shouting loudly

Will EFF Defend MySpace Bully Mom?

In a post on Threat Level discussing the scary legal precedent set by the Lori Drew prosecution, EFF civil liberties director Jennifer Granick says she would want to talk to Drew.

I doubt Granick supports Drew’s behavior, but the EFF is all about preserving our online freedoms, and the interpretations pushed by prosecutors to make their case are highly problematic. In a nutshell, here’s their argument:

1. It is against MySpace terms of service (ToS) to post false information, impersonate another person, or solicit personal information from a minor.

2. By breaching these ToS, Drew was engaged in unauthorized access to MySpace computers.

3. Unauthorized access to computers is a violation of federal law–the same law used against those who crack into companies’ servers to steal data, deface websites, etc.

Using the law in this way sets a terrible precedent. It would make me a felon every time I use BugMeNot.com to log into a mandatory-registration website with ToS demanding accurate information. From the post:

By way of example, Granick notes that some terms-of-use contracts prohibit users from making negative comments about the company. “If you write on a blog something disparaging about that company, are you in violation of criminal law?”

Other contracts have prohibited visitors to a website from linking to that site. …

[Andrea Matwyshyn, law professor at the University of Pennsylvania’s Wharton Business School,] says she understands the impulse, but is concerned that if successfully prosecuted the case could set a bad precedent for turning breach-of-contract civil cases into criminal ones.

“Terms of use have been progressively getting more Draconian and restrictive,” she notes. “So as these provisions get drafted and users agree to them, we may find ourselves in a situation where a company that drafts one may try to leverage this kind of case law to take a breach-of-contract action and turn it into a computer-intrusion [case].”

The EFF has hardly made a commitment to defend Drew, but Granick definitely left the door open.

When asked if this is the kind of case Granick would want to litigate, she said, “If [Drew] calls me I’d be very interested in talking with her about this case. I think there is such an extreme reading here, and I do think it’s dangerously flawed for other cases. I think it’s scary and it’s wrong and something should be done about it.”

If I were Drew, I’d call right now. With a lynch mob federal prosecutor at her door, she needs all the friends she can get.

(For the record, we at ShoutingLoudly do not support adults engaging in psychologically devious online behavior with minor children. Anger at this behavior and sympathy for the victim’s family, however, need not be coextensive with willingness to disregard the dangers of bad case law.)

Posted by Bill Herman in Uncategorized | No Comments »

Two Net Neutrality Bills: One Antitrust, One FCC

Art Brodsky of Public Knowledge has a great post discussing the two House bills that would mandate network neutrality–or at least discourage broadband discrimination.

In the Judiciary Committee, Representatives John Conyers (D-MI) and Zoe Lofgren (D-CA) introduced HR 5994, the “Internet Freedom and Nondiscrimination Act of 2008” (pdf). It authorizes the Department of Justice, under antitrust law, to require all broadband services to be offered on neutral, nondiscriminatory terms.

In the Commerce Committee, Reps Ed Markey (D-MA) and Chip Pickering (R-MS) are pushing HR 5353, the “Internet Freedom Preservation Act of 2008.” This is a far weaker act. It gives the FCC something of a hook on which to hang an argument for net neutrality regulations, declaring that it is US policy that the internet shall remain open and neutral. But it does so under Title I authority, which (to radically oversimplify) means the FCC’s hook is not very strong.

Instead of a strong regulatory regime, the bill mandates an FCC study and report to Congress. In debate, we referred to this strategy as a “studies counterplan.” Don’t do anything, just study the problem further.

In competitive debate and in Congress, “study the problem” is not the strongest rhetorical position, and it’s an even more tepid first move (in debate, a studies counterplan is a strategy for the team that’s assigned to defend the status quo). But even a weak regulatory hook (the first part of the bill) might be enough to discourage Comcast-like monkey business.

In the political world, the bill might also serve a noble purpose as a trial balloon. If its backers (including myself) can’t even get vague statutory authority and a studies counterplan passed, maybe we need to think about another strategy.

