So I just met Harry Max (at a dinner for Dave Winer, hosted by Sylvia Paull. Aside: it was fun, and there was one, yes one! guy there who had never seen a blog. So Scott Rosenberg gave him an idea of what blogs are about and I suggested he start with JD's because JD has a lot of topics grouped, plus the blog roll to the left has a variety of people linked, with the little stars noting recent updates, and could get him to everyone else around the table including Dave.) So, Harry has conceived and founded Public Mind where users request some information or help or product, and then other users respond. They are either going to be huge in a month, or we will never hear of them again, he said. Though they have been in development for 4 years, surviving by twists and turns the tech blow out.
But my question is, how do you manage the IP? I mean, what if someone thinks up something they need (the mother of invention) and writes it up in great detail, and someone else answers it, matches it in effect. Who is the originator? Yes, ideas cannot be copyrighted, but the idea expression dichotomy argument could get another run here. As groups grow, and the group think happens (there are 7 users in that discussion), will they come up with something that is patentable or copyrightable? I mean, it's the best of digital media, the best of collaboration and finding needs and filling them with hopefully meaningful solutions.
But how do you do the IP?
Do you redo IP, when you realize the IP issues with digital media? Or do you redo the digital media side of things? So if digital media disintermediates power, and in this case, the power of the IP regime to contain our jointly conceived of and built product, across disparate nodes of people and information, then how do you contain the disruptive process for making digital media?
- ...having issued notifications in good faith compliance with the DMCA, has decided not to take the additional step of suing for copyright infringement for the materials at issue. Given the widespread availability of the stolen materials, Diebold has further decided to withdraw its existing DMCA notifications and not issue further ones for those materials.
Scot Hacker/Birdhouse laments the coming fate of MP3.com, where Vivendi bought it, and plans to blow the database away, including all mp3s, video, cover art and anything else associated with artist's work (see the Register on this). Mike Robinson, founder and former CEO is pleading with Vivendi to allow Archive.org (of Brewster Kahle fame) to mirror it all, but that takes time, and Vivendi wants a clean harddrive by December 3. You'd think they could just forward the backup tapes. But then again, one wonders whether they realize they are in the information business at all with a plan like this (hello, we keep the information...).
Free, free freeeeee... not
Speaking of mp3s, John Schwartz/NYTimes looks at When Free Isn't Really Free: "... free isn't what it used to be, especially on the internet." He says web giveaways always bring problems like "computer glitches, frustration and loss of privacy and security -- not to mention the threat of expensive lawsuits for large-scale music downloaders." (That would actually be uploaders... but who's counting.) Add to those issues spyware, piggybacked on other software and used by companies to watch and report what users do, though the FTC has tried to stop companies from distributing it. Some companies, a few according to the article, can still make money with free models, but many others are doing other things, like utilizing spyware, to collect information on users to sell, to make money.
Aside: The properties of digital media are completely different than those in the physical world.
I must point out that the article itself in the paper edition has a collage of images supporting stereotypes of thieves and hucksters outlined by a computer screen, while the online edition has only one image of a thief shoving a silver platter into a pillowcase. While the written style of the article seems to be a collage of statements making a conversation similar to what topic bloggers do, and gets closer to a kind digital media composition, the associated images make me wonder if Schwartz sees this, because the artwork imagines such a misunderstanding of digital media, which is not at all analogous to physical property. Taking an mp3 still leaves the owner with the original, because digital media is about bits, and copies, but a silver platter represents something that is supposedly rare and somewhat unique.
Back to our regularly scheduled programming:
But it's Siva who hits the nail on the head:
- "There are costs built into every step of these media systems," said Siva Vaidhyanathan, the director of communication studies in the department of culture and communication at New York University. The money just does not go to record companies and artists. "What's really at stake here is who's going to get the money and in what-sized pieces," he said.
So if it's just a pricing issue, and people are pushed to give up the free because of computer hassles and fears about privacy and security, then:
- "It's not rocket science, it's not new math, it's not 'new economy,' " said Mike McGuire, director of media research at GartnerG2, the business strategy research group of Gartner Inc. "If people want this thing, they will pay a reasonable price for it - if it is reasonably priced and convenient, and it works when you hit 'play.' "
- The idea of small payments appeals to people on all sides of the debate. "Cheap is really the antidote to 'free with a lot of strings attached,' " said [Alan] Davidson [CDT].
Though the ensuing discussion (assembled much like a blog post; I've noticed that Schwartz's articles seem to be moving in this direction) between Jonathan Zittrain, Steve Jobs, Joe Esposito of Time Warner music, Davidson and McGuire put together by Schwartz circles the pricing and implementation issue, that, if solved, will let the music flow.
Now doesn't that really make you wonder about Vivendi's thoughts on the information business? Why not keep the MP3.com database around as we get closer to solving the micropayment and online music sales issues. I mean, identifying the problem is the first step to finding a solution, no?
ps, /. on decoding the algorithm to predict hit songs. There's even a scaled down version for aspiring song writers. This /. comment gives the algorithm for getting a modded +5 comment there. Lather rince repeat, rip mix spurn:
- SCO RULES!
Bill Gates is your friend.
I enjoy RFID!
I can't get enough of that Jon Katz!
Linux is for little girls.
Look at my newest casemod! I put a flashlight in there!
Hilary Rosen is a super-fox!
I peed in your coffee.
The Simpsons/Matrix/Starwars/LordoftheRings totally sucks.
DRM is the answer to everything!
I just patented food
So say Allison Hoffman and Tim Reiterman/LATimes. Voting machines purchased between now and 2006 will be replace or modified, and those after will be required to have it.
