Kremlin plans to control the Net

The Washington Post reckons the Russian government are planning to take over the Net.

"After ignoring the Internet for years to focus on controlling traditional media such as television and newspapers, the Kremlin and its allies are turning their attention to cyberspace, which remains a haven for critical reporting and vibrant discussion in Russia's dwindling public sphere.

Allies of President Vladimir Putin are creating pro-government news and pop culture Web sites while purchasing some established online outlets known for independent journalism. They are nurturing a network of friendly bloggers ready to disseminate propaganda on command. And there is talk of creating a new Russian computer network -- one that would be separate from the Internet at large and, potentially, much easier for the authorities to control...

Many people here say they believe Putin didn't mind a free Internet as long as it had weak penetration in Russia. But with 25 percent of Russian adults now online, up from 8 percent in 2002, cyberspace has become an issue of increasing concern for the government.

Some Russian Internet experts say a turning point came in 2004, when blogs and uncensored online publications helped drive a popular uprising in Ukraine after a pro-Moscow candidate was declared the winner of a presidential election. Days of street protests in the capital, Kiev, led to a new vote that brought a pro-Western politician into the presidency.

Today, the Kremlin is ready with online forces of its own when street action begins.

On April 14, an opposition movement held a march in central Moscow that drew hundreds of people; police detained at least 170, including the leader of the march, chess star Garry Kasparov.

Pavel Danilin, a 30-year-old Putin supporter and blogger whose online icon is the fearsome robot of the "Terminator" movie, works for a political consulting company loyal to the Kremlin. He said he and his team, which included people from a youth movement called the Young Guard, quickly started blogging that day about a smaller, pro-Kremlin march held at the same time.

They linked to one another repeatedly and soon, Danilin said, posts about the pro-Kremlin march had crowded out all the items about the opposition march on the Yandex Web portal's coveted ranking of the top five Russian blog posts."

Senators call for hearings on telcos blocking Net traffic

From SiliconValley.com:

"Two Senators on Friday called for a congressional hearing to investigate reports that phone and cable companies are unfairly stifling communications over the Internet and on cell phones.

Sens. Byron Dorgan, D-N.D., and Olympia Snowe, R-Maine, said the incidents involving several companies, including Comcast Corp., Verizon Wireless and AT&T Inc., have raised serious concerns over the companies' "power to discriminate against content."

They want the Senate Commerce, Science and Transportation Committee to investigate whether such incidents were based on legitimate business policies or unfair and anticompetitive practices and if more federal regulation is needed."

Saudi King gets the Red Carpet Treatment on visit to UK

Johann Hari displays his anger on the front page of today's Independent at the UK government's welcome of King Abdullah al-Saud:

"The truth is that the British Government – and all Western societies – are so addicted to Saudi Arabia's oil that they feel they can't speak back. They are terrified of seeing the petrol that lubricates our economy (or the arms deals that butter it) being turned off, as it was in 1973 oil crisis. It is only by making a rapid transition away from our dependence on fossil fuels that this depraved relationship with a tyranny can be unpicked – but the Government shows no sign of doing this, preferring to stick to the old exchange of sycophancy, arms deals and crude oil.

As The New York Times columnist Thomas Friedman puts it: "Addicts don't tell the truth to their dealers." That's why this week the torturer will be inside Buckingham Palace, and his victims left outside, alone."

Teaching writing through blogging

This is an idea from Clay Burell that I like a lot - teaching writing through blogging.

"Sylvia Martinez on the red-hot GenYES blog writes several posts about getting teens to use Web 2.0 independently - like we adult edubloggers do - to develop their literacy skills in ways that classrooms typically cannot match.

One reason I love Sylvia's posts is that she references reports and data that I don't have the will or temperament to seek out, but which speak almost always to my own priorities as an educator. A case in point: the goal of creating a "LearnerTalk" (but that sounds schooly) of student edubloggers to give us teachers lessons on how our Classroom 2.0 attempts measure up. Sylvia writes that this is already happening spontaneously, which encourages me to seek ways to harness and shepherd that trend into this arena...

Anybody who's taught high school English should know why most students hate to write in schools. It's because they're taught to write badly.

If I assigned any of you to write about ideas that aren't self-selected, in forms that aren't self-expressive, for an over-worked audience of one that puts two or three words, random red hieroglyphs, and a permanently-branded number into a ledger that threatens to determine your fate, face it: you would learn to hate writing (and school) too...

First, students would write self-directed blogs. No homework assignments allowed in terms of subject matter, though standards of style and conventions would be set;

Second, assessment would be based on readership, comments, subscriptions, visitor stats, Technorati authority ranking (with safeguards against fraudulent links, which are easy enough to spot), self-assessment, and other non-authoritarian, teacher-gives-grades assessment styles. (And yes, as usual, it's the institutional but otherwise counter-educational imperative to grade everything that presents the biggest obstacle to this approach to learning.)

--Wait, you say. That's not fair. Some students who are not blessed with verbal intelligence will not attract subscribers, visitors, comments, and so forth. But not so fast: the art of compensation with other intelligences is so much more possible on blogs. Not a great writer? Then compensate by communicating through images (see Diane Cordell's blog), podcasts (see Wes Fryer), films (see Marco Torres and Mabry Middle School), graphic novels and comic strips (see ToonDo). Carve out a niche doing Google Earth productions (see Google Lit Trips) as your blog's specialty. Find some skill you have, or some passion you want to extend, and adapt your blog to exploit that."

Net neutrality

Humanity lobotomy the case for net neutrality. Recommended.

Educational uses of Second Life

I'm one of those who thinks that excitement about Second Life as a great educational forum is a bit of a distraction from what we should be focussing on to get teh best out of technology in education. But Stephen Downes points me to this extensive list of educational uses of Second Life which possibly suggest I should review my perspective.

"This is an overview of some of ways Second Life can be used, and in some cases, has been used for educational purposes. See Further Resources at the bottom of this page for links to more examples and other resources.

We have interpreted the term 'education' very liberally, since, like in real life, learning can occur when 'education' isn't deliberately happening. We see all of Second Life itself as a learning environment. Also, many of the projects listed are not educational projects per se... but point to ways that Second Life can be used in education...

• Distance and Flexible Education
• Presentations, Panels and Discussions
• Training and Skills Development
• Self-paced Tutorials
• Displays and Exhibits
• Immersive Exhibits
• Roleplays and Simulations
• Data Visualisations and Simulations
• Libraries, Art Galleries and Museums
• Historical Re-creations and Re-enactments, Living and Immersive Archeology
• Computer Programming
• Artificial Intelligence Projects
• Artificial Life Projects
• Multimedia and Games Design
• Art and Music Projects
• Literature, Composition and Creative Writing
• Theatre and Performance Art
• Photostories and Photo Scenarios
• Machinima
• Treasure Hunts and Quests
• Virtual Tourism, Cultural Immersion and Cultural Exchange
• Language Teaching and Practice, and Language Immersion
• Social Science and Anthropological Research
• Awareness/Consciousness Raising and Fund Raising
• Support and Opportunities for People with Disabilities
• Politics, Governance, Civics and Legal Practice
• Business, Commerce, Financial Practice and Modelling
• Real Estate Practice
• Product Design, Prototyping, User-testing and Market Research
• Interior Design
• Architectural Design and Modelling
• Urban Planning and Design
• Further Resources"

The investment in acquiring Second Life user skills remains a significant barrier to the use of the environment widely in education, though it certainly continues to have potential.

Blackboard tactics

From Michael Feldstein:

"Blackboard apparently sponsored a spy to go to the D2L user conference and report back on the events and even had an employee pose as a university employee (with a fake email address) to gain competitive information...

