Keeping politicians' hands off the Net & everything else related to technology
. . . in the communications world.
This recent TechKnowledge by James Plummer makes the case for more freedom in the use of the radio spectrum. This will bring more voices to the media marketplace, fostering competition and diversity in ideas and culture.
“Low-Power FM: Freedom is Diversity” concludes: “The FCC and Congress are both poised to further open up the FM spectrum. Both should ignore the pleadings of special interests on all sides as they do so. “
No.
Google stands accused of violating California law by failing to link to its privacy policy prominently enough. Linking to privacy policies on home pages was an experiment that failed long ago. People don’t read them. People who are interested in reading them can find them so long as they’re placed sensibly on the Web site.
What a strange kabuki dance, to fret about whether Google links to its privacy policy on its home page. Google does better than most – which is, in truth, only kinda good – at informing the public about its privacy practices and the privacy consequences of its products.
Move along. Nothing to see here.
Update: I’ve written a little bit more on this at Cato@Liberty.
Over at Ars, I’ve got a story up about a ruling on fair use in the creationist Intelligent Design movie Expelled:
The controversy centers around a segment about an hour into the film. Science advocate PZ Myers argues that greater science literacy would “lead to the erosion of religion,” and expresses the hope that religion would “slowly fade away.” The narrator, Ben Stein, asserts that Myers’ ideas aren’t original. Rather, he is “merely lifting a page out of John Lennon’s songbook.”
The viewer is then treated to a clip from John Lennon’s “Imagine,” with the lyrics “Nothing to kill or die for/And no religion too.” The music is accompanied by black-and-white footage “of a military parade, which gives way to a close up of Joseph Stalin waving.” Next, the film cuts to a guest who argues that there is a connection between “transcendental values” and “what human beings permit themselves to do one to the other.” Evidently, religion is the only thing standing between us and Stalinist dictatorship.
Judge Stein’s task wasn’t to critique the dubious logic of this segment, but to evaluate the narrower question of whether the film’s use of “Imagine” is fair under copyright law. He noted that the film was focused on a subject of public interest, and that the film was commenting on Lennon’s anti-religious message. The excerpting of copyrighted works for purpose of “comment and criticism” is explicitly protected by the Copyright Act, and Judge Stein ruled that this provision applied in this case.
It’s worth keeping in mind that no competent lawyer would have taken Ono’s case if we were talking about a quote from one of Lennon’s books rather than a clip from his song. But there’s no logical difference between the two. The music clip in this case is playing precisely the same role in this movie as a blockquote plays in the average blog post. Moreover, the dozen or so words of the “Imagine” quote is much shorter than most blockquotes. I conclude:
It is unfortunate that Lennon’s heirs sought to use copyright law to squelch criticism of Lennon’s lyrics. No matter how dishonest Stein and company’s arguments may be, they have the right to make them, and copyright must give way to the First Amendment. Ono’s aggressive tactics will give Stein and company an undeserved PR victory, allowing them to play the beleaguered underdogs fighting the “Darwinist” establishment. The way to counter Expelled is with logic and evidence, of which there’s an ample supply. Overzealous application of copyright law is counterproductive.
I haven’t had time to read it yet, but Princeton’s IT Policy Center has a new paper out about open file formats and government transparency that’s worth checking out:
If the next Presidential administration really wants to embrace the potential of Internet-enabled government transparency, it should follow a counter-intuitive but ultimately compelling strategy: reduce the federal role in presenting important government information to citizens. Today, government bodies consider their own websites to be a higher priority than technical infrastructures that open up their data for others to use. We argue that this understanding is a mistake. It would be preferable for government to understand providing reusable data, rather than providing websites, as the core of its online publishing responsibility.
In the current Presidential cycle, all three candidates have indicated that their think the federal government could make better use of the Internet. Barack Obama’s platform explicitly endorses “making government data available online in universally accessible formats.” Hillary Clinton, meanwhile, remarked that she wants to see much more government information online. John McCain, although expressing excitement about the Internet, has allowed that he would like to delegate the issue, possible to a vice-president.
But the situation to which these candidates are responding — the wide gap between the exciting uses of Internet technology by private parties, on the one hand, and the government’s lagging technical infrastructure on the other — is not new. The federal government has shown itself consistently unable to keep pace with the fast-evolving power of the Internet.
In order for public data to benefit from the same innovation and dynamism that characterize private parties’ use of the Internet, the federal government must reimagine its role as an information provider. Rather than struggling, as it currently does, to design sites that meet each end-user need, it should focus on creating a simple, reliable and publicly accessible infrastructure that “exposes” the underlying data. Private actors, either nonprofit or commercial, are better suited to deliver government information to citizens and can constantly create and reshape the tools individuals use to find and leverage public data. The best way to ensure that the government allows private parties to compete on equal terms in the provision of government data is to require that federal websites themselves use the same open systems for accessing the underlying data as they make available to the public at large.
The paper cites our own Jerry Brito, who has done some great work in the same vein, in several places.
