Thursday, July 03, 2003
New Scientist is reporting that stem cells have enabled paralysed rats to walk. This brings to mind parallel issues and a speech by the UN Special Envoy for HIV/AIDS in Africa, Stephen Lewis, speaking in Edinburg earlier this year. He said "The world's response to the HIV/AIDs pandemic has been murder by indifference... HIV/AIDS is a modern apocalypse. It is a catastrophe that exceeds everthing else in human history in the field of communicable diseases, and it is impossible to understand the depth of the excruciating human toll without keeping in mind that we have never dealt with this kind of human phenomenon before." He went on to make the point that hundreds of billions of dollars have been magically found for the fight against terrorism, yet the West could put a major dent in the fight against AIDS with just $10 billion per year. Koffi Annan has set up the Global Fund to this end but has so far only got pledges to the cummulative effect of about $2billion and only a fraction of those pledges actually donated. Lewis said "We could stop this pandemic in its tracks in a few short years. We know what to do - we simply must find the will to do it."
In the thick of all this internet law and technological developments there is the background not just of the effects of the changes, which most of accept all too passively, but also of the use to which we actively put these developments. I haven't touched on the ethical issues in stem cell research but if we are going to engage in these kinds of developments we surely should be looking at them in the kind of global equitable context that Lewis is so passionate about?
In the thick of all this internet law and technological developments there is the background not just of the effects of the changes, which most of accept all too passively, but also of the use to which we actively put these developments. I haven't touched on the ethical issues in stem cell research but if we are going to engage in these kinds of developments we surely should be looking at them in the kind of global equitable context that Lewis is so passionate about?
I'm irritated because I just wrote a longish piece about GILC's latest newsletter and lost it in the bowels of Blogger when I tried to post. I'll just point to the newsletter at this point and not repeat my comments.
Jonathan Wallace, in this month's Ethical Spectacle, denounces the Supreme Court's decision upholding CIPA, as a fraud. Jonathan is very well informed about filter software, having run the Censorware Project with Seth Finkelstein, for some years. He makes the point that the fundamental problem with filtering the web is its size and the automated spiders which do most of the assessment are not clever enough to make the required assessments. Also that the few humans involved in assessing sites for software filters are often untrained and subject to unreasonable time contraints and daily quotas, which don't allow them to do the job properly. He goes on:
"Another issue of stunning importance raised by censorware is whether libraries can appropriately delegate their
decision-making processes to twenty year old art students with no training clicking through hundreds of sites a day. Even if
librarians could create their own censorware by reviewing web sites and deciding which to "acquire" for the library, there seems
something inherently suspect in allowing strangers to do it--especially when the strangers refuse to disclose to the libraries the
contents of their blacklists or even the methodologies used to compile them...
Significant portions of my site, such as An Auschwitz Alphabet, and even the pornography essays cited above, are routinely
used as sources by high school and college students writing papers. If you block me on a library computer, you are segregating
me from a significant section of my audience whom I believe would benefit from being able to read my views. If that segregation
has occurred because some artificial stupidity software misapprehended the nature of my site, or a homemaker working
part-time for a censorware company didn't take enough time to understand what my site is about, don't I have reason to
complain? "
That's a fair question IMHO. He reserves his most stinging criticism for Chief Justice Rehnquist, who said in the majority opinion "Assuming that such erroneous blocking presents Constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled." I questioned this in the context of the embarrassment factor in an earlier post but Jonathan has another more important point given the current state of the art with software filters:
"The Chief Justice says that the wholesale mischaracterization of innocuous or socially useful sites as porn by a
program that then prevents you from seeing them in a forum in which a large number of Americans secures Internet access,
may not present any kind of free speech problem. That's not food for thought; its poison for thought.
The rest of the sentence is a howler. As the trial court discovered, censorware is not easily turned off in a library. Most
products forward you through a single proxy server. The library does not have the ability to get you out to the Internet through
any other port, and there is no way to switch off the proxy. The best the library can do is contact the censorware company and
request that the particular site the library patron wishes to view be removed from the blacklist. Sometimes the censorware
companies don't respond to such requests; when they do, it can take weeks, rendering the unblocking futile, as the patron has
probably forgotten, lost interest, or turned in her research paper by now. Finally, there have been instances of censorware
companies manually unblocking a site several times, only to have it re-added to the blacklist by the spider...