Derek Slater prevails over a one note policy; one note because it appears to have been written only with infringement in mind, where the infringment was about users taking copyrighted materials via P2P file sharing, and the materials were for entertainment, and not civic in meaning. While the policy does mention fair use, it does not mention any kind of circumstance like the Diebold memos. After posting the Diebold memos and receiving a C&D notice, Derek challenged the policy that his activitism would count as one strike.
- Today, Harvard's general counsel officially ruled that the University would not count my posting as an infringement. My record and Internet access are safe.
Derek suggests that the appeals process be reviewed and changed, to teach students about what this all means, and he intends to keep pushing for that. I must say I'm constantly amazed by Derek. He is inspiring.
ps, We may have to add cat_Slater, we've been mentioning him so much lately.
- "Diebold has been using coercive legal claims to intimidate internet service providers and even universities to shut down websites with links to its memos and remove the memo content. Under copyright laws, however, universities are exempt, and posting links to the memos is not considered a violation of the law. By abusing the Digital Millennium Copyright Act, Diebold has intimidated numerous internet service providers to comply with its requests. The damage is two-fold: 1) limiting the public's information about the security of its voting machines, and 2) expanding corporate control over our most free medium of expression, the Internet.
Now there's a stand on keeping the internet free.
As CEO of Sony USA, he's feeling the full effects of digital disruption in the media biz, according to Tina Brown/WDCPost.
- "Between the combination of more information than you can possibly cope with and global markets stealing your employees and price erosion happening faster than you can develop new products, you can't tell a mask from a reality." -Stringer
Grasping at broadcast flags:
- In the TV world, executives are in denial about eyeballs swiveling to cable, Internet and video games. They're blaming Nielsen, the Delphic oracle of the ratings, for mislaying a chunk of young Hispanic men in the abysmal ratings for the fall season.
Note that Valenti has said there may be new release movies available over the internet by 2005.
- Movie executives and producers are in a funk about working in a medium that's a blip on the radar screens of the multinational corporations that own the studios. "The decision-making process is so diffused among layers, power in Hollywood these days is a hologram," says Brian Grazer, producer of hits such as "A Beautiful Mind" as well as co-chairman of Imagine Entertainment, whose corporate partner, Universal, has had three overlords in three years and now has to learn a new cast of characters at General Electric's NBC.
Denial, anger, bargaining, depression, acceptance. Where are you?
- Music executives feel like the dinosaurs after the asteroid impact. Their piracy problem is so intractable they're almost nostalgic for Napster. They still can't figure out how to fight illegal downloading without making enemies of the kids who ought to be their best customers.
Barry Diller is one of the few who seems to have accepted this and is trying to work with the properties of digital media, not against them:
- "The times are so radical it produces insecurity," said Barry Diller, who has mostly exited the old media terrain to build his InterActiveCorp empire. "No one has yet grasped the consequences of going from analog life to digital life. It piles on incredible pressure. It's not about growing new plumage any more. It's about growing gills."
Brown's conclusion: power is a hologram.MORE...
Actually Linkerator is my name for it, but I love it! (Linkerator reminds me of Willy Wonka.) NY Times links die after 7 days, but if you get a userland link, it will last forever, maybe -- we're taking that on faith for now. Though the userland links are only up on that site for a day or so until they are replaced with the next set of links. And saving links through your aggregator isn't always feasible. But Aaron Schwartz has made the most cool tool at his latest links site: The New York Times Link Generator. Basically, by putting in a regular NYT link from anytime after June 2003, his tool will generate a link (though I tried an AP article on the NYT site from last week and was out of luck, it seems to only work for NYT articles). But hey, it's the greatest thing since sliced cinnimon brioche dipped in egg mixed with cognac, sauted and served with maple syrup!
The bIPlog thanks you from the bottom of our hearts!
- The Aimster case's facts form a bad foundation for a reevaluation of Sony in the P2P era. At best, Aimster is a somewhat centralized service, not wholly unlike Napster, and has thus far had trouble proving any non-infringing uses. At worst, Aimster actively encouraged infringement on its fully centralized P2P service. Its tutorial's screenshots showed how to download copyright holder's content specifically, and the centrally-controlled Club Aimster service helped automate acquisition of copyrighted works on Aimster. The record industry alleges that John Deep has boasted that Aimster is "Napster squared."
- [...] With that in mind, why give the Court a chance to write an overbroad opinion? We'd be better off with the Court evaluating Grokster and Morpheus, a much more similar situation to Sony. The Court doesn't like protecting shady characters and, if the Court adopts my "worst case" interpretation, it will be happy to rule against Deep and anyone who seems remotely like him. The Court will treat all P2P as a tool of infringement, rather than just a tool.
- [...]Let's not put Sony on the line here by bringing Aimster's case before the Supreme Court. To give Sony, P2P, and Internet innovation their best chance to survive, we should wait to bring the best possible defendant before the Court. If you must support this case, please do so only by focusing on the proper standard of review, as the EFF did its appeals amicus.
When I got the email this morning from Declan McCullah, I thought it was odd, but didn't have the time to look at this today, nor could I have done as good a job as Derek in reply.
Dave Winer wrote yesterday about an issue for the 2004 election: Keeping the Internet free from Media Companies. He asked that Clark and Dean consider a plan to keep the Internet free from interference from the entertainment industry. Two reasons, he says, as he is a part of a constituency that cares about these issues, and that it would signal that a candidate was not beholden to media companies, both in the sense of locking down the future (I assume he means things like copyright, as well as laws that regulate the internet for special interests) and of having the media try to control channels they don't yet own (I assume here he means the development of new digital distribution channels that either are just getting started or haven't yet been invented, or technologies they try to lock out or control, like the consumer electronics industry developments that must now be approved by the copyright industry with respect to the Broadcast Flag -- See Zoe Lofgren's editorial today on these new restrictions on innovation by the FCC).
- Maybe his [Dave's] idea is, "Let Clark and Dean work it out. They're smart enough."