Melissa Ngo has hung out her shingle as a privacy and information policy consultant, and she’ll be blogging about various privacy and civil liberties issues at PrivacyLives.com.
In her prior role as senior counsel and director of the Identification and Surveillance Project at the Electronic Privacy Information Center, Melissa was a real credit to that organization. I especially appreciated her work on identification policy, national ID issues, and the REAL ID Act. She is as fluent in this field as anyone. (Now, we don’t agree on everything, of course, but wouldn’t that be boring?)
I’m glad she chose “Privacy Lives” for the name of her site, where she intends to “chronicle and analyze . . . attacks [on privacy] and various defenses against them to show that privacy lives on.” That’s an upbeat outlook, and it’s one I share. (Endlessly lamenting the privacy apocalypse must be so enervating! . . .)
Again, check out PrivacyLives.com. Good luck, Melissa!
Orin Kerr is a law professor at George Washington University and a blogger on the popular Volokh Conspiracy. He is a thoughtful, open-minded legal scholar, but I don’t think it’s unfair to say that he reliably sides with law enforcement on Fourth Amendment issues.
He recently posted a draft article defending the third-party doctrine, which is an interpretation of the Fourth Amendment holding that a person sharing information with a third party cannot make a Fourth Amendment claim to protection of that information. Use an ISP to transmit your email? No Fourth Amendment protection for its contents. Have a bank account? No Fourth Amendment protection for your banking records. Etc.
He treats as similar two issues that I see as separate: revelations gleaned from informants/agents and from business records. I have always thought of the third-party doctrine as being about business records. My remarks here apply to that area only.
I think the third-party doctrine was never right, and that it grows more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The third-party doctrine exempts law enforcement from the Fourth Amendment’s reasonableness and warrant requirements when it looks at these records.
It’s wonderfully contrarian to run against the grain and defend the third-party doctrine, which has plenty of detractors, but sometimes contrarians can be wrong. I think Professor Kerr is, and here I’ll briefly lay out a few of the fundamental differences I have with his paper—all toward the end of perfecting it before it’s published in the Michigan Law Review next year, of course!
The basic gist of the article is that the third-party doctrine is better than most people think, for two reasons. First, it’s technologically neutral. It prevents criminals from making opportunistic use of technology to circumvent the basic balance between security and privacy struck by the Fourth Amendment. Second, it’s easier to administer than alternatives. The arguments against the third-party doctrine are weaker than most people believe, Kerr says.
Continue reading →
It’s worth noting that the Viacom lawsuit against YouTube makes little sense in light of the DMCA. For the few TechLiberation readers unfamiliar with the DMCA, that’s because the law grants YouTube, and other sites with unedited user-generated content “safe harbor.” So long as YouTube honors requests to take-down material that is claimed to be protected under copyright, it isn’t liable for that material being posted in the first place.
Google is following the DMCA and even going beyond its legal obligations to protect copyright.
In fact, YouTube suspended CEI’s account—wiping out all of our videos—based on a disputed 7 seconds of footage used in one of our videos. This was a very severe punishment and thankfully our account was reinstated after we were able to argue against the merits of the take-down. For those who do violate copyright, permanent suspension is a harsh punishment—so long as the account in questions isn’t a throw-away. Google is going well beyond the required take-down in this instance.
Yet, one of the complaints Viacom has about YouTube is that it hasn’t implemented software that would automatically weed out some copyrighted material produced by the entertainment industry—something that, again, would be above and beyond their legal obligations. YouTube planned to implement this software last year, but has failed to roll it out to the site. Viacom can complain about this delay, but not in the legal sense. Viacom simply has no grounds for a legal complaint unless they can somehow argue that the safe harbor provision of the DMCA is somehow invalid. A copyright lawyer might be able to suggest to us how such a thing could be done, if possible.
If Viacom means to show that the DMCA is in conflict with other copyright law and therefore the DMCA should be abandon or at least rewritten, it makes one wonder what a new system would look like. The current system of free posting and honoring take-downs seems to work well. It allows users to upload 10 hours of content per minute to YouTube—most of it seems to be kittens doing amusing things, not pre-lease episodes of 24—while still honoring copyright through take down. This has created a whole new medium for self-expression, expanding the media market in ways we are still trying to understand.
Were another balance to be struck, one that place the burden of policing content on YouTube, we would see this explosion of user-generated content fizzle out…or at least, like I said in my previous post, on YouTube.
Another balancing of the concerns of video sites and content owners—this one more heavily favoring content owners—would create significant barriers to video sharing and drive many from the market. Even so, user-generated video won’t be going away and infringement will continue in different forms. So again I’m forced to ask, “What is Viacom getting out of this?”
As the Viacom’s lawsuit against YouTube and its parent company Google rolls forward, it’s worth asking if any outcome of the suit will change the situation for Viacom. In fact, were the impossible to happen, like a judge shutting down YouTube altogether, Viacom may be worse off.
CNET’s coverage of the piece sites an anonymous source from Viacom who notes that “The company basically is paying for an entire new department to watch YouTube.”