Since censorware itself is a fiction--a startling case of doing something inaccurate, poorly planned, buggy, in order to create the
fiction of doing something-- it is not surprising that the Chief Justice tacked on an additional fiction, that the censorware can be
turned off when a user requests. If we can pretend that censorware works, we might as well also pretend that it can be shut off." Food (or 'poison' as Jonathan might content) for thought.
"Another issue of stunning importance raised by censorware is whether libraries can appropriately delegate their
decision-making processes to twenty year old art students with no training clicking through hundreds of sites a day. Even if
librarians could create their own censorware by reviewing web sites and deciding which to "acquire" for the library, there seems
something inherently suspect in allowing strangers to do it--especially when the strangers refuse to disclose to the libraries the
contents of their blacklists or even the methodologies used to compile them...
Significant portions of my site, such as An Auschwitz Alphabet, and even the pornography essays cited above, are routinely
used as sources by high school and college students writing papers. If you block me on a library computer, you are segregating
me from a significant section of my audience whom I believe would benefit from being able to read my views. If that segregation
has occurred because some artificial stupidity software misapprehended the nature of my site, or a homemaker working
part-time for a censorware company didn't take enough time to understand what my site is about, don't I have reason to
complain? "
That's a fair question IMHO. He reserves his most stinging criticism for Chief Justice Rehnquist, who said in the majority opinion "Assuming that such erroneous blocking presents Constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled." I questioned this in the context of the embarrassment factor in an earlier post but Jonathan has another more important point given the current state of the art with software filters:
"The Chief Justice says that the wholesale mischaracterization of innocuous or socially useful sites as porn by a
program that then prevents you from seeing them in a forum in which a large number of Americans secures Internet access,
may not present any kind of free speech problem. That's not food for thought; its poison for thought.
The rest of the sentence is a howler. As the trial court discovered, censorware is not easily turned off in a library. Most
products forward you through a single proxy server. The library does not have the ability to get you out to the Internet through
any other port, and there is no way to switch off the proxy. The best the library can do is contact the censorware company and
request that the particular site the library patron wishes to view be removed from the blacklist. Sometimes the censorware
companies don't respond to such requests; when they do, it can take weeks, rendering the unblocking futile, as the patron has
probably forgotten, lost interest, or turned in her research paper by now. Finally, there have been instances of censorware
companies manually unblocking a site several times, only to have it re-added to the blacklist by the spider...
Since censorware itself is a fiction--a startling case of doing something inaccurate, poorly planned, buggy, in order to create the
fiction of doing something-- it is not surprising that the Chief Justice tacked on an additional fiction, that the censorware can be
turned off when a user requests. If we can pretend that censorware works, we might as well also pretend that it can be shut off." Food (or 'poison' as Jonathan might content) for thought.
Ex French prime minister and now MEP, Michel Rocard, is, according to Libération, leading the opposition to software patents. This is despite being in the same political group in the parliament as Arlene McCarthy, who is leading the drive for software patents. Rocard says "A civilization should be preserved where the place of the world outside the market and of the human intellect is respected... any software which describes or facilitates the circulation of the products of the mind [les produits de l'esprit] (nb text processing, for example) should not be patentable." Extract from the article:
"One does not find a computer on the Parisian desk of Michel Rocard. He
admits it freely: he is not "one of the generation which has an easy
facility with the computer". However, as president of the Committee for
Culture in the European Parliament, he has had to plunge himself, with
an "evil madness", into software patentability, "words which even a year
ago were unknown to me". Today, if he speaks about it in such an
animated way, it is because hiding behind the technical aspects there is
a real issue about civilization. For the ex prime minister, the
introduction of patents on software in Europe would be "very serious".
It would call into question the freedom of movement of human knowledge. "
As someone who is not "one of the generation which has an easy facility with the computer" he's showing a grasp of the issues here.
"One does not find a computer on the Parisian desk of Michel Rocard. He
admits it freely: he is not "one of the generation which has an easy
facility with the computer". However, as president of the Committee for
Culture in the European Parliament, he has had to plunge himself, with
an "evil madness", into software patentability, "words which even a year
ago were unknown to me". Today, if he speaks about it in such an
animated way, it is because hiding behind the technical aspects there is
a real issue about civilization. For the ex prime minister, the
introduction of patents on software in Europe would be "very serious".