Also, Blackboard’s communications with its PR firm apparently say that, while the public story around the patent is that they are protecting their intellectual property, the “real” purpose was to “contain and control” D2L. So the goal is to distract the #2 vendor in the LMS space with a costly lawsuit. Not only has Blackboard known all along that their lawsuit could damage competition in the LMS space (as I and others have argued); they explicitly intended to damage competition, as the court documents apparently show. Judging by the amount of traffic I saw at the D2L booth this week here at EDUCAUSE, it looks like they failed...

D2L is preparing to file for a summary judgment, which is not surprising given that they have already gotten two thirds of the patent claims ruled invalid by two different judges. Sadly, since Blackboard’s motive is apparently to cost D2L as much money as possible regardless of their chances of winning in court, it seems virtually certain that Blackboard would file an appeal if they lose."

Desire2Learn apparently posted details of the Blackboard behaviour on their website - further details of which Feldstein says would cause a certain queasiness - and then got a threat from Blackboard's lawyers, so took down the post rather than get involved in more protracted legal wrangling over that as well.

Parliamentary Question on Usmanov

Jeremy Corbin has been asking a question in parliament about Alisher Usmanov.

"Jeremy Corbyn (Islington North, Labour) | Hansard source

To ask the Secretary of State for Foreign and Commonwealth Affairs if he will publish reports received from British embassies relating to Alisher Usmanov.

Jim Murphy (Minister of State, Foreign & Commonwealth Office) | Hansard source

Such information would constitute personal data. A request for personal information brings into play the relevant legislative provisions on data release by the Government and would require the consent of the individual concerned."

Spyblog says:

"This reliance on alleged "personal data" exemptions to the Data Protection Act and the Freedom of Information Act and to Parliamentary Questions, by the Foreign & Commonwealth Office is puzzling.

They are not invoking "national security", which one might expect them to do, regarding the so called "confidential telegrams" (i.e. communications between an Embassy and the FCO, which are more likely to be secure emails these days, than actual telegrams) or even Open Source Intelligence, which former UK Ambassador to Uzbekistan Craig Murray has mentioned regarding Alisher Usmanov's criminal convictions and pardons, and his allegedly corrupt links with the Moscow and Tashkent ruling presidential cliques."

Leave no marks

Physicians for Human Rights and Human Rights First have published a sobering report, Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality.

Copyright hits the Republican presidential race

Apparently John McCain has been told to extract Fox news clips from his adverts but Rudy Giuliani has been allowed to used loads of Fox material, including the dame material they have demanded McCain deletes. Mitt Romney also has Fox footage but as yet has not received a cease and desist letter. I take it Mr Murdoch, thought to be a close friend of Giuliani, is not too keen on McCain then? McCain is unlikely to get the Republican nomination (though Murdoch's henchmen must be concerned?) but I hope he learns a lesson from the Fox action about the abusive actions of certain types of IP businesses.

How many days

Also via Jason Schultz:
How many days of the Iraq war could be used to pay for healthcare for children?

More thoughts on Grokster

Jason Shultz shares his thoughts on the latest decision in the Grokster case.

"Over two years after the Supreme Court's decision in MGM v. Grokster, the trial court has issued its ruling on remand concerning whether and what type of permanent injunction should issue against Streamcast, the lone remaining defendant/manufacturer of the P2P file-sharing software at issue. (Grokster previously settled out of the case).

The order is quite lengthy -- 83 pages -- and contains a wealth of analysis. Of particular interest is the court's analysis of whether or not there should be a presumption of "irreparable harm" in favor of an injunction. Traditionally, many courts had presumed when intellectual property rights were involved that such presumptions were proper in order to preserve the IP owner's exclusive right to control their copyrighted or patented material. However, after the Supreme Court's recent eBay v. MercExchange decision, courts have been questioning this presumption, asserting that IP case are like any other civil case and IP owners should not receive special favors toward meeting their burden of proof.

However, despite finding there is no presumption, the court goes on to find irreparable harm to copyright owners from the P2P software provider for two reasons:

1. Streamcast's inability to pay statutory damages for all the files it induced infringement of, and
2. The ongoing viral nature of infringements empowered by the P2P architecture that Streamcast helped to create.

On this second point, the court emphatically states that StreamCast is responsible for irreparably harming copyright owners because Morpheus end-users "obtain 'perfect copies' of Plaintiffs' work that can be inexpensively reproduced and distributed ad nauseam."

It also found that StreamCast's inducement has "eviscerated Plaintiffs' ability to protect and enforce their statutorily-created property rights" because "Plaintiffs' power to control their rights has been so compromised by the means through which StreamCast encouraged end-users to infringe (digital files plus the internet) that the inducement amounts to irreparable harm."

So, if one follows this logic, a viral distribution system on the internet could well lead to a presumption of irreparable harm for any infringements it induces. Given that the power of the Internet is based on such dynamics and efficiencies, this could be a dangerous rule for future distribution technologies."

And

"So what's a court to do? Well, instead of simply mandating that StreamCast stop all infringement, it sorts through the various options and settles on filtering. While the court justifies filtering on the premise that it is an option that will not shut down the Morpheus system (an overboard approach) but still addresses the issue of infringement, I also think the court found it to be the most flexible option, leaving it with a feeling that it could easily revisit the issue by raising or lowering the sensitivity and burden of the filtering requirements as needed.

In discussing the scope of the filter, the court quickly dismisses any requirement that it be "perfect" as that would effectively shut down StreamCast and ban distribution of the Morpheus software. Instead, the court required StreamCast "to reduce Morpheus's infringing capabilities, while preserving its core noninfringing functionality, as effectively as possible." This boils down to two things:

1. Installing a filter as part of future Morpheus software distributed to the public; and
2. Taking steps to encourage legacy users of the old Morpheus software to upgrade to the new filtered versions.

Of course, phrases like "effectively as possible" are bound to be the subject of dispute, but the court did make it clear that it is not expecting StreamCast to go bankrupt trying to filter out every possible work. It also required the Plaintiffs to submit information about each copyrighted work to be filtered so that StreamCast couldn't be held in contempt for innocently leaving out a song or movie from its list. Finally, the court ordered the appointment of a special master to help evaluate the "highly technical" aspects of StreamCast's implementation of the filtering program and how effective it should and can be.

One other interesting aspect of the court's decision was its discussion of whether a company distributing a P2P system found to be inducing infringement could ever be free of its intent to induce. In this decision, the court found that no, it could not. Once an inducer, always an inducer, or as the court said, "The bell simply cannot be unrung." This means that tech companies must be extremely careful never to be found to be inducing, else they forever bear that mark in litigation."

It all sounds very much like the decision in the Australian Universal v Sharman (Kazaa) case and sure enough teh parties got into a legal tit for tat last year with the music companies accusing Sharman of not doing enough to follow the judge's order and Sharman responding in kind ending with complicated contempt of court proceedings. Ed Felten says of the latest Grokster decision:

"The judge first rejected the plaintiff’s proposal that StreamCast be required to stop all infringement using its software. He recognized, correctly, that that would be impossible, so that such an injunction would be a death sentence for StreamCast.

Instead, the judge will require StreamCast to set up a filtering system that reasonably balances effectiveness and cost, with the strong emphasis on effectiveness. The precise details will be worked out with the help of a special master: an independent technical expert to be appointed by the judge. Which means yet more legal process to choose the special master, wait for the special master’s advice, and then order specific action from StreamCast.

All of this may be proper from a legal standpoint, but it seems unlikely to matter in practice. It’s hard to see how StreamCast can sustain a business given the legal and financial strain they must be under, and the likely ruinous monetary damages they’re still facing. I can understand why the plaintiffs might want to keep StreamCast on life support, in the hope of getting legal rulings that prove helpful elsewhere. But why does StreamCast keep fighting?"

Any guesses on how long it will be until first lot of contempt of court proceedings?

When Copyright and Privacy Collide

Anita Ramasastry: When Copyright and Privacy Collide

6 minutes from a Total Surveillance Society

The ACLU's Surveillance Society Clock set Jeff Jonas to thinking what series of plausible events might lead up to total surveillance.

