "unedited voice". Google analysis also has the richest risk vs. reward ratio of anything I've ever done.

Oh, I have nothing much to say about Hurricane Katrina. My few relevant net-related thoughts would likely just get me in trouble with some A-listers. And for the rest, I suspect I'd just be one of those ranters "pounding on a greasy spot on the pavement, where used to lie the carcass of a dead horse."

By Seth Finkelstein | posted in misc | on September 08, 2005 11:55 PM | (Infothought permalink)