In any case, Art is right: it would be best to pass both bills and provide both FCC and DoJ with enforcement authority. It’s an area regulated by the FCC on a day-to-day basis, but it was the DoJ that broke up Ma Bell.

Posted by Bill Herman in Uncategorized | No Comments »

Protect Your Digital Privacy at the Border

Thanks to a recent 9th Circuit ruling, US v. Arnold, customs agents at the US border are free to rummage through the data on your electronic gadgets such as cell phones and laptops.

EFF has this advice on how to preserve your digital privacy–including encryption, encrypted internet connections, and (if you live in the right state/district) contacting your elected representatives.

Posted by Bill Herman in Uncategorized | No Comments »

Court Rules “Making Available” Not Infringement

Yesterday, a federal district court ruled that merely making copyrighted works available online does not constitute infringement.

The case, Atlantic v. Howell, is yet another battle in the RIAA’s legal war on music traders. Here is the heart of EFF’s summary of yesterday’s ruling:

In its order, the court delivers the most decisive rejection yet of the recording industry’s “making available” theory of infringement (i.e., if someone could have downloaded it from you, you’ve violated copyright, even if no one ever did). Citing to the recent ruling in London-Sire v. Doe 1, the court concludes that “[t]he general rule, supported by the great weight of authority, is that infringement of the distribution right requires an actual dissemination of either copies or phonorecords.” The court goes on to conclude that downloads by the recording industry’s own investigator, MediaSentry, are not enough to establish distribution, at least based on the facts of this case (Mr. Howell maintains that, unbeknowst to him, the Kazaa software was sharing his entire hard drive). Finally, the court also suggests that P2P file-sharing may not implicate the distribution right at all, reasoning that what is really going on is a series of reproductions.

The defendants, Mr. and Mrs. Howell, are currently without counsel (as someone who grew up watching Gilligan’s Island reruns, I find this ironic), but the EFF are trying to help them find a lawyer.

The next step is likely a bench trial–neither side wanted a jury trial. Until last October, I would have thought this to be a mistake on the Howells’ part; surely a jury of one’s peers would be more sympathetic to the average person than most federal judges. But the Howells probably know that a jury in a similar case handed Jammie Thomas a bill for $222,000, a substantial rebuttal to the assumption that the jury would feel sympathy or apply modest penalties.

Posted by Bill Herman in Uncategorized | No Comments »

The Piracy Tax: Why Stop with Music?

Reihan Salam has an article up at Slate now on a scheme proposed by Warner Music Group to “tax” internet subscribers $5 each, right on the monthly ISP bill, to pay for unlimited music downloading privileges/forgiveness. Salam recognizes that some characterize this as “the music industry’s extortion scheme,” but suggests that “it’s not as horrible as it sounds.”

As Michael Arrington of TechCrunch argues, the inevitable downside to such an arrangement is likely that it would put the music industry into an even more powerful position to fix prices—why settle on a $5 “blanket licensing agreement” when that could be $7.50? Moreover, why should those who don’t buy or download music subsidize others’ media consumption habits?

Nevertheless, Salam reasons that “something like the music tax simply has to happen” because “piracy can’t be stopped”; it’s just too tempting, too much easier than going out of your way to pay for music. But a system that could “eliminate middlemen” would put more money in artists’ pockets than the current system, which makes piracy too easy to resist.

Two major forms of this proposed to date—Warner’s blanket licensing agreement and Apple’s recent suggestion for “all-you-can-eat iTunes”—still serve corporate interests better than consumers’. Salam suggests, with apologies to libertarians, that a superior alternative would be a government-mandated music tax (presumably like the blank media levy in Canada).

“What’s not to like?” Salam asks. Apparently, plenty. Readers commenting on the article seem overwhelmingly baffled or annoyed by this proposal. What’s the guarantee this money would actually go to artists? Why not a $5 internet news subsidy instead? And, again, what about those who don’t listen to music?