It would call into question the freedom of movement of human knowledge. "
As someone who is not "one of the generation which has an easy facility with the computer" he's showing a grasp of the issues here.
Tuesday, July 01, 2003
Check out Derek Slater on Judge Richard Posner's decision in the Madster and Aimster case. Yesterday, the judge ruled against the file sharing services as expected.
In another long running Internet law dispute, the California supreme court ruled yesterday in favour of a former Intel employee, Kourosh Kenneth Hamidi. The company had complained that Hamidi had interfered with employee productivity by sending mass emails on six separate occasions over two years to up to 35000 Intel employees, criticising the company's employment practices. He did not breach any security systems and offered to and did remove anyone from his list who did not wish to recieve his emails any further. There was no argument that the conduct had deprived Intel of the use of their computer system. Intel alleged that Hamidi committed the tort of tresspass to chattels and the court at first instance and the court of appeal had ruled in their favour. The California Supreme court, however, on a split 5-4 decision said that "Such an electronic communication does not constitute an actionable trespass to personal property, i.e. the computer system, because it does not interfere with the possessor's use of or possession of, or other legally protected interest in, the personal property itself." They also said "Our conclusion does not rest on any special immunity for communications by electronic mail; we do not hold that messages transmitted through the Internet are exempt from the ordinary rules of tort liablity." And thye distinguished the case from others where spammers had been held liable but where the volume mail had been so high as to interfere with the operation of the system which constituted the personal property. "...under California law, the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning." I recall the case originally raising cyber-libertarians because it was claimed that Mr Hamidi's right to free speech was being impaired. It's an interesting decision.
In another long running Internet law dispute, the California supreme court ruled yesterday in favour of a former Intel employee, Kourosh Kenneth Hamidi. The company had complained that Hamidi had interfered with employee productivity by sending mass emails on six separate occasions over two years to up to 35000 Intel employees, criticising the company's employment practices. He did not breach any security systems and offered to and did remove anyone from his list who did not wish to recieve his emails any further. There was no argument that the conduct had deprived Intel of the use of their computer system. Intel alleged that Hamidi committed the tort of tresspass to chattels and the court at first instance and the court of appeal had ruled in their favour. The California Supreme court, however, on a split 5-4 decision said that "Such an electronic communication does not constitute an actionable trespass to personal property, i.e. the computer system, because it does not interfere with the possessor's use of or possession of, or other legally protected interest in, the personal property itself." They also said "Our conclusion does not rest on any special immunity for communications by electronic mail; we do not hold that messages transmitted through the Internet are exempt from the ordinary rules of tort liablity." And thye distinguished the case from others where spammers had been held liable but where the volume mail had been so high as to interfere with the operation of the system which constituted the personal property. "...under California law, the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning." I recall the case originally raising cyber-libertarians because it was claimed that Mr Hamidi's right to free speech was being impaired. It's an interesting decision.
Donna Wenthworth is blogging ILAW at Stanford and Larry Lessig has just done his synopsis of his first book, Code and Other Laws of Cyberspace -
1. Cyberspace can be regulated, contrary to libertarian opinion.
2. Four things constrain behaviour - law, norms, market forces and architecture
3. These four regulators interact with each other, so e.g. law can influence norms
4. Architecture, once set, regulates without further human input
5. Original Net architecture facilitated anonymity. Elements grafted on to the architecture undermined that facility e.g. cookies "Puts a tag on your computer. A clever, tiny change with dramatic consequences." Another example is IP mapping which makes users "relatively identifiable"
6. So small changes can hugely change the effect of the architecture.
He also refers to the HP - MIT fight over spam blacklisting which I had fogotten -
Battle between HP and MIT. HP subscribed to ORBS. MIT mail was blocked; MIT didn’t implement policies ORBS thought appropriate. MIT got mad. They started blocking all mail from HP. Arms race. This was only stopped because ORBS went down.
Summarising, he says:
"Code is law" is not my idea; it’s Mitch Kapor’s. He
said: "Architecture is politics." Second point: code is
plastic. Third point: sometimes no law can beget bad
code. Fourth point, more tentative: good law can be used
to avoid bad code (maybe)?