- The Internet is different from the phone network and radio and broadcast television in important ways... [like] "many to many" communication as opposed to the "one to many" communication of broadcast television. A student, an independent software developer, or a small high-tech company can come up with an idea for a new application, protocol, or kind of content. If enough people find it useful or worthwhile, this idea can spread like wildfire. Even as the Internet evolves, it is important to ensure that it continues to provide an open platform for rapid and decentralized innovation, and for the exchange of ideas.
Donna Wentworth links to Dan Gillmor who says:
- But Dave has framed the problem well. Keeping Hollywood's influence from wrecking the Net would, by extension, help solve the copyright disaster that's been building in America for decades.
Jeff Jarvis' not so sure: he's a big media guy, a blogger, and says,
- Dave, I just spent last weekend in big rooms filled with big media and, believe me, I saw little cause for alarm.
My thought: Maybe Dave didn't specify the exact problem, and he is very much in a partisan position (as he admits) with technology, but he does make a good point. Locking down the internet with DRM, like the just adopted BF regulations, as well as using the DMCA for all sorts of ridiculous anticompetitive and otherwise destructive stuff (think Chamberlain v. Skylink over garage door openers, Lexmark and printer cartridges, Diebold and voting software memos) that incumbents love to use to maintain their positions, and you can see why he cares about this. It's not that I think incumbents all should be undermined, but I disagree with an Internet that only protects them, and makes it hard for innovators to develop the digital technologies that will shift everything and create so much value, though maybe for a mix of incumbents and innovators. It's understandable that they are scared, because they have a lot to lose, but we all are participants in the internet, and there is a public good in keeping it open and free.
Lock the internet up, lock content down, and I think it will be less than 20 years before our closed internet loses to the free internet, still existing in the rest of the world, leading to the loss of US leadership and competitiveness in technology, content and innovation. Seems counterintuitive, and in the short term yes, protectionism is beneficial, but long term, it will hurt us badly.
But I'm not so sure this is something we can address in a presidential election, and Seth may be right, maybe this is an unrealistic discussion. But my hope is that as we forge further into the information economy, we will be able to address issues like this in a national forum, that people will understand digital issues enough that they will want to hear what candidates have to say about intellectual property, media, digital technologies and information flowing on the internet, because it means their jobs (and health insurance), their intellectual freedom and entertainment. But I don't think it will happen until the public asks for it. And many more people must become digitally literate before that happens.
- Karen Coyle: The Technology of Copyright: Digital Rights Management
The video of the live lecture will available from this page on Wednesday, November 19th from 10:00am -12:00 noon EST (in RealPlayer format).
(Is it just me, or there irony in a lecture about DRM, digital media and technological controls webcast on a proprietary format?)MORE...
Just imagine if you could do it for movies, games, photography and books. That kind of compulsory licensing would be awesome.
From Wired. It's simple, but useful (thanks to Denise for the link).
Update: Chad Capellman has a recording of Sullivan and some of the panels that were scheduled at the same time, in case you missed them or were unable to attend at all.
Conference Blog - with some very gracious notes from Andrew Sullivan, and others.
Everything I mention below may seem obvious. I've known it for a long time, but still having just gone to a bunch of talks, met with media companies and consultants, I was amazed at how little of this is out there in any real way for people in that business. So my thoughts are below, however helpful that might be. Maybe not.
The thing is, digital media disintermediates power. And all these people, nice, well educated, important, powerful people, media people, don't want that to happen. Heck, people in power in every other kind of business don't want it to happen either, and yet it is. So the conferences I've been to the last two weeks, none of which have offered anything I didn't already know between all five of them, in various slices of the media business from micropayments to big media to social networks and media, to online news, have all had rooms full of people trying not to acknowledge the coming or present disintermediation of their own power. Yes, they acknowledge P2P or the many many digital media choices or blogs or Tivo or targeted ads or friendster (really all of these things are just tools/offerings, right, so if not these it would be something else in the digital realm) are things they need to embrace in order to move with the times, the Internet, the audience's new found power. But they are not willing to open themselves up to the properties of digital media.
Traditional or analog media cannot be shoveled straight, digitized, and it cannot be made interactive, multimedia style with a lovely poll asking - defining really by the choices given - readers for their "opinions" via check boxes, the bottom line is, it can't be controlled. Whether that control comes in the form of copyright or bundling cable or believing that the producers/editors/shapers/makers of content know more than their audiences. The fact is, you audience is now your colleague. The other night at dinner, with a large table of folks from all over, I challenged a bit, maybe too much, a senior VP at CNN. I have to admit, I think I offended him because of my directness. I really was at the end of a frustrating conference full of people who don't understand what digital media is, why it's different, and a lot of that has to do with the way they use media and technology. They use it like old style news people, which is fine, except that technology is a thing you use, not theorize about, and so describing why some digital tool is different, changes everything, makes life go perpendicularly to the way it used to in the analog, is a bit theoretical. The fact is, you have to use it, a lot. You have to see it for yourself, listen to others, see it from your users point of view. Or you don't get it. So the CNN guy seemed just for a moment like he was going to cry when I suggested that cable customers might only, ONLY, want say, HBO, and not really care to take anything else. And they may never tell you why, or they may tell you lots, but they will go elsewhere if you don't give it up. Cable may become granular. Or the answer from the audience/users may be things that are not legal, or fair, it may not support the notion that the creators of news believe they know what's good for the audience, and it may not support good content in the old traditional way. It's not a threat, it's just what we already know to be real, whatever you think of as right or wrong, correct between content creators/copyright holders and users. But I do feel badly now, because frankly, as frustrated as I was at all these things, I managed to be gracious until this last one, at dinner, with this guy. I wasn't mean or obnoxious about it, but I said what I thought was true and I think he probably regrets the conversation. Because it just doesn't go with the way these companies think. I had just had it, I guess.