I will leave aside most of my quibbles with the details of Salam’s reasoning. (After all, hasn’t Apple proved that plenty of people are more willing to pay a buck a song than to go through the trouble of pirating?) The greatest remaining question to my mind, however, is: Why music?

Media sharing over the internet—legal and illegal alike—consists of more than just music downloads. A huge amount of torrent traffic is dedicated to downloading television shows, for example, not to mention feature-length films, computer games, and pirated software packages. The music industry has simply been the most vocal and aggressive of all these industries in insisting that it be compensated for revenue presumably lost to piracy.

Part of me suspects that Warner’s proposal will never go anywhere because of those who aren’t interested in subsidizing the download habits of others, if nothing else. (Being one who spends very little on music each year myself, and mostly buys directly from artists, it kind of rubs me the wrong way.) But then again, we certainly have plenty of extra fees and such tacked onto our broadband bills that most subscribers never think to question, so perhaps that would just be one more.

Moreover, the whole “music tax” approach is already more or less under effect at universities across the U.S. that have bought into blanket download services for students. I’m surprised that other content industries haven’t thought to ride such successes themselves, tacking an internet television fee onto tuition bills, but perhaps it’s just a matter of time—or perhaps everyone else is waiting to see how badly the music industry suffers in the long run under its own mismanaged public image.

Posted by Jason in Uncategorized | 1 Comment »

OK Go Singer’s Brilliant on Net Neutrality

I’m stoked by Damian Kulash’s New York Times opinion calling for mandated network neutrality. It’s a far more accessible, engaging piece than almost anything written on the subject, and he makes a compelling case. Kudos to him.

P.S. On a personal note, it’s been a metric year since I blogged, and for good reason. Life is crazy now, not least because my wife Tina Collins just got a 2 year fellowship at (ahem) HARVARD! So as I finish up my dissertation (still expecting to wrap it up this summer), we’re gearing up to move (her and probably me) to Cambridge. While I’m still actively applying for tenure-track jobs across the country, I’m also looking at postdocs and other work around Boston.

Expect more rage-against-the-machine blogitude once I’m resettled.

Posted by Bill Herman in Internet policy, Network neutrality, Telecommunications, Telecommunications law | No Comments »

Tell the FCC: Help Protect Text Messaging

In light of Verizon’s decision to block text messages from NARAL for no reason other than their content, Public Knowledge has created an online form for submitting comments to the FCC.

This is an important telecom policy issue, and it would still be a problem if Verizon were blocking any messages due to their political content. Cell messaging is a truly common carriage service, and content-based discrimination is simply unacceptable.

Posted by Bill Herman in Telecommunications, Telecommunications law | No Comments »

welcome to David Karpf, guest blogger

I wanted to give a big welcome to David Karpf; we are very honored to have him here on our blog and we look forward to see him post some of the many brilliant little nuggets that I have come to expect to hear from him over our coffee talks together. Dave is a Phd candidate at the political science department of the University of Pennsylvania and researches the internet’s effects on political associations. Welcome!

Posted by lokman in Uncategorized | No Comments »

The News on Blog Readership: Some media frames just won’t go away

Harris interactive released a new poll on Monday, indicating that 22 percent of American adults regularly read political blogs, meaning several times a month or more.  This is an astonishing number, both for what it tells us about the impressive penetration of blogging into political life and for the pervasive negative framing that it receives from traditional media sources.

Reporting for Reuters, journalist Ellen Wulfhorst writes:

“Only 22 percent of people responding to the poll said they read blogs regularly … unlike traditional, mainstream media, blogs often adopt a specific point of view.  Critics complain they can contain unchecked facts, are poorly edited and use unreliable sources.  Despite the attention blogs can get, the poll said 56 percent of Americans say they never read blogs that discuss politics.  Another 23 percent read them several times a year, the survey showed.”