1. Cyberspace can be regulated, contrary to libertarian opinion.
2. Four things constrain behaviour - law, norms, market forces and architecture
3. These four regulators interact with each other, so e.g. law can influence norms
4. Architecture, once set, regulates without further human input
5. Original Net architecture facilitated anonymity. Elements grafted on to the architecture undermined that facility e.g. cookies "Puts a tag on your computer. A clever, tiny change with dramatic consequences." Another example is IP mapping which makes users "relatively identifiable"
6. So small changes can hugely change the effect of the architecture.
He also refers to the HP - MIT fight over spam blacklisting which I had fogotten -
Battle between HP and MIT. HP subscribed to ORBS. MIT mail was blocked; MIT didn’t implement policies ORBS thought appropriate. MIT got mad. They started blocking all mail from HP. Arms race. This was only stopped because ORBS went down.
Summarising, he says:
"Code is law" is not my idea; it’s Mitch Kapor’s. He
said: "Architecture is politics." Second point: code is
plastic. Third point: sometimes no law can beget bad
code. Fourth point, more tentative: good law can be used
to avoid bad code (maybe)?
Some insight on the Microsoft XBox mod chip story in Australia. Nathan Cochrane is not too impressed with the Microsoft PR person. He believes "Microsoft was denied the right of an adequate reply" to the story because the PR person he and the ZDNet reporter, Patrick Gray, contacted did not do her job properly.
Today Nathan is reporting on a proposed new service P2P for expatriate TV watchers. A "French company is ready to launch a device that lets television viewers watch any channel on earth, and may open another front in the battle over digital copyright."
And Declan McCullagh elsewhere is complaining about Microsoft's lobbying efforts to induce regulation to keep the Net neutral. Declan is a pure libertarian who is suspicious of government regulation and believes market forces will right all wrongs for consumers. I admire his convictions but given that market forces are ultimately underpinned by contract law - ie. government regulation - I have never been totally convinced. The world is a bit more complex than pure libertarianism would have us believe. Nevertheless Declan is irritated that Microsoft, of all companies, should be changing tack on their coincident beliefs - Microsoft also, until recently, viewed with suspicion government interference in the marketplace. His second complaint about Microsoft in the article is they are taking a position in their lobbying that they have so far refused to espouse or defend in public.
Today Nathan is reporting on a proposed new service P2P for expatriate TV watchers. A "French company is ready to launch a device that lets television viewers watch any channel on earth, and may open another front in the battle over digital copyright."
And Declan McCullagh elsewhere is complaining about Microsoft's lobbying efforts to induce regulation to keep the Net neutral. Declan is a pure libertarian who is suspicious of government regulation and believes market forces will right all wrongs for consumers. I admire his convictions but given that market forces are ultimately underpinned by contract law - ie. government regulation - I have never been totally convinced. The world is a bit more complex than pure libertarianism would have us believe. Nevertheless Declan is irritated that Microsoft, of all companies, should be changing tack on their coincident beliefs - Microsoft also, until recently, viewed with suspicion government interference in the marketplace. His second complaint about Microsoft in the article is they are taking a position in their lobbying that they have so far refused to espouse or defend in public.
Monday, June 30, 2003
In the DEMOS report, Mobilisation, James Harkin concludes that the killer app of the next generation mobile phones will be "location awareness" i.e. the ability to pinpoint the user's location accurately at any time. Will people really come to love being tracked precisely and minutely? The DEMOS report is available at their website.
Kieran McCarthy has some advice for opponents of software patents in Europe, on persuading politicians of the merits of their case - appeal to their egos. HE suggests there are three things to avoid
1. Ideological arguments - because politicians move with the prevailing winds
2. Little people defence - politicians don't like picking fights with the powerful, as it can damage their careers
3. Criticism - politicians don't like to be told they are stupid and just don't get it. (No more than anyone else!) Better to ride the ego, wine and dine, tell them how clever they are and then explain your perspective in easy to manage chunks or soundbites. They understand, for example, the argument that 'patents encourage innovation and investment and that harmonising laws make things simpler everywhere'. They don't get the argument that 'patents (ans software patents in particular) can restrict innovation in some circumstances because...[add here any one of umpteen complex justifications for the anti software patent stance] ....' If you cannot make your point in 3 or 4 seconds you just will not get through.