But imagine how difficult it will be to police amateur video without YouTube or other video sharing sites around—it’d be impossible. That’s because even if huge repositories of video are made illegal, web-based video won’t just disappear, it’ll move.
Our favorite cute kitten videos could end up on the same foreign servers that are serving up online poker and other forms of gambling to Americans each day, despite that activity being made illegal by the last Congress. (That was a Repubican Congress, the guys who stay out of your lives.) Just like Sierra Leone lent its flag to pirate broadcasters in the 1960s, it may rent its servers to pirate video broadcasters of the web variety.
On the other hand, videos could move to smaller websites domestically, even individual blogs and web pages. But the location doesn’t really matter, either scenario would be bad for content creators. Balkanizing videos and making them harder to find makes them harder to police. Similarly, moving video from larger sites run by legitimate, domestic businesses manes take-down notices might not be honored.
It’s possible that YouTube could function similarly as an index, just as Google does for web content. But the Torrent Spy case suggests that even “contributory” copyright infringement—making the copyright-infringing material easier to find—is just as illegal as hosting it in the first place. This means that even video search could be off the table if the principles of the DMCA aren’t upheld.
Ultimately, I just don’t see what Viacom thinks it’s getting out of this lawsuit, other than the obvious benefit that comes with $1 billion in cold hard cash. To think this move will suddenly make the realities of web-based video go away is foolish at best. It might be hard for some to accept, but we just can’t make it 2004 again.
I was hoping to comment on a UK Libertarian Party blog post called “Car Crash Cato,” but the blogger.com comment function has never worked for me: The CAPTCHA doesn’t display and/or I’m supposed to sign up for and log in to something. Thanks – I’ve got enough logins.
The next first solution is to send a note to the author, but Patrick Vessey at the UK Libertarian party doesn’t seem to have made any contact information available.
SO, here’s my response to a UK Libertarian Party blog post criticizing the Cato Institute for giving the Milton Friedman Prize for Advancing Liberty to Yon Goicoechea and for my recent Cato@Liberty blog post “L-1 and China – Oh, Nevermind – Naomi Klein.” (You’ll want to read the post first . . . .)
Thank you, Andrew [another commenter], for handling the Venezuela issue very nicely.
As for my posting on the Cato@Liberty blog – it’s my post, reflecting my thinking, not any Cato Institute policy – let me urge you to read the piece I wrote about L-1, which I linked to in that post. Concluding there, I wrote, “A corporate lobbying operation can do as much harm to liberty as any government agency or official.”
This is not a story about which “Cato obviously does not want to hear” – I’ve been writing about it at Cato. I was disappointed when Klein took an issue that I feel passionate about – and muddied it with her confused and divisive ideological dreck.
I agree that the corporate form of organization is a subsidy – a government-imposed transfer of risk from owners to the general public – but that does not give L-1 any coercive power that’s relevant here. Only L-1’s combination with government power – in the U.S., China, or anyplace else – gives it access to legal coercion. The necessary condition for what Klein, you, and I find objectionable is the exercise of government power.
In fact, I’ve yet to understand what “corporate power” is, because once you de-link a corporation from access to government power, the corporation is just a legal construct, an entity that anyone (who’s not lazy) can walk away from and suffer no repercussion (risk-transfer aside).
I don’t know anything about the UK Libertarian Party, but I do find it strange that a person associated with it would be unclear enough on the nature of power to side with Hugo Chavez and Naomi Klein over the Cato Institute and me.
Over at Ars, I discuss the implications of this week’s Autodesk decision:
In a 21-page decision, Judge Jones sided with Vernor. Citing the 1977 case of United States v. Wise, which involved the sale of used films obtained under dubious circumstances, Jones found that the Ninth Circuit’s precedents suggested that the circumstances surrounding the sale of AutoCAD software constituted a sale, not merely a license. Therefore, the First Sale Doctrine applied, and Vernor was not bound by any of the terms in Autodesk’s license agreement.
But the judge acknowledged that three more recent Ninth Circuit decisions involving software seemed to cut in the opposite direction without explicitly overturning Wise. Jones found that Wise was controlling precedent, and ruled in Vernor’s favor. If the case gets appealed to the Ninth Circuit, the conflict among these precedents is likely to occupy the court’s attention. The trio of more recent cases hints that the Ninth Circuit is sympathetic to characterizing software sales as licenses for legal purposes. However, none of those cases involved circumstances exactly like Vernor’s, and the court never dealt squarely with the question of what factors determine whether software is sold or licensed.
If Jones’s ruling is upheld on appeal, it will have important consequences for the software industry, where the legal fiction that software is merely licensed is widely employed. In addition to discouraging the market for used software, software firms have also attempted to use the “licensed, not sold” theory to enforce restrictions on reverse engineering that would otherwise be fair use under copyright law. If software is sold, rather than licensed, then no license is required to install and use the software, and the terms of shrink-wrap licenses may not be legally binding.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