He came up with:

"11:54pm – All cell phone are GPS enabled...

11:55pm – RFID chips everywhere...

11:56pm – Biometric user authentication is added to cell phones...

11:57pm – Cell phones become RFID readers...

11:58pm – Cash is replaced by cell phone debit...

11:59pm – All persons carry cell phones at all times...

12:00am – Welcome to the Total Surveillance Society...

Now what?

Well, if this is the future, then I think here are some key considerations:

1. Under what condition and authority can an actor (i.e., a person, an organization, a government) look at what data, and when?

2. How will we know when an actor is breaking the rules?

3. Will oversight and accountability be easier in a total surveillance society?

4. How do we make sure that access to extraordinary knowledge is not limited to a few? And, how do we ensure that data about us is knowable by us?

5. For the few people that resist being plugging into the matrix – will they be less employable, less trustworthy, or suspected of hiding criminal activity?

With all this in mind, it seems ever more important that the technology community better engage the privacy community – there simply is not enough conversation going on between these two camps – and time is of the essence. [See: Responsible Innovation: Staying Engaged with the Privacy Community]

Why are more people not working on privacy-preserving technology e.g., anonymization, immutable audit, selective revelation, data masking, data expiration and destruction services, etc. – and more importantly why are not more organizations starting to take advantage of these emerging privacy-enhancing alternatives?"

Gore for Vice President?

Jonathan Zittrain thinks Gore should run for vice-president again.

Lessig interview on corruption in politics

There's a really interesting interview with Larry Lessig on Danish TV. He's talking about his 'new' project to tackle corruption in politics.

"In America it is because so much of politics is guided by money."

"Our government cannot understand basic facts when strong interests have an interest in its misunderstanding."

Larry's first hour long lecture on the subject is available at his blog.

Max Planck Society End Springer Deal Over Pricing

From the Library Journal:

"The Max Planck Society (MPS), a major German research organization, issued a strongly worded statement this week to announce it was cancelling access to Springer's online collection of journals over pricing. The cancellation will take effect as of December 31, 2007."

Why Grand Theft Auto Should Be Taught in Schools

Henry Jenkins in interviewing David Hutchison has been thinking about why Grand Theft Auto should be taught in schools.

"I want to introduce you to David Hutchison, the author of a recently released book, Playing to Learn: Video Games in the Classroom. Hutchison's book promises over 100 game activities appropriate for classroom use, a selection that spans across academic subjects (language arts, mathematics, science, social studies, history, geography, health & physical education, drama, music, visual arts, computers, and business) and grade levels (including both elementary and high school).

What motivated you to write this book? Why do you think teachers should be incorporating games more fully into their classroom activities?

I wrote this book in part because I enjoy playing video games myself and I am always looking for synergies between my play time and my work time as a teacher educator and university professor... I believe that video games should be referenced in the K-12 classroom for a variety of reasons. First, video games can provide teachers with an effective instructional "hook" since so many students are gamers in their out-of-school lives. Second, many (younger) teachers are also gamers. Through gaming, they have cultivated a knowledge base which can serve them well as part of their pedagogical toolset...

It strikes me as nonsensical that so many students and their teachers may be going home at night to play the same games, but then returning to the school the next day with no intention of ever sharing their mutual passion for video games.

I would also say that from a cultural point of view, I see some video games as harbingers of the future. They play with the "world" - past, present, and future - in ways that are impractical (sometimes impossible) in the real world. Some games purposefully bend the laws of physics in exploring new virtual gameplay ideas. Multiplayer video games (and the Internet more generally) experiment with new forms of social organization that go beyond our everyday ways of living.

All of this strikes me as pedagogically interesting and worth studying in K-12 schools...

I would say that my book is more focused on traditional teaching and learning techniques in which the video game is studied as a cultural artifact, rather than "lived through" as an embodied pedagogical experience. Activities which ask students to write a video game review or analyze the leaderboard statistics for a driving game in math class, for example, are fairly approachable by most teachers. They essentially treat the video game as a manipulative that can be utilized as a pedagogical tool by teachers in a wide variety of subject areas...

In writing the book, I set it as a goal for myself to incorporate the Grand Theft Auto series into at least one activity. (The "Hot Coffee" controversy was brewing around me as I began writing the book :) The GTA activity I chose tasks students with creating their own kid-friendly open-world game that doesn't include all the adult content we normally associate with games in this franchise.

I also wanted to encourage teachers to deal with controversial ideas related to video games. There are contributed discussion articles in the book that address debates related to video games and violence, video game addiction, gender bias in video games, and health and video games.

My sense is that the book could have been roundly criticized - and rightly so - if I had chosen not to deal with the many criticisms made of video games - for example, that they produce obese layabouts with no social contacts in the real world who are prone to violence and live in a fantasy world 

Discussing the above stereotypes in class is worthwhile in my view. Studying these stereotypes by having students conduct research to test their veracity is even better. There are also activities in the book that aim to help students effect personal lifestyle changes related to their video game playing habits, such as paying close attention to their posture and reducing the amount of time they spend playing video games each week."

It's nice to see that some people out there do get technology in education.

Pangloss on TV links shutdown

Lilian has some sharp commentary on the TV Links shutdown.

"An interesting if rather sketchy report from The Guardian that UK-based TV Links site has been closed down after a raid by a combination of Trading Standards officials, Gloucester police and FACT (Federation Against Copyright Theft). The question is what were the grounds? ...

The case is interesting because TV Links site is an ordinary website giving links to content which constituted (in some cases) infringing copies of copyright works eg Dr Who, Buffy et al. The site is not a host nor is it obviously "inciting" or "inducing" users to infringe as say Kazaa/Grokster did. It could be argued in fact that it does little more than what Google routinely does - makes links available to infringing copies and leaves the user to decide what to do next."

Aaron Swartz on the Open Library Project

Aaron Swartz gave a talk at the Berkman Center this week on the Open Library Project. he also did a Q&A session.

"Q.You are working on creating the Open Library, an online database that contains all the world's books for anyone to view. What kind of significance does this project have in our age?

I think this is one of the grand challenges for the Internet era. The vast majority of our cultural legacy is in books -- books are where you go when you have a great idea you want to share, a great story you want to publish, a classic piece of art -- it's hard to understate their importance. But in an era where few people venture beyond a search engine when doing research, making these resources more available for Internet users a crucial challenge...

Q.Do you think publishers are threatened by the Open Library concept as record labels are with free music file sharing?

Not at all; the publishers have been extremely helpful. We're only scanning books that are out-of-copyright, which is a small minority of what's being published. For the other books, we're working with publishers and libraries to make them available in every way we know how: through purchasing online or in a local bookstore, picking up a copy in a library or through digital interlibrary loan, etc. We're helping publishers get the word out about their books...

Q.How is the Open Library project different from Google's project to make an online book archive?

Google is scanning a lot of books but they're not doing much more than just putting them online. We want to do much more than that and become the hub for information about books. We let users come to our site and add more information to their favorite books, find the books in various places, browser and sort by categories, and so on.

FBI concerned at 'evidence' extracted by torture

The LA Times reported earlier in week that:

"Current and former FBI officials said ... CIA techniques resulted in false confessions that were obtained illegally.

By mid-2002, several former agents and senior bureau officials said, they had begun complaining that the CIA-run interrogation program amounted to torture and was going to create significant problems down the road -- particularly if the Bush administration was ever forced to allow the Al Qaeda suspects to face their accusers in court.

Some went to FBI Director Robert S. Mueller III, according to the former bureau officials. They said Mueller pulled many of the agents back from playing even a supporting role in the interrogations to avoid exposing them to legal jeopardy, in the belief that White House and Justice Department opinions authorizing the coercive techniques might be overturned.