1. Ideological arguments - because politicians move with the prevailing winds
2. Little people defence - politicians don't like picking fights with the powerful, as it can damage their careers
3. Criticism - politicians don't like to be told they are stupid and just don't get it. (No more than anyone else!) Better to ride the ego, wine and dine, tell them how clever they are and then explain your perspective in easy to manage chunks or soundbites. They understand, for example, the argument that 'patents encourage innovation and investment and that harmonising laws make things simpler everywhere'. They don't get the argument that 'patents (ans software patents in particular) can restrict innovation in some circumstances because...[add here any one of umpteen complex justifications for the anti software patent stance] ....' If you cannot make your point in 3 or 4 seconds you just will not get through.
Friday, June 27, 2003
From the Berkman Center we learn that "James Boyle, William Neal Reynolds Professor of Law at Duke Law School, has won this year's World Technology Award in Law" James' book Shamans Software and Spleens: Law and the Construction of the Information Society is one of the most enlightening works on intellectual property and information economics I've ever read and this award is thoroughly deserved. The elite list of nominees he was up against gives you an indication of how important his work is:
Prof. Martin Adelman - George Washington University Law School
Mr. Hisamitsu Arai - Intellectual Property Strategy Headquarters,Cabinet Secretariat
Prof. Yochai Benkler - New York University School of Law
Prof. Robert Bohrer - California Western School of Law
Prof. James Boyle - Duke Law School
Mr. Stuart Brotman - Stuart N. Brotman Communications
Prof. Paul Goldstein - Stanford Law School
Dr. Thomas Hoeren - University of Muenster
Dr. Kamil Idris - World Intellectual Property Organization
Mr. Michael Kirk - American Intellectual Property Law Association
Prof. Edmund Kitch - University of Virginia
Prof. Lawrence Lessig - Stanford University
Judge Richard Linn - U.S. Court of Appeals for the Federal Circuit
Prof. Daniel Poulin, Mr. Ernst Perpignand and Mr. Marc-Andre Morissette - LexUM, Faculty of Law, University of Montreal
Prof. Pamela Samuelson - UC Berkeley
Dr. Barbara Simons - Association for Computing Machinery
A fair few things of note around but I'm limited for time today, so check out the usual suspects like Donna Wenthworth but one thing I would like to point you to is David Post's short note at the Volokh Conspiracy -
"Copyright Battles, Con't: Public Library of Science, a group of scientists and physicians seeking to insure that scientific information is placed in the public domain, free of copyright or other intellectual property protection, has launched a campaign to strip copyright protection entirely from works prepared with the "substantial" financial support of the US government.....
It's an important effort, I think (full disclosure: I've been a kind of informal advisor to the PLoS people for a while now), worth keeping an eye on. The recording industry's battles over Internet "piracy" have received most of the buzz in this area, but in many ways this clash between scientists and scientific publishers is equally important for the future of copyright law. " I have a quibble - I'd have said it's more important for scientific information to be in the public domain but I guess that's the techie in me.
Prof. Martin Adelman - George Washington University Law School
Mr. Hisamitsu Arai - Intellectual Property Strategy Headquarters,Cabinet Secretariat
Prof. Yochai Benkler - New York University School of Law
Prof. Robert Bohrer - California Western School of Law
Prof. James Boyle - Duke Law School
Mr. Stuart Brotman - Stuart N. Brotman Communications
Prof. Paul Goldstein - Stanford Law School
Dr. Thomas Hoeren - University of Muenster
Dr. Kamil Idris - World Intellectual Property Organization
Mr. Michael Kirk - American Intellectual Property Law Association
Prof. Edmund Kitch - University of Virginia
Prof. Lawrence Lessig - Stanford University
Judge Richard Linn - U.S. Court of Appeals for the Federal Circuit
Prof. Daniel Poulin, Mr. Ernst Perpignand and Mr. Marc-Andre Morissette - LexUM, Faculty of Law, University of Montreal
Prof. Pamela Samuelson - UC Berkeley
Dr. Barbara Simons - Association for Computing Machinery
A fair few things of note around but I'm limited for time today, so check out the usual suspects like Donna Wenthworth but one thing I would like to point you to is David Post's short note at the Volokh Conspiracy -
"Copyright Battles, Con't: Public Library of Science, a group of scientists and physicians seeking to insure that scientific information is placed in the public domain, free of copyright or other intellectual property protection, has launched a campaign to strip copyright protection entirely from works prepared with the "substantial" financial support of the US government.....