So, the lesson I guess is that people really are deeply in denial, with a few bargainers and angry folks in the mix. There are, though, an extremely small number willing to go out into the wilderness and really discover something unfathomable that might destroy the business model. But if you don't work with P2P, your audience, and the Internet, it will kill you. And any attempts to control the network, all the networks you work in, associate with, consumption networks, media networks, etc., will go around you if you don't work with them. And controls include IP regimes, network barriers, frictions like DRM and payment mechanisms, overly-intrusive advertising or even advertising that doesn't apply to a specific viewer and so is not content of value. You can either make the digital work, or be something everyone else avoids. But the days of one to many, controlling, bundled, competitive, stove-pipe media are over.
Looks like a PBS set, flower arrangement, water, big easy chairs.
Moderator: Bruce Koon, ONA president and Executive News Editor, Knight Ridder Digital
Leonard Apcar, Editor in Chief, The New York Times on the Web
Richard Deverell, Head of News Interactive, BBC News
Esther Dyson, Chairman, Edventure Holdings Inc.
Mitch Gelman, Senior Vice President and Executive Producer of CNN.com
Ruth Gersh, Editorial Director, AP Digital
Retha Hill, Vice President for Content, BET.com
Dean Wright, Vice President and Editor in Chief, MSNBC.com
See more below.MORE...
Andrew Sullivan gave the lunch keynote. Hard to blog because we were still eating and the room was packed, so getting out the laptop was not a good idea, there was no room. So below under More are my hand written notes. The rest is updated periodically... as I attend panels.
Update: while I was listening to Sullivan, I kept having the feeling that while everything he was saying is exactly what I've experienced here (not the 1.9 million readers but the qualities of this medium, the interactions and relationships with other bloggers, and the value of writing daily), and it was the only time, other than listening to Rob Curley or Jeff Jarvis, where I felt people were expressing some understanding of digital media, and trying to work with it, in energetic, fun, creative ways instead of fighting it, scared and from a position where they don't use the Internet so much and so they don't understand. Sullivan is a great guy, really a lovely person, interesting and articulate, and really humbled by his readers and the attention and hits he receives on his blog. It felt liberating to listen to his talk, after the past two weeks of fighting my urge to yell that media people just don't get what the Internet/digital media is about.
Also, Jeff Jarvis on Andrew Sullivan.
See below also for some on the panel on Flogging the blogs: Debating best practices. Ken Sands, Managing editor of online and new media, The Spokesman-Review moderated and it had these people on it: Denise Polverine, Editor-in-Chief, Cleveland.com, Sheila Lennon, Features & Interactive Producer, projo.com, Tom Regan, Associate Editor, csmonitor.com, Jeff Jarvis, President & creative director, Advance.net.
Jeff notes on his blog that he probably came across as a lunatic, but in fact he was articulate, talked about a lot of the issues he's discussed on his blog in the past 10 days about blogging and media, that are very good useful points. I'm not sure how many in the audience got it, because they bring all of their often traditional media experience that goes against these counterintuitive ideas. But it was still useful and concise and very good. The others were good too, but not necessarily so packed with ideas and tips. Read the notes below the Sullivan notes.MORE...
I'm attending the Online News Association conference today. Below are notes from yesterday, which I will continue filling in today as I attend panels. This isn't exactly bIPlog territory, but I need to put this somewhere. There are a few things here and there that hit the intersection of IP, digital media and digital distribution, privacy and security, but not much.
Note to the conference organizers: concurrant panels are a drag. If information is worth presenting, then don't make us choose. I want to attend two panels this afternoon, occuring at the same time. They are the reason I came here, in terms of the formal content.
Tidbits: Mark Fiore is really cool.
As is Len Apcar who is head of NYTimes Digital, with whom I had a great discussion about blogging. I explained to him that viewers know that blogs are different than regular journalism, that it's about putting out information more informally, but fairly and accurately, and if something is amiss, doing a new entry to correct, but it's not as much about impartiality. The audience wants to see what their reporters with unique perspectives and information that isn't appropriate for regular reporting know about. It doesn't have to be opinion, though we chatted about Dan Gillmor and the differences between his column and blog. He said that he'd shifted a bit since bloggercon, and was considering topic blogs, like one for opera, where they might have someone that is an expert, but that doesn't necessarily work for them, to point people to interesting links, talk about issues in the opera world, were really interested readers might submit additional links and information. But he's still working it out. One thing, he was surprised that I had listened to the bloggercon sessions, that they were webcast (I couldn't attend though I wished I was there...).MORE...
- Under Chamberlain's theory, any customer who loses his or her Chamberlain transmitter, but manages to operate the opener either with a non-Chamberlain transmitter or by some other means of circumventing the rolling code, has violated the DMCA. In this court's view, the statute does not require such a conclusion. GDO transmitters are similar to television remote controls in that consumers of both products may need to replace them at some point due to damage or loss, and may program them to work with other devices manufactured by different companies. In both cases, consumers have a reasonable expectation that they can replace the original product with a competing, universal product without violating federal law.
BIPlog has brought this up before. This is the case where Skylink made a third party garage door opening transmitter (you know, the little dark gray plastic thingy with a button that you keep in your car) that worked with Chamberlain's garage door opener (GDO, and it's the mechanism in your garage that actually moves the door open), after which Chamberlain asserted this violated the DMCA. Chamberlain uses a rolling code mechanism (meant to deter thieves) to make their GDO work with their own garage door-opening transmitter. Skylink makes many different transmitters that work with several manufacturers' GDOs. In this case Chamberlain said that Skylink's accessing of the rolling code was in violation of the DMCA anti-circumvention provisions.
Last night, the Blackhawks played the Calgary Flames. Chicago played lousy, and the food isn't nearly as good as PacBell Park which has sushi and garlic fries, though our waiter at the United Center was awfully cute... but it was a good time.