"Those guys were using techniques that we didn't even want to be in the room for," one senior federal law enforcement official said. "The CIA determined they were going to torture people, and we made the decision not to be involved."

A senior FBI official who since has retired said he also complained about the lack of usable evidence and admissible statements being gathered."

Marty Lederman has some other news on the US approach to torture front, relating to a letter that 10 Democrats on the Senate Judiciary Committee have written to President Bush's latest nominee for Attorney General, Judge Mukasey, "daring him to continue to express agnosticism on the question of the legality of waterboarding." No Republican signed the letter.

The dead celebrities bill

Dead celebrities in California can now breathe easier, according to the NYT, in the knowledge that Arnie has signed a dead celebrities bill enabling the estates of those celebrities who died before 1985 to benefit from exploiting their publicity rights. Up until now only the estates of those who died in 1985 or later could do so.

"The notion that celebrities could even confer the right to cash in on their personas post mortem was in dispute until 1984, when the California Legislature passed a bill that allowed stars to leave such rights in their wills. In May of this year, however, two federal courts interpreted the bill with regard to the Monroe estate in a way that excluded her and other celebrities who died before the Legislature’s action.

In two federal cases heard this spring in the Central District of California and the Southern District of New York, judges ruled that only those who died after 1985 could bequeath rights of publicity. The effect was to make the Monroe estate unable to prevent the unauthorized exploitation of her image and likeness, whether on a calendar, a T-shirt or a coffee mug.

With some nudging from the Screen Actors Guild and the Monroe estate, the California Senate drafted clarifying legislation. Senate Bill No. 771, affectionately known as the Dead Celebrities Bill, passed without objection and was signed by Gov. Arnold Schwarzenegger earlier this month."

Marilyn Monroe left her worldly goods to her acting coach, Lee Strasberg, who died in 1982. The main beneficiary of Strasberg's will was his second wife, someone with no connection to Monroe. Now 25 years after her husband's death and 45 years after Monroe's, however, she (and presumably her heirs on her death) is entitled to several million dollars in revenues generated every year by Marylin Monroe memorabilia. It must be a bit like winning the lottery.

It all kinda reminds me of the closing paragraph in Theodore Steinberg's, Slide Mountain: Or The Folly of Owning Nature,

"Even Henry David Thoreau, nature lover though he was, could not help dreaming about owning a slice of the earth he loved so much... Then he ventured on before his fingers got "burned by actual possession." As he wrote, "Man is rich in proportion to the number of things he can afford to let alone." By Thoreau's standards the modern American landscape is a very poor one indeed."

Brown turns civil libertarian

Why do I find it really hard to believe that Gordon Brown's speech on liberty, as reported by the Beeb, is nothing more than smoke and mirrors. He has apparently called for a Bill of Rights (probably an excuse to abolish the Human Rights Act - a Conservative idea), a review focused on the protection and extension of the Freedom of Information Act to the private sector, a review of the effective prohibition of protest in Parliament Square and a review of the sharing of personal data in the public and private sectors. He even praised Richard Thomas, the Information Commissioner, who has been a calm and rational critic of the government's vast extension of the surveillance state and their ID card plans in particular.

I suspect the clue is in the word "review". The reviews which come up with government friendly answers will be widely proclaimed in the media and those which can't be appropriately spun will be quietly lost or declared to contain commercially sensitive or national security threatening information.

Microsoft snatch Facebook deal from Google

Microsoft has won the battle with Google and Yahoo to secure a small stake in Facebook.

"The two companies said on Wednesday that Microsoft would pay $240 million for a 1.6 percent stake in Facebook. The investment values Facebook, which is three and a half years old and will bring in about $150 million in revenue this year, at $15 billion...

The astronomical value placed on Facebook is evidence that Microsoft executives believed they could not afford to lose out on the deal. Google appears to be building a dominant position in the race to serve advertisements online. Fearing it might lose control over the next generation of computer users, Microsoft has been trying to keep up with and in some cases block Google’s moves, even if that effort is costly."

Italians aim to censor bloggers

I thought I had reported the story about Italian politicians attempts to censor critical bloggers recently but apparently not as it doesn't appear to be included in the past couple of weeks entries here. The Times had a report on the story yesterday. The Italian minister for justice, Clemente Mastella, and various colleagues in government have been getting a bit hot under the collar at criticism directed at them e.g. by Mastellatiodio.blogspot.com (literally translated this apparently means 'I hate you Mastellatiodo'). They've encouraged the Italian police to encourage Google to take that one off-line but now in addition they are planning a law which would require all bloggers to effectively be registered and approved by the state. The author of the Times piece seems to think:

"We’ve been down this road countless times. Panicky government officials, whether they are in Harare, Beijing or Rome (yes, this is the second time it’s been proposed here), pronounce a brand new muzzle for the internet, and clever netizens simply find a way around it."

I doubt the Chinese blogger doing ten years in jail after being fingered by Yahoo would encourage such complacency. Gilmore's mantra that the Net interprets censorship as damage and routes around it was never entirely accurate but it is significantly less so these days with broadband network architectures, massive data retention and the choke points that the ISPs always were.

Fingerprints come to German passports

From the latest EDRI-Gram: Fingerprints in passports: the German population in a risky experiment

"On 1 November 2007, registration offices throughout Germany will begin collecting fingerprints from all citizens wishing to travel. Two years after the storage of a facial image on an RFID chip has been introduced, the project of full biometric registration of the whole population continues. Germany's Chaos Computer Club (CCC) points out once more that the ePassport has risks and side-effects, which particularly affect senior citizens.

Many older people will have problems giving fingerprints. Experience as well as international and German studies show that considerably more than 10% of all senior citizens must expect to have no recordable fingerprints. This will inevitably expose them to discrimination through tightened inspections and longer delays. People working intensely with their hands will face the same disadvantages.

The CCC advises that only a few days are left in which passports without fingerprint registration can be applied for in German registration offices. Even people whose passport is still valid can apply for a new passport, thus evading the German authorities' data collection mania until the Federal Constitutional Court rules on the compatibility of the new measures with the German constitution.

Even according to the German government, there is no measurable gain in security through biometric passports. This is proved by the written answer to a parliamentary question. As CCC speaker Dirk Engling says, "the introduction of this risky technology seems to be motivated mainly by the commercial interests of a few current and former members of the government - this should really be a case for the Corruptions Perceptions Index of Transparency International".

The extent of the threat posed by biometric data on RFID chips is illustrated by none other than Jörg Ziercke, president of the Federal Criminal Office. Despite all assurances by his "experts" that the biometric data is "safe", he wears his own biometric passport in a protective cover to shield it against radio waves. The Federal Foreign Office has also shown its distrust of the security promises of the Interior Ministry: German diplomats will receive passports without RFID chips due to the "higher threat levels" they face.

Fingerprints in passports: the German population become guinea pigs in a risky experiment (only in German, 16.10.2007)
http://www.ccc.de/updates/2007/risikoexperiment-reisepass?language=de

German government confirms that biometric identification documents are pointless (only in German, 20.06.2007)
http://www.ccc.de/updates/2007/biometrie-unsinn-deluxe?language=de

(Contribution by EDRI-member Chaos Computer Club - Germany, translation by Sebastian Lisken, FoeBuD e.V.) "

Cory from copyright to privacy

Check out Chris Vallance's interview with Cory Doctorow, who is as convincing as ever on a rnage of digital rights issues from copyright to privacy. Thanks to Suw at ORG for the pointer.

Is ACTA the New WIPO?

It seems that the US, EU, Japan South Korea, Mexico, New Zealand, and Canada and the IP industries have had enough of WIPO and pesky consumer organisations and development agendas etc. and have decided to get their tailored international IP laws through a new international forum which doesn't facilitate awkward questions...

Michael Geist wonders Is ACTA the New WIPO?