It's an important effort, I think (full disclosure: I've been a kind of informal advisor to the PLoS people for a while now), worth keeping an eye on. The recording industry's battles over Internet "piracy" have received most of the buzz in this area, but in many ways this clash between scientists and scientific publishers is equally important for the future of copyright law. " I have a quibble - I'd have said it's more important for scientific information to be in the public domain but I guess that's the techie in me.
Thursday, June 26, 2003
A company that makes mod chips for the Microsoft XBox has released the design of the chips under an open source license in Australia. Microsoft and rival Sony will not like that. Sony, in January 2002, successfully shut down, through legal action, a [messiah] mod chip [for Sony's Playstation] importer to the UK but failed in a similar action in Australia, in July 2002.
Tuesday, June 24, 2003
George Radwanski, Canada's Privacy Commissioner, resigned yesterday after his recent troubles. It's a long and robust resignation letter and he's sticking strongly to the line that he is the victim of nasty politics, perpetrated by folk in power, who didn't appreciate his effectiveness in his job.
"I hope that all fair-minded Canadians will judge me by what I have accomplished on their behalf and
by the unwavering vigour, commitment and spirit of service with which I have carried out my duties,
and not by the vicious, untrue and distorted things that have recently been said and reported about
me. I have paid a heavy price in these past days for doing my job of overseeing and defending the
privacy rights of all Canadians as I believe they deserve to have it done, but I leave proudly and
with no regrets except for being unable to carry on this vital work."
The Canadian media have a rather more negative perspective on the resignation.
"I hope that all fair-minded Canadians will judge me by what I have accomplished on their behalf and
by the unwavering vigour, commitment and spirit of service with which I have carried out my duties,
and not by the vicious, untrue and distorted things that have recently been said and reported about
me. I have paid a heavy price in these past days for doing my job of overseeing and defending the
privacy rights of all Canadians as I believe they deserve to have it done, but I leave proudly and
with no regrets except for being unable to carry on this vital work."
The Canadian media have a rather more negative perspective on the resignation.
SCOTUS blog on US V ALA on the Supreme Court decision upholding CIPA enforcement of library filters. They also provide a brief accessible summary of the positions of the various justices.
Jenny Levine's got a collection of links on the case. You can tell she's not overly enamoured with the decision,
"This decision only points out even further how out of touch
our politicians and judges are with the daily lives of the
people they are supposed to represent. Obviously none of
them use the public libraries they just deemed themselves
knowledgeable enough to censor.
Final thought for the night: someone please correct me if
I'm wrong, but there's no additional funding for libraries to
start purchasing site licenses for filtering software, using staff
time and resources to create internal solutions, or
outsourcing the job of building something. So now we're
supposed to divert existing monies (that help pay for the
access itself?) from our already weakened budgets in order
to be compliant with this decision? I'm still looking for the
common sense logic here...."
I suspect one of the Chief Justice's arguments, which he will be most criticised for, by opponents of the decision will be: "A library’s failure to make quality-based judgments about all the materials it furnishes from the Web does not somehow taint the judgments it does make. A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that roll when it collects material from the internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when they judgments are made for just the same reason.” He's not actually treating like with like here and is pre-supposing that the libraries define what gets filtered out. Whereas it is the software filter companies who decide what criteria are used for filtering. Justice Souter, who disagreed with the majority (6-3) opinion, argues that excluding porn from an existing set of resources is different from actively spending money on porn to include in those resources. For a self described luddite, that's a pretty good demonstration that he understands the difference between the 'push' nature of most conventional media versus the 'pull' nature of the Net. Chief Justice Rehnquist, in the paragraph quoted, doesn't display a direct awareness of the push v pull distinction. It's unfair to take the paragraph out of context and I have not yet read the entire 56 page ruling but that one jumped out at me a bit.