Here’s the problem with Wulfhorst’s reporting: Only 22 percent?  Let’s put that percentage in perspective:

In the 2004 presidential election, 121 million American adults cast a ballot for one of the two major-party candidates.  This was out of a total voting-age populace of 221 million.  That’s roughly 54.7% of all American adults.  So 45.3% of Americans don’t vote in our highest-profile elections, based on 2004 figures.  Let’s go ahead and assume for a moment that, by and large, the people who are so disinterested that they don’t bother to vote on election day are likewise people who aren’t going to turn to blogs for political information.  With that one, tiny piece of contextual information, the Harris poll findings look a whole lot more impressive.

56 percent of Americans never read political blogs, but 45.3% of Americans also don’t vote.  That means, out of the remaining population who actually engage in the most basic form of politics, 40.2% regularly read political blogs, 42% infrequently read political blogs, and 17.8% never read political blogs.  Among actual voters, regular blog readers outnumber non-blog readers by better than a two-to-one margin.  That’s shockingly high penetration for a medium in its infancy just a few years ago.

Wulfhorst reiterates the standard mainstream media critique of political blogging: bloggers have no credentials.  They could say anything, so how can we trust them?  They’re no substitute for supposedly “objective” journalism.

There are a couple of problems with this tired, worn-out criticism.  First, the median blogger has basically no audience.  Anyone can blog, but the overwhelming majority of blogs are only read by the author’s personal acquaintances.  This is the functional equivalent of discussing politics over beers at the local watering hole.  Anyone can say anything they want, but no one pretends to be a journalist anyway.  Blogs let this conversation happen asynchronously and across geographic boundaries.  I can listen to my old college buddies talk about the candidates, and can do so on my own schedule.

The median blog isn’t what 40.2% of voters are turning to for political information, though.  They’re turning to the hub sites, places like Huffington Post, DailyKos, or Michelle Malkin.  These elite blogs provide high-quality writing and analysis while being clear about their political leanings.  They have to, if they want to attract an audience.  If Glenn Greenwald wants to hold his audience’s attention, he’d better do a good job of editing and he’d better check his sources.  Unlike print journalists, if he gets his facts wrong, he can expect to hear about it in his comments section.  And unlike Fox News, Greenwald admits his bias up front rather than hiding behind claims of objectivity.

The mainstream media has spent the past five years alternately being terrified of bloggers and trying to write off their importance.  Wulfhorst’s piece is just the latest in what promises to be an enduring line of attack against the new medium.  The reality of what’s happening here is far more complex.  As Michael Schudson demonstrates in his book, “The Good Citizen,” most Americans have never been particularly engaged in American politics.  Today, the vast majority who do choose to engage in politics turn to blogs for some portion of their political information diet.  They aren’t choosing the factually questionable or poorly-written blogs, though.  Bad bloggers who don’t check their facts and are poorly edited end up writing for nonexistent audiences.  Good ones have a more active, responsive audience than print journalists, and they have to do an excellent job of vetting arguments and providing meaningful analysis of complicated issues, or else the audience will migrate elsewhere.  They actually have to deal with clearer market imperatives than traditional journalists employed by Reuters.

Let’s put this meme to bed already.  Blogs have surged onto the scene.  Most Americans don’t read political blogs, but that is predominantly because nearly half of Americans don’t follow politics.  Major media outlets have added bloggers to their roster of news offerings, and they have done so because the technology of blogging offers a faster dissemination of information and greater interactivity with an actively engaged audience.  The bloggers with an audience provide an excellent product, and the sheer number of American’s now turning to these blogs for news, analysis, and discussion is nothing short of astonishing.

Posted by David Karpf in Media criticism | No Comments »

Air Force Sends DMCA Notices Over Recruiting Ad

Apparently, the Air Force is sending DMCA takedowns to websites, including YouTube, for hosting commercials designed to recruit tech-savvy youth into the military branch’s Cyber Command.This is even though federal government documents are not subject to copyright protection. And as Wired explains:

 Air Force marketing chief Keith Lebling, who sent us the spot in the first place, says any intellectual property claim should have gone through his office, and none did. 

Stop helping us recruit geeks!

Posted by Bill Herman in Copyright | No Comments »