"It has been readily apparent for a number of months now that "counterfeiting and piracy" is the new focal point for intellectual property policy reform. With global conferences, legislative hearings in national capitals, and new anti-counterfeiting coalitions, copyright lobby groups have jumped on the anti-counterfeiting bandwagon. While the claims regularly focus on health and safety risks or suggestions that organized crime or terrorist groups benefit from counterfeiting, the reality is that the policy prescription typically includes a range of issues that have little to do with those issues. These include anti-circumvention legislation, higher damages, and an increased use of public tax dollars to provide protection for private commercial interests.

The strategy has proven remarkably effective. Despite the absence of any independent data (indeed, there is evidence that some numbers have been fabricated), politicians are easily convinced that action is needed since the lobbyists often come armed with compelling props (exploded batteries, unsafe toys) and no one actually supports counterfeiting. Of course, the issue is not whether you are for or against counterfeiting, but rather whether the proposed reforms have anything to do with health and safety or significant economic concerns...

This treaty could ultimately prove bigger than WIPO - without the constraints of consensus building, developing countries, and civil society groups, the ACTA could further reshape the IP landscape with tougher enforcement, stronger penalties, and a gradual eradication of the copyright and trademark balance."

This is potentially quite seriously bad news and something to be monitored closely.

Microsoft reach a deal with the EU

Pamela Jones seems to think that Microsoft's lawyers have pulled the wool over the EU Competition Commissioner's eyes again.

Research libraries join Open Content Alliance rather than Google book

The NYT is reporting that:

"Several major research libraries have rebuffed offers from Google and Microsoft to scan their books into computer databases, saying they are put off by restrictions these companies want to place on the new digital collections.

Robert Spencer for The New York Times

Bernard Margolis, president of The Boston Public Library.

The research libraries, including a large consortium in the Boston area, are instead signing on with the Open Content Alliance, a nonprofit effort aimed at making their materials broadly available.

Libraries that agree to work with Google must agree to a set of terms, which include making the material unavailable to other commercial search services. Microsoft places a similar restriction on the books it converts to electronic form. The Open Content Alliance, by contrast, is making the material available to any search service."

International Music Score Library Project (IMSLP) Shut Down

Also from the ORG list: the International Music Score Library Project (IMSLP) has been shut down due to legal threats by lawyers acting on behalf of Universal Edition. The student who has maintained the site says:

"Dear International Music Score Library Project (IMSLP) Contributors, Users and Supporters:

I really tried.

What follows in this open letter is what I hope will be an accurate reflection of my tumultuous thoughts in the past few days.

On Saturday October 13, 2007, I received a second Cease and Desist letter from Universal Edition. At first I thought this letter would be similar in content to the first Cease and Desist letter I received in August. However, after lengthy discussions with very knowledgeable lawyers and supporters, I became painfully aware of the fact that I, a normal college student, has neither the energy nor the money necessary to deal with this issue in any other way than to agree with the cease and desist, and take down the entire site. I cannot apologize enough to all IMSLP contributors, who have done so much for IMSLP in the last two years.

I also understand very well that the cease and desist letter does not call for a take down of the entire site, but, as I said above, I very unfortunately simply do not have the energy or money necessary to implement the terms in the cease and desist in any other way. Prior to this cease and desist I was already overloaded with server maintenance and the implementation of new features (as some of you know). I do not intend this to be an excuse in any way, but I do hope that IMSLP users and contributors may understand, even if very slightly. At the same time, I again apologize profusely to all IMSLP contributors that it has come down to this.

Another major reason behind me taking the server down is the fact, which I have been made painfully aware of in the last few days, that I can no longer support IMSLP adequately. Rather than limping along and having to take down the site later on, I believe it is best to take the site down right now, so as to not waste the further efforts of IMSLP contributors.

I have to thank here the great efforts on the part of two outstanding university law teams with regard to this case, and the very helpful advice and assistance that I have received pro bono. I cannot imagine what I would be like right now without their legal and moral understanding and support...

So what happens now?

I will keep the IMSLP forums online for as long as there is interest. You may access it at imslpforums.org.

I will release the IMSLP Mediawiki extensions to the public in the hopes that other people will find them useful. I will also prepare a copy of the IMSLP Mediawiki database (i.e. the text on the site), with private information removed, and send it to anyone who requests. The IMSLP extensions are licensed under the GPL, and the IMSLP Mediawiki database is licensed under the GFDL. This letter itself is licensed under the Creative Commons Attribution 3.0 license.

In addition, I will be willing to help and transfer the five IMSLP domain names to any organization who would like to continue IMSLP in some form or other; please contact me via imslp@imslp.org if you are interested.

If you have any questions or comments for me regarding IMSLP or this situation, please send an e-mail to imslp@imslp.org, and I will try to answer all of them. You may also use the forums if you believe that the question can be answered by other IMSLP contributors. Translations of this letter are very much welcome; you may post them on the forums, and I will move them to the main site. "

Slashdot has picked up the story. I'm sure there must be some a2k-inclined organisation which would be prepared to host the bulk of the public domain materials from the site. Let's hope so anyway.

Update: Michael Geist and Howard Knopf have a thing or two to say about the case. Here's Michael:

"The International Music Score Library Project was a quiet Canadian success story. Using wiki technologies, it emerged over the past two years as a leading source of public domain music scores, hosting thousands of scores uploaded by a community of students, teachers, and others in the music community. The site was very careful about copyright - only those works in the public domain (as many readers will know, public domain in Canada is life of the author plus an additional 50 years) were hosted on Canadian servers and the site was responsive to complaints about possible infringements.

On Friday, the site was taken down. Universal Edition AG, an Austrian publisher, retained a Toronto law firm to send a cease and desist letter to the Canadian-based site claiming that the site was infringing the copyright of various composers. It appears that the issue was not that posting the works in Canada infringed copyright but rather that some of the works were not yet in the public domain in Europe, where the copyright term runs for an additional 20 years at life of the author plus 70 years. As is so often the case, a labour of love for a large, non-profit community was wiped out with a single legal demand letter.

In this particular case, UE demanded that the site use IP addresses to filter out non-Canadian users, arguing that failing to do so infringes both European and Canadian copyright law. It is hard to see how this is true given that the Supreme Court of Canada has ruled that sites such as IMSLP are entitled to presume that they are being used in a lawful manner and therefore would not rise to the level of authorizing infringement. The site was operating lawfully in Canada and there is no positive obligation in the law to block out non-Canadians.

As for a European infringement, if UE is correct, then the public domain becomes an offline concept, since posting works online would immediately result in the longest single copyright term applying on a global basis. That can't possibly be right. Canada has chosen a copyright term that complies with its international obligations and attempts to import longer terms - as is the case here - should not only be rejected but treated as copyright misuse.

Update: The lawyer for Universal Edition AG has contacted me to advise that some of the works on ISMLP allegedly infringed Canadian copyright as being within life of the author plus 50 years. It is not clear, however, whether UE actually provided the site owner with a list of those works (the posted letter certainly does not include any such list). "

Becta report Microsoft to OFT

Again from Glyn via ORG: Becta reports Microsoft to OFT

Update: Another false dawn for open source in UK schools?
Becta refers Microsoft to the Office of Fair Trading

TV-Links website owner arrested

Thanks to Glyn at ORG for the pointer to this: TV Links shut down for linking

The guy that runs the TV links website has been arrested after FACT (Federation Against Copyright Theft) encouraged the Gloucestershire police to get involved.

"Sites such as TV Links contribute to and profit from copyright infringement by identifying, posting, organising, and indexing links to infringing content found on the internet that users can then view on demand by visiting these illegal sites," said a spokesman for Fact.

Jack Scofield wonders why they didn't go after the folks actually hosting the copyright infringing material.