One of the concurring justices (can't remember which at the moment) seems to be primarily swayed by the argument that there is no big deal here. If library patrons want unfiltered access to the Net via a library computer, they can just ask the librarian to switch the filter off. The possibilty of such an outlet then brings the question of anonymity into play. I might find it no big deal to ask a librarian to switch a filter off because, for example, it happens to block access to a site like the Ethical Spectacle, maintained by a prominent critic of software filters, Jonathan Wallace. (The websites of people like Jonathan and Seth Finkelsteinhave been blacklisted by some filter software companies.) Others might not be prepared to ask a librarian to switch off a filter for fear of being perceived in a negative light as someone interested in pornography. In his dissent, Justice Souter, on this point said "First, the statute says only that a library 'may' unblock, not that it must...In addition, it allows unblocking only for a 'bona fide research or other lawful purposes'. There is therefore necessarily some restriction, which is surely made more onerous by the uncertainty of its terms and the generosity of its discretion to library staffs in deciding who gets complete Internet access and who does not." Absolutely.
Jenny Levine's got a collection of links on the case. You can tell she's not overly enamoured with the decision,
"This decision only points out even further how out of touch
our politicians and judges are with the daily lives of the
people they are supposed to represent. Obviously none of
them use the public libraries they just deemed themselves
knowledgeable enough to censor.
Final thought for the night: someone please correct me if
I'm wrong, but there's no additional funding for libraries to
start purchasing site licenses for filtering software, using staff
time and resources to create internal solutions, or
outsourcing the job of building something. So now we're
supposed to divert existing monies (that help pay for the
access itself?) from our already weakened budgets in order
to be compliant with this decision? I'm still looking for the
common sense logic here...."
I suspect one of the Chief Justice's arguments, which he will be most criticised for, by opponents of the decision will be: "A library’s failure to make quality-based judgments about all the materials it furnishes from the Web does not somehow taint the judgments it does make. A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that roll when it collects material from the internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when they judgments are made for just the same reason.” He's not actually treating like with like here and is pre-supposing that the libraries define what gets filtered out. Whereas it is the software filter companies who decide what criteria are used for filtering. Justice Souter, who disagreed with the majority (6-3) opinion, argues that excluding porn from an existing set of resources is different from actively spending money on porn to include in those resources. For a self described luddite, that's a pretty good demonstration that he understands the difference between the 'push' nature of most conventional media versus the 'pull' nature of the Net. Chief Justice Rehnquist, in the paragraph quoted, doesn't display a direct awareness of the push v pull distinction. It's unfair to take the paragraph out of context and I have not yet read the entire 56 page ruling but that one jumped out at me a bit.
One of the concurring justices (can't remember which at the moment) seems to be primarily swayed by the argument that there is no big deal here. If library patrons want unfiltered access to the Net via a library computer, they can just ask the librarian to switch the filter off. The possibilty of such an outlet then brings the question of anonymity into play. I might find it no big deal to ask a librarian to switch a filter off because, for example, it happens to block access to a site like the Ethical Spectacle, maintained by a prominent critic of software filters, Jonathan Wallace. (The websites of people like Jonathan and Seth Finkelsteinhave been blacklisted by some filter software companies.) Others might not be prepared to ask a librarian to switch off a filter for fear of being perceived in a negative light as someone interested in pornography. In his dissent, Justice Souter, on this point said "First, the statute says only that a library 'may' unblock, not that it must...In addition, it allows unblocking only for a 'bona fide research or other lawful purposes'. There is therefore necessarily some restriction, which is surely made more onerous by the uncertainty of its terms and the generosity of its discretion to library staffs in deciding who gets complete Internet access and who does not." Absolutely.
Monday, June 23, 2003
Following the deliberations of JURI on software patents, the European Parliament are scheduled to vote on the matter on 30 June, according to this contribution to Slashdot. For those of you who may be concerned enough about this to consider contacting your Member of the European Parliament about this, the UK OFFICE OF THE EUROPEAN PARLIAMENT have provided a convenient map to allow you to identify your representatives.
Breaking news - the Supreme Court has just posted it's judgement in the CIPA library filtering case, US v ALA. Looks as though they've ruled the Act constitutional. No doubt the legal scholars will be all over this one very soon.
