August 2008

As Berin noted in the last post, we have installed Disqus on the TLF as our new commenting system. There are a couple of things I’d like to highlight about the new system.

First, I want to underscore what Berin said: claim your comments! Why is this so important? First, this lets you and other users see a page with every other comment you’ve posted on the TLF. Second, people can choose to “follow” your comments and be notified when you post something. Finally, over at the TLF community page on Disqus there’s a “Top Commenters” leaderboard, and I know you want to be at the top. So don’t start from zero, claim all your existing comments.

Next I want to draw your attention to the two little arrows to the left of commenters’ avatars (photos). Most folks know what this means, but I’ll explain anyway for those who may not. This lets you vote on each comment to let the system know whether the comment is especially smart and interesting or boneheaded and unhelpful. Good comments (up arrow) move up to the top of the thread, and comments that receive negative votes (down arrow) move toward the bottom and eventually disappear if they get enough downgrades. If you’d like to sort comments by the order they were posted, and not by votes, you can click the “Options” button below and choose your sorting preference.

Last, I want to just mention a couple other cool features. If you post a comment and someone posts a reply to you, you’ll get an email notifying you of the fact. Pretty cool, but it gets better. To post a comment in reply to that reply you don’t have to visit the blog, you can just hit “reply” and write an email in response. Your email will get posted to the TLF blog as a reply comment. Also, Disqus makes a bunch of RSS feeds available. There’s a feed for all TLF comments, feeds for comments posted to a specific blog post, feeds for specific commenters, etc.

Anyhow, hope you folks like it. Now go claim your comments!

Ahoy, TLFers!  You’ll notice that we’ve incorporated a new comment management system on the blog:  Pronounced “discuss” (not “discus” as one might well assume–a potential branding problem indeed for an otherwise promising start-up), Disqus has exploded in the last few months (Google Trends) to over 30,000 blogs.

Disqus should help the TLF become even more of a true community–in which comments can be as valuable as blog pieces themselves and in which the line between “reader” and “author” is further blurred.  Here‘s a list of cool things Disqus will let you, TLF’s valued readers to do:

  • Track and manage comments and replies
  • More control over your own comments on websites
  • Never lose your comments, even if the website goes away
  • Build a global profile, or comment blog, to collect and show off what you’re saying
  • Easier to comment on websites using Disqus
  • Reply to comments through email or mobile
  • Edit and republish comments with one click

In particular, comments can now be directed as replies to other comments, creating clear discussion threads.

You might be wondering:  “If Disqus is so darn awesome, why haven’t we incorporated it before?”  The answer is that, until the new Disqus plug-in for WordPress came out a few days ago, comments were stored only on the Disqus site and merely replicated on partner blogs–making comments unsearchable, among other things.  Now, we get the best of both worlds:  Comments will beseemlessly duplicated and synchronized between our database and Disqus’s.

While it will still be possible to comment on the blog just as before (anonymously or merely without a Disqus account), we do encourage readers to take a minute (literally) to set up a free Disqus account.  (For those of you who enjoy reading Terms of Use and Privacy policies or who just stay up late at night clutching their now-constitutionally-protected firearms and worrying about being tagged, tracked and someday unceremoniously culled from the herd, here are Disqus’s policies.)  For the less privacy-obsessed, here‘s a general FAQ about Discus.

There are a number of bells and whistles you can enable–like tying your Disqus account to other social networking sites and adding a small image of yourself (or some other hopefully-family-friendly image).  But the one important thing everyone who has posted comments in the past should do is to claim” your old comments by entering the email address associated with those comments on Disqus. Continue reading →

You can read McCain’s Technology plan here. Among other things he’s for “open and fair” trade and preserving the FCC’s 4 freedoms, but will not be in favor of a prescriptive, legislative approach to net neutrality. Overall it’s a mix of pretty good policies, albeit that one on muni broadband.

  • Good:  John McCain Opposes Higher Taxes On Wireless Services. John McCain has opposed new state and local discriminatory taxes and fees on wireless services, which are relied upon by over 250 million Americans. Taxes account for over 20 percent of many mobile phone users’ bills.
  • Good:  John McCain Has Been A Long And Ardent Supporter Of Fair And Open World Trade. Trade greatly benefits America and the American worker. The best protection for American workers is to ensure that they have access to the world’s customers, 95 percent of whom live outside the United States. This access is particularly important for workers in the information technology sector.
  • Bad: John McCain believes that people acting through their local governments should be able to invest in their own future by building out infrastructure to provide high-speed Internet services. For this reason, Senator McCain introduced the “Community Broadband Bill,” which would allow local governments to offer such services, particularly when private industry fails to do so.

Tim has already analyzed the decision of the Federal Circuit in Jacobsen v. Katzer, but I’d go even further than he did and say that it could broadly impact the media and software industries. Because violating a condition to copyright can avail a plaintiff to seek greater damages than breach of contract, look for copyright owners to limit the scope of a license to use or redistribute a song or a software program by making them “conditions” of the copyright license and not contractual “covenants.”

The case is good for copyright owners that use open source licenses. But the rationale of the decision is not limited to only open source.  And who relies on copyright the most? RIAA and MPAA. It’s only a decision of an interlocutory appeal, but copyright holders everywhere will be reviewing their licenses after this one. My fellow tech transactional attorney friends could be busy, as what’s good for the goose is good for the gander.