"Is the message that it's less criminal to host illegal content on YouTube than it is to to link to it from a site such as TV Links? Or is it just that FACT (Federation Against Copyright Theft) and the police won't tackle anybody with enough high-powered lawyers to fight back? Is The New Freedom blog correct in saying: "They just have so much money that they have become above the law."

Of course, there is a difference between building a site around links to content that could be presumed to lack copyright clearance and linking unintentionally from a site set up for a different purpose. However, I'm not a lawyer so I don't know how significant this is. (Is shoplifting OK if you have a proper job but criminal if you're unemployed and starving?)...

Indeed, if linking is illegal, we might as well shut down the Internet, because there is no practical way anybody can guarantee the legality of what's on the end of any link. Even if you could guarantee it at the time of linking, there's no guarantee it would still be legal less than a second later, or for the rest of time."

Of course, like the Communications Decency act in the US, the ECommerce directive in the EU protects services that host illegal content when they don't have "actual knowledge" of the presence of that specific material on their servers. So the onus is on the content industry to let them know and then they are obliged to take the files down or face m'learned friends for the complainant.

More electronic surveillance of children

The good folks at ARCH have pointed me to another crazy child surveillance story.

"From the Times this morning:

Children are being tracked by micro-chips embedded in their uniforms in a trial at a secondary school.

The devices are used to monitor pupils’ movements and register their arrival in class on the teacher’s computer. Supply teachers can also be alerted if a student is likely to misbehave.

The chip connects with teachers’ computers to show a photograph of the pupil, data about academic performance and whether he or she is in the correct classroom."

It's also worth pointing out on this score that ARCH have created an eCAF (electronic Common Assessment Framework) Alert page to as a central point of contact for practitioners to share their experiences and/or concerns about eCAF as it gets rolled out" across children's services and agencies.

" It has become clear that there is no independent, confidential route for practitioners’ views and observations to be collected and analysed.

This site aims to provide such a mechanism for anyone working in the children's sector who has any comment to make about eCAF implementation and use.

If you would like to send us your views on eCAF, you can

leave us a message by clicking here

email us at contact@ecafalert.org.uk

phone us on 020 8558 9317"

Even If You Have Nothing To Hide...

John Dean at Findlaw:

""I've got nothing to hide, so electronic surveillance doesn't bother me. To the contrary, I'm delighted that the Bush Administration is monitoring calls and electronic traffic on a massive scale, because catching terrorists is far more important that worrying about the government's listening to my phone calls, or reading my emails." So the argument goes. It is a powerful one that has seduced too many people.

Millions of Americans buy this logic, and in accepting it, believe they are doing the right thing for themselves, their family, and their friends, neighbors, community and country. They are sadly wrong. If you accept this argument, you have been badly fooled...

For several years I have been reading the work of George Washington University Law School Professor Daniel J. Solove, who writes extensively about privacy in the context of contemporary digital technology. The current apathy about government surveillance brought to mind his essay "'I've Got Nothing To Hide' And Other Misunderstandings of Privacy."

Professor Solove's deconstruction of the "I've got nothing to hide" position, and related justifications for government surveillance, is the best brief analysis of this issue I have found. These arguments are not easy to zap because, once they are on the table, they can set the terms of the argument. As Solove explains, "the problem with the nothing to hide argument is with its underlying assumption that privacy is about hiding bad things." He warns...

The concept of "privacy" encompasses many ideas relating to the proper and improper use and abuse of information about people within society. Privacy protects information not only because it would cause others to think less of the person at issue, but also simply to give us all breathing room: "Society involves a great deal of friction," Solove writes, "and we are constantly clashing with each other. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be suffocation, and it might not be a place in which most would want to live.""

Content cos agree Copyright Principles for User Generated Content

A collection of large content companies including Disney, Microsoft and Fox have agreed and issued a set of Copyright Principles for User Generated Content Services.

Sue the libraries!

From Andrew Brown at the Guardian: Sue the libraries - they're letting people get content on the cheap

Daily Show for free on the Web

From SiliconValley:

"Media giant Viacom is suing YouTube, but it's also taking lessons from the online video service.

In the ongoing quest to make Internet popularity pay, Viacom's Comedy Central channel will today unveil a Web site for "The Daily Show with Jon Stewart" that's designed to satisfy the most avid fans of the mock-news show with oceans of free video clips.

Rather than providing just a sampling of the program's fare, as Viacom and other TV networks have done for years, Comedy Central is offering the works: about 13,000 video clips representing every minute of the show since its 1999 inception.

The database is searchable by both date and topic, making it a potential bonanza for students of American pop culture...

Although YouTube is a foe in the legal battle, it was a catalyst for the launch of the new Viacom site. Paul Beddoe-Stephens, vice president for digital media at Comedy Central, said he had been dreaming about such a project since "The Daily Show" started.

But without YouTube, he said, Viacom might not have recognized the true value of the archives and dragged its feet in digitally archiving and "tagging" the clips with topic and date references.

That job fell to a team of 16 Comedy Central writers and video encoders who have worked two shifts a day on the project since June to make today's deadline. Beddoe-Stephens said it was important to do the work in-house so that the tags be consistent and the brief descriptors accompanying the clips be written in a style reflecting the show's irreverent attitude."

Good move Viacom.

98% of piracy statistics are wrong (or did I make that up)

Michael Geist points out that most statistics about the cost of "piracy" are unreliable and proves his point by dissecting the The RCMP 2005 Economic Crime Report.

Lawyerly quotes of the day

Two of my favorite recent quotes from lawyers are contained in this short collection by Roger Alford at Opinio Juris. The first was by Marty Lederman:

The strongest response that can be made to those who challenge violations of the laws of war by the Bush Administration is that these same voices were silent when the laws of war were being violated by NATO during the Kosovo war. You could call this argument “A pox on both your houses.”

and the second from Harold Koh:

I recently was talking with a Senator who said to me, “Professor, we didn’t ask the terrorists to sign the Geneva Conventions. How can you expect us to abide by commitments that they don’t adhere to?” To which I replied, “Yes, and we didn’t ask the whales to sign the Whaling Convention either. We sign these treaties to protect us from ourselves, not from them.”

History of geography of religion in 90 seconds

How the five major religions spread geographically. No commentary just a terrific use of technology to communicate. Educators note please.

Survey says maths and science skills over-rated

Christopher Sessums has been examining the survey claiming that people don't see the need for maths and science skills. I was initially tempted to launch into my usual rant about the power of mathematics and the scientific method to facilitate individual development of analytical skills but I'll refer you instead to the more measured Sessums response via a different tack:

"The report, commissioned as part of a $25 million, 10-year initiative by the Ewing Marion Kauffman Foundation to improve math, science, and technology (MST) education throughout the Kansas City area, suggests that the "2,600" parents and students surveyed clearly understand the importance of math, science, and technology skills -- they simply do not see it as important for themselves.

The report was compiled by Public Agenda, a nonpartisan opinion research organization... Interestingly enough, I found it a bit odd that Public Agenda offers a video on it's site that argues for the critical importance of math, science, and technology education in Kansas and Missouri...

This led me to wonder why a self-proclaimed, nonpartisan research organization would provide a video outlining the importance of math, science, and technology education on a site offering a "non-biased report" about parents and students being unenthusiastic about math, science and technology skills?

In then struck me that Public Agenda clearly has an agenda on controversial topics... I am not writing today to take issue with Public Agenda's agenda, but I am concerned about the credulity of their research given their claim of unbiasedness...

In the end, the Important, But Not for Me report shows us that parents have different opinions and understandings about schooling. Surprised? Public education is a complex enterprise where some individuals come out ahead, others behind. Will this ever change? Can it be changed? At some micro and meso levels, yes. But again, it depends on the collective effort of individuals in their community. Regulating education sounds good on paper, but the everyday realities of life make that a much more political and thus difficult enterprise."