However, there was one disconcerting moment in digital privacy. The giant center media screens, which are so exciting you tend to watch them more than the rink below (we were in the club level, whatever that means, and so we kind of high up looking down), were straight across. Early on in the game, the announcer and the big flashing screen lights asked people to text message to some phone number, in order to just enter a drawing to win something (I can't even remember it, it was so insignificant). And I thought, well, what are you going to do with my phone number, my information, this date and time stamp, this message that you have recorded from me? Would I really give you this (and possibly more, if you have access to databases to cross my info to put more of the digital me together for a better audience profile) information, in exchange for the chance to win something, with no assurances that what I'm intending the information will be used for will be it? That this personal information won't be sold, traded, aggregated, given to the government or some unscrupulous company wanting to push ads out to phones? Who's taking the info, how do I trust you, what are you like?
For, you know, right after you get the gsm version of the Treo 600 in the mail (just out! ..and why did they make us wait so long after the cdma version has been out a month???). Course, you'll be lucky to find another bluetooth phone in the county to do it (we barely even have any in the US; see how standards issues really cramp your otherwise goovy style?). But hey, "I like your tie... it's soooo blue."MORE...
Annalee Newitz/Salon says Don't look now, but the dean is watching about campus surveillance of internet activities.
- At the University of California at Berkeley, the everyday Web-surfing habits of students are regularly watched and recorded. Berkeley's Systems and Network Security group uses a program called BRO -- named after the infamous fascist icon from George Orwell's "1984" -- that keeps logs of every IP address students visit on the Internet from the campus network.
- Cliff Frost, UC-Berkeley's director of communication and network services, says that "this practice is under review right now," because the campus community feels it interferes with academic freedom. He expects that the university will continue to keep logs but will discard them after a month or two. "I'd love to keep that data forever," he adds, "if there weren't the threats of subpoenas for vile purposes."
- He is referring partly to recent actions by the Recording Industry Association of America, which has subpoenaed universities for the names of students allegedly engaging in music piracy. Techs must comb through saved logs for personal information to fulfill the subpoenas' demands. Some schools, including MIT, have refused to hand over the information by arguing that it is protected under the Family Educational Rights and Privacy Act. FERPA is designed to stop students' personal data from being handed over to third parties, and no one has yet challenged the use of FERPA in these copyright cases.
- But there is a little-discussed section of the USA-PATRIOT Act that renders FERPA completely useless when federal officials subpoena personal student information for terrorism-related investigations. Not only do these federal subpoenas bypass FERPA, but the people served are not permitted to discuss them with anybody.
The article starts with an example at Raytheon at the University of New Hampshire where students were planning a protest, and the entity they were protesting pulled out of a presentation at the last minute, after the VP of student affairs got wind of the student plans. Apparently, this VP is not on the email list, but the list was being covertly monitored. Accessing the Internet on campus means that everything done is watched. This is not just for security (Patriot Act) purposes, but also to monitor illicit file sharing and other copyright violating activities. However, the privacy implications are huge, and because privacy protections are spotty or non-existent, this kind of surveillance is possible without notification, other than that buried in the various lengthy policies one clicks through upon setting up an account, or by going back later to view the information. But there is nothing explicit about the surveillance and therefore, users are surprised when action based on the surveillance is taken by schools.
Also, here is some information on BRO:
- What about privacy
- One of the greatest concerns about systems like this is the fact that potentially confidential data may be collected and examined by the system. As mentioned above, Bro is an automated system. So when we say Bro examines data, that data is not selected or seen by people. However, in order to be able to investigate suspicious activity, some data is logged and security personnel may examine that data. The data may include complete transcripts of login sessions, any files transferred over the network, email messages, etc.
- Obviously, this data is very sensitive and requires the highest level of protection. Access is restricted by the "Privacy and Confidentiality" sections of the University of California Electronic Communications Policy. This policy requires that the campus annually report on data that is accessed without users' consent. For the most part, this data is never seen by anyone other than security personnel if it's seen at all. Typically this data never leaves the systems where it's collected, which are physically and electronically secured. However, if an attack is confirmed, relevant data may be turned over to the managers of the affected systems as well as outside authorities and possibly law enforcement officials. Occasionally, aggregate data may be given to nonsecurity personnel for network and infrastructure planning. Of course, such aggregate data would be stripped of any personally identifiable content.
This document, in the naming, says it is from Winter 2001, but there isn't anything in the html code confirming this. Also, the description of the system emphasizes that BRO is meant to detect outside intrusions to the network, not internal activities of users. However, the Wired article indicates otherwise, as those in the Network department confirm in the quotes above, but they say the retention policy for logs is under review right now and may be changed so that logs over a month old are discarded in order to protect privacy.
UPDATE: Tracy Mitrano/EDUCAUSE have Civil Privacy and National Security Legislation: A Three-Dimensional View (pdf) (or htm)
- It's too bad that Andrea couldn't get some quotes from the other Berkeley students participating in this action as I'm sure they have valuable things to say: Parker Thompson, Ping Yee and Sean Savage. This action achieved it's goals of getting the documents out there and in to the hands of investigators solely because so many students weighed the issues (copyright v. freedom of speech, privacy, etc.) and were willing to take the risks involved with posting the documents.
Kim Zetter/Wired with E-Vote Firm's Bill Comes Due says that the CA Secretary of State's office is forcing Diebold to pay for an audit, because they installed uncertified software code into CA voting machines, in order to win certification for a new model. According to Zetter, this is due to student actions to get this information out, and the CA SoS offices reading some of these memos and taking action:
- Release notes for the 1.18.17 version that were posted on the Web recently with other internal Diebold correspondence, indicate that several critical fixes were made to the software in addition to installing several new features.