We’re installing a new commenting system on the blog, so you’ll find that all old comments will be gone for a little while. Don’t worry; they’ll be back shortly. We’ll have more info on the new system soon.

Some good news for bloggers.  This was posted today on the Heritage Foundation “Foundry” blog by Dave Mason, former chairman of the FEC (Mason is now working with us at Heritage as a Visiting Senior Fellow):

“Bloggers and web site operators may support, oppose, link to, and work cooperatively with federal political candidates. This freedom was reaffirmed when the newly re-constituted Federal Election Commission released its first two enforcement cases August 12.

The Commission’s refusal to regulate blogging and internet sites is not new, but it is notable is that the pro-blogger decision was made within a week or two of the new Commission taking office. Of the scores of items on its docket, the new Commission chose to address this one first: quite likely because they wanted to send a signal to that bloggers are free to engage in politics

Specifically, the Commission said that Gordon Fischer, a former state political party chairman, did not violate election law when he maintained a web site and blog (Iowa True Blue) promoting Barack Obama and criticizing Hillary Clinton. (Our friends at CCP note that the complaint was filed by a Clinton supporter: observing that all too many FEC complaints are filed for political harassment

–Money that Fischer spent creating and maintaining the site was not regulated by the FEC.

–Even if Fischer coordinated (discussed the blog and postings) with the Obama campaign, the site remained free from Federal election regulation.

–A link to a campaign web site or video does not subject the site linking to the campaign to regulation.

–blogs and web sites may “republish” campaign material without violating election laws.

Bottom line: by making this case one of the first two it released, the Federal Election Commission reaffirms that bloggers and web site operators may support and oppose political candidates, republish or link to campaign material, and work as closely as they wish with campaigns in doing so.

The one activity that remains subject to FEC regulation is paying for an ad on someone else’s web site supporting or opposing a Federal candidate.”

An interesting poll out today by pollster Scott Rasmussen:  Asked whether the government should require all radio and television stations to offer equal amounts of liberal and conservative political commentary,  47 percent — nearly half — said “yes.”  (39 percent were opposed).  Perhaps even more surprising, support has increased since last year, when Americans split evenly (41-41) on this issue.

Perhaps this shouldn’t be a  surprise.  Americans, after all, have long been lukewarm about the First Amendment, with opinion polls famously (though perhaps apocryphally) have long shown  would itself be opposed by most Americans.   Moreover, a casual answer to a pollster is a long way from active support of a particular law.

Still, the results of this poll should be troubling for defenders of free speech in general, and opponents of the fairness doctrine in particular.   Although an explicit re-institution of the long-dead doctrine is still not likely, this poll underscores the general danger of other content controls that may achieve the same ends under a different name.

Oh, and those of you who get their news from blogs shouldn’t feel too cocky about the dangers faced by the old-fashioned broadcasters.  The same Rasmussen poll showed that 31 percent of the public supports Fairness Doctrine controls on blogs, too.

Whiskey GlassAs we’re wont to do this time of year, many of your humble Technology Liberation Front contributors will be attending PFF’s annual Aspen Summit next week and we think many of you will too. So, we’ve decided to hold the sixth in our series of Alcohol Liberation Front get-togethers on Tuesday, 8/19, at 9 p.m. at the Sky Bar located at the base of the Aspen Mountain. Like we did last time, we’ll also be recording our contributors (and hopefully some of you) pontificating for our podcast, Tech Policy Weekly. So drop on by and have a drink with your favorite TLF bloggers.

My ongoing media DE-consolidation series represents an effort to set the record straight regarding one of the leading myths about the media marketplace today: the notion that rampant consolidation is taking place and that operators are only growing larger and devouring more and more companies.

Nothing could be further from the truth. Over the past 3 to 5 years, traditional media operators and sectors have been coming apart at the seams in the face of unprecedented innovation and competition. The volume of divestiture activity has been quite intense, and most traditional media operators have been getting smaller, not bigger. “Traditional media’s numbers are shrinking,” argued FCC Commissioner Robert McDowell in a recent speech. “The ironic truth is,” McDowell continued, that “in many cases, media consolidation has actually become media divestiture. Companies… have been shedding properties to raise capital for new ventures.”

And so that trend continues today with the announcement from Cox Enterprises that it will be selling almost all its newspapers. According to the The Atlanta Journal-Constitution:
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Over at Ars Technica, I cover an important decision from the Federal Circuit. For the first time, a federal appeals court has held that distributing copies of a free software product in violation of its license term is copyright infringement, and not merely a breach of conract.

I think Mike is a little bit off base here in comparing the decision to the recent “promo CD” case:

Creative Commons seems to basically do the same thing that stamping “not for resale” does on CDs: it creates a separate license on top of copyright, and then tries to use copyright’s defenses against breaking that license. The court in the Universal Music case seemed to indicate that such claims on top of copyright weren’t enforceable. But this Artistic License decision seems to say that some claims on top of copyright can be upheld.

In the Universal case, the court found that the “not for resale” language wasn’t enforceable because there was no “exchange” that resulted in the “license” (also known as “consideration” — which is usually required for US contracts to be binding): “UMG gives the Promo CDs to music industry insiders, never to be returned. … Nor does the licensing label require the recipient to provide UMG with any benefit to retain possession.” The same is true of Jacobsen’s software, as well. The software is given, never to be returned, and the license doesn’t require the end user to provide Jacobsen with any benefit in return.

I address this point in the final paragraph of my story:
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