Actually I do think public education can be transformed within the space of a generation - it would take 20 years, not the massively intrusive and constant political tinkering and sophistry about apparent improvements that schooling currently gets subjected to. But it would involve massive structural changes, personalising education partly Education Otherwise fashion (not necessarily abolishing schools though they would be far more anarchic places than the kind we have today e.g. with the gifted teachers having total freedom to explore their own and children's interests), to really facilitate the ability of each and every child to develop their full potential. I have absolutely no confidence that it will happen, though, so public education will continue to fail the vast majority of kids that get processed through the sausage-machine-like system. It remains in the hands of the children, their families and communities to ensure, as Samuel Langhorne Clemens said, that they do not allow their schooling to interfere with their education.

Yahoo! Executive accused of lying to Congress

Yahoo! has been accused of lying to Congress over the case of the Chinese man who got jailed for ten years after being identified by the company. John Palfrey at the Berkman Center, who has been inclined to give the company the benefit of the doubt since they started working on getting industry guidelines in the area, considers the accusations worrying.

"Rep. Tom Lantos has called on Yahoo! executives to return to Congress to talk about what they knew and when in the Shi Tao case. Rep. Lantos alleges that Yahoo!’s general counsel misled a hearing (at which I and others submitted testimony, too) in 2006 by indicating that the company knew less than it actually did about why the Chinese state police were asking for information about Shi, a dissident and journalist. Yahoo! did turn over the information; the Chinese prosecuted Shi; he remains in jail; and the issue continues to point to the single hardest thing about our US tech companies doing business in places that practice online censorship and surveillance...

The hard problem at the core of this issue is that police come to technology companies every day to ask for information about their users. It is a fair point for technology companies to make that they often cannot know much about the reason for the policeman’s inquiry. It could be completely legitimate: an effort to prevent a crime from happening or bringing a criminal to justice. In the United States, these requests come in the context of the rule of law, including a formal reliance on due process. And every once in a while, a technology company pushes back on requests for data of this sort, publicly or privately. The process is imperfect, if you consider it from a privacy standpoint, but it works — a balance is found between the civil liberties of the individual and the legitimate needs of law enforcement to keep us safe and to uphold the rules to which we all agree as citizens.

This hard problem is much harder in the context of, say, China. It’s not the only example, but it’s the example here with Shi Tao. In Yahoo!’s testimony in 2006, Michael Callahan, the executive vice president and general counsel, said that Yahoo! did not know the reasons for the Chinese state police’s request for information about Shi.

You can read the testimony for yourself here. The relevant statement by Mr. Callahan is:

“The Shi Tao case raises profound and troubling questions about basic human rights. Nevertheless, it is important to lay out the facts. When Yahoo! China in Beijing was required to provide information about the user, who we later learned was Shi Tao, we had no information about the nature of the investigation. Indeed, we were unaware of the particular facts surrounding the case until the news story emerged.” (Emphasis mine.)

The key phrase: “No information about the nature of the investigation.” Not that the information was inconclusive, or vague, or hard to translate, or possibly of concern. “No information.”

Now, we are told, there’s a big disagreement about whether that testimony was accurate...

The big problem here for me is if we’ve in fact been misled, all of us, to believe that it was one problem when it really was quite another. If “no information” proves to be inaccurate, I’m not sure how much longer I can keep extending that benefit of the doubt in this case."

Rebecca MacKinnon has been saying since July that Yahoo! knew more than they claimed.

Sequential Innovation, Patents, And Imitation

From James Besson and Eric Maskin: Sequential Innovation, Patents, And Imitation

"How could such industries as software, semiconductors, and computers have been so innovative despite historically weak patent protection? We argue that if innovation is both sequential and complementary--as it certainly has been in those industries--competition can increase firms' future profits thus offsetting short-term dissipation of rents. A simple model also shows that in such a dynamic industry, patent protection may reduce overall innovation and social welfare. The natural experiment that occurred when patent protection was extended to software in the 1980?s provides a test of this model. Standard arguments would predict that R&D intensity and productivity should have increased among patenting firms. Consistent with our model, however, these increases did not occur. Other evidence supporting our model includes a distinctive pattern of cross-licensing in these industries and a positive relationship between rates of innovation and firm entry."

Review of Amazon 1-click patent results in it being rejected

Peter Calveley reports that the USPTO has decided to throw out Amazon's 1-click patent. He's pleased since he was the one who formally challenged it.

Grokster rides again?

On Wednesday 17 October the latest court decision on the saga that was MGM v Grokster was handed down by Judge Stephen Wilson. The LA Times has a nice succinct report.

" The twisting path of MGM vs. Grokster (the entertainment industry's lawsuit against the companies behind the Grokster, Kazaa and Morpheus file-sharing programs) took another fascinating turn today. As only fanatical followers of this case may know, two of the three sets of defendants -- the companies connected to Grokster and Kazaa -- settled with the movie studios, record companies and music publishers not long after the Supreme Court ruled that p2p software companies could be held liable for inducing infringement. But StreamCast Networks, which distributes Morpheus, couldn't strike a deal with the labels and studios, so it fell to U.S. District Judge Stephen V. Wilson to apply the justices' opinion to that portion of the case. He did so a year ago, finding that StreamCast was, in fact, liable. But he did not immediately grant the plaintiffs' request for a permanent injunction, wondering aloud at a hearing how to craft an injunction that did not block non-infringing uses of Morpheus. Today, Wilson finally granted the injunction (Download the pdf here), but with caveats that will keep StreamCast in the game at least temporarily."

He's asked Streamcast to add filters to the Morpheus p2p software at the heart of the dispute but stopped short of demanding they do everything within (and out-with) their power - as in the ICraveTV case - to stop piracy. He also said the onus was on the music industry to identity the files they wanted blocked and to provide proof that they own the copyright on that music. The judge has agreed to oversee Streamcast's compliance with the order, so we can expect to see a few more trips to his courtroom by music industry lawyers complaining that StreamCast are not fulfilling their obligations with p2p co responding in kind. In crafting a carefully thought out compromise he's given himself a guarantee of an ongoing series of ear aches from both sides.

He also encourages Morpheus users to upgrade to the filtered version of the software.

Judge Wilson had ruled in favour of Grokster when the case originally appeared before him, citing the 1984 US Supreme Court's MGM v Sony precedent indicating that technology - in that case the Sony VCR - should not be banned if it had substantial non-infringing uses. The case was appealed right up to the Supreme Court and they basically side-stepped MGM v Sony when delivering the Grokster decision in June 2005 by introducing an "inducing infringement" test. Substantial non-infringing uses is no longer a get-out clause for technologies that can be used for illicit copying, especially if the behaviour of the creator or distributor of the technologies can be interpreted as encouraging or promoting the use of the technologies in such a way. So though Grokster and KaZaa have long since settled ( in the wake of the Supreme Court decision) the legal ripples from the case will continue for some time.

AG designate condemns torture memos

From AP via Findlaw:

"Attorney General-designate Michael Mukasey said Wednesday the president does not have the authority to use torture techniques against terrorism suspects. This stance was not taken by predecessor Alberto Gonzales and is considered key to the nominee's confirmation as the top U.S. law enforcement official.

Mukasey repudiated a 2002 Justice Department memo that said the president has the power to issue orders that violate the Geneva Conventions as well as international and U.S. laws prohibiting torture."

He also said there's no room for political interference with the running of the Justice Department. That's promising.

Update: Marty Lederman says:

"Just now, in response to repeated questions, he insisted that he did not know enough to say whether waterboarding, or any other technique, is torture, cruel treatment under Common Article 3, or otherwise unlawful. It's really remarkable how far we have fallen when a jurist of Judge Mukasey's caliber cannot answer such questions without hesitation."

That's not so promising. The more he talks about torture the less and less promising it looks. Brian Tamanaha says

"I had lunch today with a prominent German Constitutional scholar who was flabbergasted about something that I could not adequately explain.