If this is true, students at Swarthmore, followed by students at many other institutions including those above at Berkeley, in spreading the Diebold memos around, have accomplished the goal of causing those with review power over Diebold systems to take another look at Diebold's work. Let's hope the review really scrutinizes this company's activities and that EFF and OPG's suit against Diebold brings about the conclusion that using the DMCA to suppress speech necessary to the functioning of the democracy is wrong. Even if the review doesn't cause the state to discontinue using Diebold systems or require severe changes (and I'm sure the pressure is enormous TO certify), the fact is the memos raise disturbing issues and the review is very necessary. If companies providing services of this sort feel that they can quash documents out on the Internet by using the DMCA, if Diebold succeeds on this point, we and our democracy will be the poorer for it.
Also note that Verified Voting.org has a petition in support of a bill introduced by Representative Rush Holt of New Jersey requiring a voter-verifiable paper trail. Consider looking over the bill and signing the petition. Also Parker Thompson notes that Greg Palast of the BBC spoke at Berkeley and in the Q&A, received over 200 note card questions, where 25% asked about black box voting issues.
...in the Crimson. Derek posted the Diebold memos on his Harvard account website, wrote about it on his blog, and received a C&D on October 31, 2003. Harvard rules say he gets two chances for copyright violation, before he loses his account. Diebold served the C&D under the DMCA rules, maintaining that the memos are copyright protected, and Harvard responded by disabling the documents.
- Derek: "These documents are potentially important to our democracy and the integrity of our voting system," he said. "It's necessary to spur debate."
- [John Palfrey of the Berkman Center] said that the case for copyright infringement is hardly airtight against Slater, an affiliate of the Berkman Center.
- The DMCA uses four criteria to decide whether copyrighted material can be made freely available, Palfrey said. These include the purpose of the infringement, the nature of the material, the amount of material used and the potential effect on the documents' market, he said.
- Palfrey said that Slater's case against claims of copyright infringement are bolstered because the documents were used in an academic and not a commercial manner and they were factual -- not creative -- works. He added that Slater did not damage their market value because Diebold never intended to sell the documents.
- "Derek has a very strong fair-use case," Palfrey said. "I think the University should be, and is, open to students asserting their rights under the law."
A hearing will decide the matter of whether the policy of copyright violations applies to this kind of speech.
UPDATE: Derek has noted in the comments that even though the article said there would be an upcoming hearing, in fact there isn't one scheduled. Also, the article erred in stating that Harvard sent the C&D to him. In fact it was Diebold. And above, in the quote about the four criteria and the DMCA, instead there are four factors (which were used before the DMCA was passed) for determining fair use of copyrighted works.
Last night in Tribeca there was a dance party for "Tim Davis, a young NYC artist who got sued by the RIAA for downloading. He had a remarkably small number of songs at issue, yet because he also teaches ONE photography class at the college level as an adjunct "he should have known better." As such, Tim's being held more accountable than other defendants." -Jay Flemma/Pho List.
Good party, at the art studio he shares with four other artists. Great music. Funk. Real old fashioned Technics 1200 turntables with real old-fashioned 45s. The highlight was the terrific dance party DJ'd by Bambouche of the Vanguard Squad. About 7 of us went, and it was really fun. Great dancing. Interesting mix of people. Tim's cool, and if people can, send him a donation. His "Free Timmy" T-Shirts (black, with hot pink writing) are well worth the $25, which he sold last night to raise money, and can probably be had via email at info at davistim.com.
UPDATE 11/10/03: Tim's website has information for making donations. He's had to pay $10,000 to the RIAA for 300 songs, much more per song than the rest of the people settling for more like $2-3k, for over a 1000 songs, and he doesn't have a lot of money.
Updated 12/5/03. Jay Flemma writes that the payment was less, (the 10k is what Tim says he's "in the hole for") "call it around 7K and 'well under 800 songs...'." Still, Tim's had a tough time and it would be nice if folks wanted to buy a t-shirt or donate to his fund.
Melanie Warner/NYTimes report on Machine Politics in the Digital Age, about Walden W. O'Dell, the chief executive of Diebold Inc., who:
- sat down at his computer to compose a letter inviting 100 wealthy and politically inclined friends to a Republican Party fund-raiser, to be held at his home in a suburb of Columbus, Ohio. "I am committed to helping Ohio deliver its electoral votes to the president next year," wrote Mr. O'Dell, whose company is based in Canton, Ohio.
It would make sense for outside contractor's providing voting systems and software to be held to the same standards as federal employees, who are restricted from involvement in political activities. It just seems as though those who program, control and maintain the systems should maintain an impartial stance.
This issue has been addressed here, and elsewhere, before, regarding compulsory licensing, in a theoretical way, because we don't have compulsory licensing currently. But those who are forced to pay under a compulsory licensing might object, as these students have to the new Penn State system:
- PENN STATE STUDENTS SNUB NAPSTER DEAL
Some Penn State University students are protesting their college's new deal with the Napster music service, saying the deal is not an appropriate use of funds they are required to pay. The new service was announced yesterday with considerable fanfare, touted by university officials and the company as a way to provide students with a legal alternative to downloading music illegally from Kazaa or other file-swapping networks.
From John Borland/C|Net. Although he does point out that the $160 per semester fee for technology services, already in place, will cover this new service with no increase in fees. But students are complaining because some part of that fee will go to Napster and they don't want to participate. It's what had been predicted with compulsory licensing, and now that this form of CL is in the works, we need to think carefully about these objections and other aspects of CLs for the full Internet populace. This might be a very interesting test case as to what would happen if CL's were adopted across the Internet.
Also, check out Derek Slater's More Crummy Reporting on Penn State's Music Service, What Price is Wrong and My Letter to Pho on PSU/Napster. Frank Field notes the /. discussion on this issue, where it was pointed out that Barry Robinson, Senior Counsel for Corporate Affairs for the Recording Industry Association of America, Inc., is on the PSU board.