Phillip Greenspun in the Harvard blogosphere is concerned at the privatisation of previously public owned resources. His theory is that in spite of an economic downturn, the stock prices of companies absorbing these commons is going up because of this absorption. It would be really interesting to see some hard evidence of such a direct link, if there is some out there. Larry Lessig has offered some relevant background to the part of the story about Disney flyovers.
Update: Given that the Supreme Court has now ruled CIPA is ok on first amendment grounds, it's interesting to note that Reporters Without Borders have just published their second report on the state of global Net censorship. Vint Cerf has written the foreword. In it he says:
Truth is a powerful solvent. Stone walls melt before its
relentless might. The Internet is one of the most powerful
agents of freedom. It exposes truth to those who wish to see
and hear it. It is no wonder that some governments and
organizations fear the Internet and its ability to make the truth
known. The phrase "freedom of speech" is often used to
characterize a key element of democratic societies : open
communication and especially open government. But freedom
of speech is less than half of the equation. It is also vital that
citizens have the freedom to hear and see. It is the latter area in
which many governments have intervened in an attempt to
prevent citizens from gaining access to information that their
governments wish to withhold from them.
Breaking news - the Supreme Court has just posted it's judgement in the CIPA library filtering case, US v ALA. Looks as though they've ruled the Act constitutional. No doubt the legal scholars will be all over this one very soon.
Phillip Greenspun in the Harvard blogosphere is concerned at the privatisation of previously public owned resources. His theory is that in spite of an economic downturn, the stock prices of companies absorbing these commons is going up because of this absorption. It would be really interesting to see some hard evidence of such a direct link, if there is some out there. Larry Lessig has offered some relevant background to the part of the story about Disney flyovers.
Update: Given that the Supreme Court has now ruled CIPA is ok on first amendment grounds, it's interesting to note that Reporters Without Borders have just published their second report on the state of global Net censorship. Vint Cerf has written the foreword. In it he says:
Truth is a powerful solvent. Stone walls melt before its
relentless might. The Internet is one of the most powerful
agents of freedom. It exposes truth to those who wish to see
and hear it. It is no wonder that some governments and
organizations fear the Internet and its ability to make the truth
known. The phrase "freedom of speech" is often used to
characterize a key element of democratic societies : open
communication and especially open government. But freedom
of speech is less than half of the equation. It is also vital that
citizens have the freedom to hear and see. It is the latter area in
which many governments have intervened in an attempt to
prevent citizens from gaining access to information that their
governments wish to withhold from them.
Ian Lance Taylor visited SCO to find out about their case against IBM and linux. There was no direct access to legal documents and SCO are still keeping the detailed evidence and claims under wraps but there is more detail here than in previous media reports. Taylor did have to sign a draconian non disclosure agreement but was shown a piece of code that SCO claimed infringed their rights. Taylor wasn't convinced by the example and wasn't able to provide a copy because of the NDA but his perspective was that that it was possible that some code may have been copied from unix into linux but that there were numerous examples of the same code to be found easily around the net and that SCO were stretching the definition of what constituted a derivative work. Nice to see a few scraps emerging on this saga but the explicit evidence and court documents remain elusive and beyond the scope of open scrutiny for the moment.
The Special Olympics World Summer Games 2003 opened in Dublin on Saturday evening. Can somebody tell me why the british media have ignored it? As the official site says "This is the first time in the 35-year history of Special Olympics that a World Games Opening Ceremony has been held outside of the United States of America." It's on the UK's doorstep and yet the media here are more interested in a guy with a false beard and a dress sneaking into a 21st birthday party.
Friday, June 20, 2003
John McCain, Senate Commerce Committee chairman, will hold a hearing on the fallout from Verizon having to hand over customer details to the RIAA.
Meanwhile Eric Raymond is weighing into the SCO UNIX trade secret claims lawsuit with IBM. According to the story at PC World,
"Raymond claims to have collected the names of 60 Unix users who are willing to sign affidavits that disprove SCO's contention that its Unix System V source code, which forms the basis of IBM's AIX Unix, contains trade secrets."
Meanwhile Eric Raymond is weighing into the SCO UNIX trade secret claims lawsuit with IBM. According to the story at PC World,
"Raymond claims to have collected the names of 60 Unix users who are willing to sign affidavits that disprove SCO's contention that its Unix System V source code, which forms the basis of IBM's AIX Unix, contains trade secrets."
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