He asked me how the candidate to become the top legal official of the U.S. government could say that he does not know whether water-boarding constitutes "torture" (as Judge Mukasey stated yesterday in his confirmation hearings). My colleague insisted that in Germany any person who uttered such a statement would be finished. He found it shocking that a person could say this in America and still become our Attorney General.

At first I was surprised at his genuine disbelief; and then I felt a bit ashamed that I did not also react with disbelief. I have become so cynical about the Bush Administration on the torture issue that this strikes me as ordinary stuff.

Seeing the astonishment through the eyes of an outsider made me realize how far we have deteriorated in our moral sense about the impropriety of torture. For Mukasey to say that he first must study whether water boarding is "torture" is a disgrace."

Yahoo! Convenience wins so no more drm

Yahoo!'s Ian Rogers gave a wonderful presentation at a digital media conference a couple of weeks ago in the midst of which he declared that Yahoo! would no longer deal with the music labels if they required DRM.

"Back in 1999 I ran Winamp.com for Rob and Justin. Napster came on the scene and we thought, “Wow! There’s a market for MP3s!” We had millions of people using Winamp, visiting Winamp.com for skins and plugins — it was by far the largest community of MP3-lovers. We naively and enthusiastically suggested to labels that we’d be a great place to sell MP3s. The response from the labels at the time was universally, “What’s MP3?” or “Um, no.”

Instead they commenced suing Napster. We were naive to be sure, but we were genuinely surprised by the approach. Suing Napster without offering an alternative just seemed like a denial of fact. Napster didn’t invent the ability to do P2P, it was inherent in TCP/IP. It was like throwing Newton in jail for popularizing the concept of gravity...

But now, eight years later, Amazon’s finally done what was clearly the right solution in 1999. Music in the format that people actually want it in, with a Web-based experience that’s simple and works with any device... It only took 8 years.

8 years. How much opportunity have we lost in those 8 years? How much naivety and hubris did we have when we said, “if we build it they will come”? What did we spend? And what did we gain? We certainly didn’t gain mass user adoption or trust, two prerequisites to success on the Internet.

Inconvenient experiences don’t have Web-scale potential, and platforms which monetize the gigantic scale of the Web is the only way to compete with the control you’ve lost, the only way to reclaim value in the music industry...

Yahoo! Music demonstrates this scale discrepancy perfectly... Oh have we got a deal for you! If you’re on Windows XP or Vista, and you’re in North America, just download this 20MB application, go through these seven install screens, reboot your computer, go through these five setup screens, these six credit card screens, give us $160 dollars and POW! Now you can hear that song you wanted to hear…if you’re still with us. Yahoo! didn’t want to go through all these steps. The licensing dictated it. It’s a slippery slope from “a little control” to consumer unfriendliness and non-Web-scale products and services...

But this isn’t news, nor is it particular to the digital age. History tells us: convenience wins, hubris loses. “Who is going to want a shitty quality LP when these 78s sound so good? Who wants a hissy cassette when they have an awesome quadrophonic system? Who wants digitized music on discs now that we have Dolby on our cassettes? Who wants to listen to compressed audio on their computers?” ANSWER: EVERYONE. Convenience wins, hubris loses. [check Fredric Dannen’s comments here]

I’m here to tell you today that I for one am no longer going to fall into this trap. If the licensing labels offer their content to Yahoo! put more barriers in front of the users, I’m not interested. Do what you feel you need to do for your business, I’ll be polite, say thank you, and decline to sign. I won’t let Yahoo! invest any more money in consumer inconvenience. I will tell Yahoo! to give the money they were going to give me to build awesome media applications to Yahoo! Mail or Answers or some other deserving endeavor. I personally don’t have any more time to give and can’t bear to see any more money spent on pathetic attempts for control instead of building consumer value. Life’s too short. I want to delight consumers, not bum them out...

Lets envision the end state and drive there as quickly as possible. Lets not waste another eight years on what is obvious today. Lets build the tools of a healthy media Web and reward music-lovers for being a part of it.

In the end you get what you pay for. I won’t spend another dime paying engineers to build false control, making listening to music harder for music-lovers. I will put all of my energy into making it easier and making the experience better. I suggest you do the same."

Hopefully Yahoo Entertainment will follow words with actions but I can't see DRM going away any time soon. Thanks to Ian again for the pointer.

Competition regulators ignore Google privacy concerns

Ian is concerned that the EU Competition Commissioner has refused to look into the privacy implications of the Google takeover of DoubleClick.

This is both unfortunate and another sign that competition authorities are taking some time to adjust to the new world of winner-takes-all infogopolies. As we have seen with the Microsoft competition enquiries, more traditional competition regulation has not proven up to the task of remedying the monopolistic behaviour of companies taking advantage of network effects to crush their rivals. Regulators need to move faster, be more willing to impose structural remedies, and to act in the spirit of competition law — preventing abuse of dominant positions, whether the impact is on competitors or consumers. As Senator Herb Kohl told a recent US Senate Judiciary Committee hearing:

"Some commentators believe that antitrust policymakers should not be concerned with these fundamental issues of privacy, and merely be content to limit their review to traditional questions of effects on advertising rates. We disagree. The antitrust laws were written more than a century ago out of a concern with the effects of undue concentrations of economic power for our society as a whole, and not just merely their effects on consumers' pocketbooks. No one concerned with antitrust policy should stand idly by if industry consolidation jeopardizes the vital privacy interests of our citizens so essential to our democracy."

Well said both.

Free speech trumps IP in fantasy baseball

The IP wars have seen an ongoing series of court battles between major sports franchises such as the baseball folks in the US and others using e.g. the statistics from the games for other purposes, such as fantasy leagues. Major League Baseball Advanced Media has lost the latest skirmish in an appeal court decision favouring CBC Distribution.

"C.B.C. Distribution and Marketing, Inc., brought this action for a declaratory
judgment against Major League Baseball Advanced Media, L.P., to establish its right
to use, without license, the names of and information about major league baseball
players in connection with its fantasy baseball products. Advanced Media counterclaimed, maintaining that CBC's fantasy baseball products violated rights of publicity belonging to major league baseball players and that the players, through their association, had licensed those rights to Advanced Media, the interactive media and Internet company of major league baseball...

The Supreme Court has directed that state law rights of publicity must be
balanced against first amendment considerations, see Zacchini v. Scripps-Howard
Broad., 433 U.S. 562 (1977), and here we conclude that the former must give way to
the latter. First, the information used in CBC's fantasy baseball games is all readily
available in the public domain, and it would be strange law that a person would not
have a first amendment right to use information that is available to everyone. It is true
that CBC's use of the information is meant to provide entertainment, but "[s]peech that
entertains, like speech that informs, is protected by the First Amendment because
'[t]he line between the informing and the entertaining is too elusive for the protection
of that basic right.' " Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95
F.3d 959, 969 (10th Cir. 1996) (quoting Winters v. New York, 333 U.S. 507, 510
(1948)); see also Zacchini, 433 U.S. at 578...

Courts have also recognized the public value of information about the game of
baseball and its players, referring to baseball as "the national pastime." Cardtoons,
95 F.3d at 972. A California court, in a case where Major League Baseball was itself
defending its use of players' names, likenesses, and information against the players'
asserted rights of publicity, observed, "Major league baseball is followed by millions
of people across this country on a daily basis ... The public has an enduring fascination
in the records set by former players and in memorable moments from previous games
... The records and statistics remain of interest to the public because they provide
context that allows fans to better appreciate (or deprecate) today's performances."
Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 411 (2001). The Court
in Gionfriddo concluded that the "recitation and discussion of factual data concerning
the athletic performance of [players on Major League Baseball's website] command
a substantial public interest, and, therefore, is a form of expression due substantial
constitutional protection." Id. We find these views persuasive."

So free use of sports statistics in the public domain effectively trump the publicity rights of the sporting franchise and the players.