Napster PR here. The system as defined by them:
* Students living in residence halls at a dozen Penn State campuses will be able to participate initially.
* Unlimited streaming of music files will be available from Napster's inventory of more than 500,000 songs.
* Tethered downloading is included at no additional charge. This means a student can download and keep the music files on up to three personal computers. These songs can be burned to CDs or transferred to portable devices if purchased for 99 cents each.
Looks interesting. Apparently, they are also looking at deals with other schools. I'm swamped today and so can't really get into this or the patent issues with schools streaming content. But I'll try later.
Read about it here. Eff is representing an ISP, the Online Policy Group (OPG), and two Swarthmore students, Nelson Pavlosky and Luke Smith in a suit against Diebold (response pdf), who has been challenging the right to post copyrighted internal memos that reveal Diebold touchscreen voting system problems. The Judge, Jeremy Fogel, of the federal district court in San Jose will hear the OPG v. Diebold (Case Number C-03-04913 JF) on November 17, 2003.
Oh, and speaking of free speech on campuses, John Leo/Town Hall have this on the Sheldon awards for university presidents who manage to quash speech (my fav: opposing intellectual diversity with the excuse that it would threaten academic freedom.) While Diebold is outside of the university system, they've certainly rivaled and exceeded the examples given in the article. Maybe they could make a special category of Sheldons, sort of a Best Foreign Film thing, for outsiders who really achieve über status in the field. It would be a Lifetime Achievement Award for Managing to Kill Speech Across Many Campuses, by an outside company, using copyright as your trump card. It could have a little one-eyed jack card, with a smile, teeth glinting with a dollar sign, golden copyright symbols floating around Jack's head, being held by the spineless Sheldon statue....
Update 110703: Wired has this: Suspect Code Used in State Votes
... according to Jonathan Salant/AP.
By July 1, 2005, digital TV receivers have to recognize the BF signal.
- FCC Chairman Michael Powell said his agency was taking "an important step toward preserving the viability of free over-the-air television."
I'm confused. How will this order (pdf) keep over-the-air television viable? Won't this require everyone to have cable or satellite? Otherwise, record over the analog VCR, record to digital on your video camera, and voila? This will only stop consumers from regular uses they currently enjoy, but the pirates won't be stopped.
- The deadline would be in advance of the congressionally mandated goal of 2007 for all TV broadcasts to switch to a digital format, which uses computer language, from the current analog format, which uses radio signals sent as waves. After the switchover, consumers who don't subscribe to a cable or satellite service would need digital tuners, either inside a TV or in a set-top box.
Digital tuners go for around $200, HDTV for around $750.
- "We would like to be talking about how to best protect over-the-air content rather than rush 1,000 miles an hour to approve a solution that isn't going to work with technology we haven't seen for a problem we don't yet have," said Chris Murray, legislative counsel for Consumers Union, the publisher of Consumer Reports magazine.
I guess we did want a solution that doesn't work using an unseen technology for a problem we don't yet have, that will cost consumers a lot of money, to satisfy incumbent content owners who are insecure and have little vision. My mistake.
Update 110603: Ernie Miller has found what looks like a loophole in the BF FCC order, Ed Felten has this: The Broadcast Flag, and Threat Model Confusion and Seth Finkelstein has this: Broadcast Flag - desecration, (with this choice quote: "Do not remove this flag under penalty of law.")
Today at the Micropayments Conference at the Harvard Club, hosted by Peppercoin, an MP company (named after the smallest possible coin payment in England - quarter penny=farthing?), digital content and payment systems (see this NYTimes article describing generally micropayments and these companies) were the order of the day.
On the Digital Music panel: David Card (blog) of Jupiter Research moderated, and panelists included Richard Burgess of Smithsonian Folkways, Brian Cullinan of Sony, David Goldberg of Yahoo and Howie Singer, CTO of Warner.
Notable exchange at the end of that panel:
- Steven Levy/Newsweek (from the Audience): Is there a standardized DRM model?
- Singer/Warner: For rules, or an expression language? Is there a marketplace solution? ITunes appeared successful, with rules on the PC -- and 3 m downloads. Not yet known.
- Cullinan/Sony: Precedent? For DRM? Don't know until things play out, but there is no market benchmark.
- Levy/Newsweek: But what will it take, what will keep things going at this level with DRM?
- Cullinan/Sony: Deals are only as good as the marketplace will bear, and the next deal is only as good as set up; every company is different, can't speak for othersÂ… but there is a least common denominator problem with the labels, every label wants the most restrictive rule, although Universal wants no rules and they are adamant, and upset that they can't sell their stuff through iTunes with this least restrictive DRM but instead have to go with the lowest common denominator of iTunes which is set by the most restrictive models.
- The future? We won't have the rules we have today, because even now, if you burn something once, you can rip it and it's analog, what's the point of DRM? So songs eventually will be sold in the marketplace, unrestricted. There is no reason to restrict people to give less than what they have with other media, with analog or digital.
The conference covered a variety of topics from the technical, to the theoretical, looking at content, a couple of success stories now on the web, subscriptions verses downloads, granular content verses bundled, and mostly asking a lot of questions about media, the internet, and what all the considerations are regarding consumers, media companies, copyright and money. Interesting day with interesting people. Though I did hear that a couple of the journalists were unhappy due to the lack of soundbites. But these are complicated issues and it takes time to learn the intricacies and figure out the solutions, so I guess at this stage there is too much confusion over MPs for soundbites. However, it was a great opportunity to learn what people are doing and thinking about on these issues. And there were some nuggets that were very useful.
BTW, the Harvard Club is nice, surprisingly good food too. Makes you almost want to go to Harvard, just so you can hang out there.
EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School are seeking a court order against Diebold. Diebold, the maker of an eVoting system that many a Registrar have purchased, including our own Alameda County, has, as noted here before, lost control of some internal memos (someone hacked into get them). Diebold has been serving C&D's (Swarthmore, as well as one here at Berkeley, and Derek Slater/Harvard received one) to ISP's of hosters of the memos, and students have been protesting, because they, we, believe Diebold is in the wrong in trying to suppress information about security flaws in the eVoting system. The memos are all over now, and on file sharing networks. Diebold has even claimed DMCA copyright violations for those linking to the memos. And finally, after two+ weeks, big media is paying attention.
Update: Declan McCullagh/C|Net: Students buck DMCA threat. Also, Parker Thompson has started blogging with Minfesto. He's one of the students posting Diebold memos, and has this: Brittney Spears Don't Vote. Parker also writes that California is reconsidering Diebold's touch screen system. In particular, check out this CA Task Force Report (pdf) on the systems. Glad to have you in the blogosphere, PT!
Update 110403: Siva Vaidhyanathan has this on Diebold: voting problems in Houston, and a write up on Brian Lehrer's public radio story. He says that the story was poorly done, with a National Journal reporter as the expert interviewed. I just read the CNN/AP article: California delays certification of some electronic voting machines, and found it missed the context of the past few weeks, where students at various schools have been mirroring the Diebold memos and keeping this issue out front, at some personal risk, which I think has helped push questions of Diebold's security. When media point out that younger readers don't read papers anymore, and then I see this, I think, why should younger readers read the paper, when their involvement it totally left out, or when it is included it's often dismissive in tone of those covered (I do know why they should read papers, but still, you get my point). This is not always true, and certainly Declan's article is not written this way. But really, if you want readers of a certain demographic, think about including them, because they are apart of the story!
Chris Nelson/NYTimes have a piece on the RIAA's recent reliance on boomers as continued customers, because they do not do much online downloading of music, and do more traditional (read: retail store purchases) buying of music (read: more expensive CDs of artists over 40). So retailers and the record companies are catering to these interests. Though it does make me think that retail music selling is becoming a niche market for those less technically adept, and less hip, maybe, compared to the 18-24 market. The music industry sees the boomer group as underserved, and they probably are. But this is also a way to hold onto a business model that is slipping into the past, along with the industrial era, like the horse and buggy market did with the offering of the horseless carriage. It'll work for a while, but at a certain point, it's going to be very, very niche.
And in the meantime, will the recording industry get hip to the fact that they may no longer be in the music unit biz (a single or a cd), but rather are in the biz of selling an audio information experience over as many distribution mechanisms as exist, catering to multiple age groups with a wild range of interests, with greater expectations for flexibility, quality and breadth of selection? We've gotten a taste of the heavenly jukebox, and no matter how retro they go, we're not gonna forget it.
- Acting on legal counsel, the Swarthmore administration has advised students on the process for filing under the copyright law a "counter-notification" against Diebold's take-down demand. In addition, the administration has alerted students that it is defensible on fair-use and free-speech grounds to use their web sites to describe the content of the memos they have seen and their implications for American democracy, and to use their sites to inform interested members of the public that the memos are available at sites not associated with Swarthmore.
Also, Wired News chronicles the eVoting issue with Diebold, and the Swarthmore and other University student action, including UCB students.
The RIAA has filed 80 more lawsuits against those who share (for others to download) files. This time, though, the RIAA started by notifiying 204 people first, and then 124 decided to settle out of court. The remaining 80 were then sued.
Also, MIT had to "temporarily" shut down the innovative new analog music via cable system announced last Monday. The makers of the system, called LAMP for Library Access to Music, had negotiated licenses through Loudeye, but the Harry Fox agency who was part of the negotiated licenses said the agreement wasn't complete, so MIT closed it down until they figure out the licensing situation.
Later 11/02/03: Frank Field points here:
- While the Slashdot discussion is the usual combination of interesting thought interspersed with uninformed drivel, this comment speaks to the real problem I see at MIT:
to this /. comment:
- forget the loopholes (Score:5, Interesting)
by bonds (701580) on Saturday November 01, @07:31PM (#7368653)
- We don't need newer and more creative ways to sidestep our poorly conceived IP laws, we need new laws.
- I for one would be grateful if places with clout, like MIT, would spend their resources advocating for better policy rather than engaging in legal contortions. If MIT, Harvard, Stanford, UC Berkeley, Princeton, Yale, NYU, etc. threw *serious* support behind good policy (like the Eldred act [eldred.cc], IMHO), the RIAA would find it much harder to have their way with congress. Admittedly, uniting these institutions of intellectual debate is much easier said than done, but they are uniquely equipped to put forth balanced proposals that address a broader social agenda than would ever emerge from an industry lobby. We could really use someone with the clout, resources, intelligence and neutrality of MIT to help write (and right) the rules of the game that are fair to *all* the stakeholders, not just the RIAA. [emphasis added]
- What we are finding is that leaving the fox (the RIAA) to guard the hen-house (IP policy) is great for the fox and bad for everyone else.
- Amen to that -- but I'm afraid that MIT's competition up the river at the Berkman Center are putting far more into this than MIT ever will. See, for example, this announcement and the accompanying Harvard press release.
Frank says in this post that he is leaning toward believing the RIAA had something to do with the MIT suspension of LAMP. But we don't really know at this point what the combination of factors was, beyond the licensing dispute. My hope is they manage to get this analog system back up and running. But the /.-er is correct: the real issue is IP policy tilting so far in favor of the incumbent copyright owners. More balanced options between the extremes of stealing by users and total ubiquitous control by copyright holders are needed. And, his idea that universities are the ones to push back for reform of the copyright regime is terrific. The schools involved are credible, reasonable institutions that could band together to demand a more equitable and fair copyright policy between all the parties involved.