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I haven’t blogged lately about the Google Books settlement. You will recall that Google scanned many books, including copyrighted books; associations representing the authors and publishers objected, and sued Google for copyright infringement; the parties went behind closed doors and worked out a way for all the litigants to make some money through what is, essentially, a joint venture in distributing digital books; the settlement went before a court for its approval; the court asked for objections, and received quite a few, about the potential to create a monopoly, about the treatment of foreign works, about the treatment of “orphan works” whose copyright holders could not be found, and about privacy issues, among other things; the parties went back behind closed doors and addressed the earlier issues in the list but not the privacy issues; the court asked for objections to the revised settlement.

The revised settlement is an improvement, and even the original settlement had many good features. But several scholars are now speaking up about problems with the proposed revised settlement. Larry Lessig has an interesting column in The National Review entitled For the Love of Culture,  belittling some concerns about the settlement but bemoaning that the broken state of copyright requires a settlement like this at all, and very much worried about the future or cultural heritage if the settlement goes through. Lewis Hyde has amended his previously filed objection, still puzzled about the treatment of orphan works. His letter speaks for itself so I include it below with his permission. It is followed by a related letter of objection by Eric Saltzman, in his role as attorney to Hyde.

Lewis Hyde • 8 Donnell Street

Cambridge, MA  02138

The Honorable Denny Chin

% Office of J. Michael McMahon, Clerk

U.S. District Court, Southern District of New York

500 Pearl Street

New York, NY  10007

27 January 2010

Dear Judge Chin:

I write to amend the letter of objection that I wrote last August in regard to The Authors Guild, Inc., et al. v. Google Inc. (Case No. 1:05-cv-08136-DC).  My August letter is on file with your office as Document 480.

I shall here limit my remarks to provisions of the amended settlement that are changed from the original settlement, specifically to the role of the newly proposed trustee for orphan works.

I object to the fact that, despite the amended settlement’s creation of an Unclaimed Works Fiduciary (UWF), the monopoly powers that Google and the Books Rights Registry will acquire, should the Court approve the orphan works elements of the settlement, still stand.  The settling parties have limited the role of the UWF such that he may discharge some duties of the registry in some circumstances, but little else.  He cannot act fully on behalf of the rightsholders of unclaimed books; he cannot, for example, license their work to third parties.

To put this another way, it is still the case that an approved settlement will in essence grant the settling parties unique compulsory licenses for the exploitation of orphan works.  But why make such licenses unique?  If the Court and the settling parties believe that they can authorize compulsory licenses of any sort, why not go the extra step and grant such licenses broadly so that competing providers can enter this market?

To address the problem of monopoly in the market for digital books the UWF should be empowered to act as a true trustee.  As such, he should make every effort to locate lost owners, communicate to them their rights under the approved settlement, and pay them their due.  Absent their instructions to the contrary, he should deliver the works of lost owners to the public through the efficiencies of a fully competitive market.

As Chief Justice Rehnquist has written in regard to the larger purposes of our copyright laws:  “We have often recognized the monopoly privileges that Congress has authorized … are limited in nature and must ultimately serve the public good…” (Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)).  In regard to both content owners and the public, then, the fiduciary needs to operate in an open economy of knowledge and, for that, he will need the freedom to license work to other actors.

(Note:  I have asked my attorney, Eric Saltzman, to separately address the question of the UWF’s authority to license orphaned works to others; please see the attached addendum to this letter.)

Yours sincerely,

Lewis Hyde

Richard L. Thomas Professor of English

Kenyon College

cc by e-mail:

Michael J. Boni, et al.

Jeffrey P. Cunard, et al.

Daralyn J. Durie, et al.

Addendum

Eric F. Salzman • 17 Humboldt Street

Cambridge, MA  02140

27 January 2010

The Honorable Denny Chin

c/o Office of J. Michael McMahon, Clerk

U.S. District Court, Southern District of New York

500 Pearl Street

New York, NY  10007

Re: The Authors Guild, Inc., et al. v. Google Inc. (Case No. 1:05-cv-08136-DC).

Dear Judge Chin:

My client, Lewis Hyde, tells the Court in his letter of January 27th that the new proposed settlement cannot be fair to the owners of the copyrights in the orphan works and to the public unless it allows the Unclaimed Works Fiduciary to make licenses to other providers to allow competition with the monopoly plan that Google and the Plaintiffs now propose to the Court.

I would like to offer the Court additional support for Professor Hyde’s objection and suggestion.

If the named plaintiffs or others who “opt in” to the settlement wish to sign on to it with their own copyrights (and if it survives any antitrust process), then that shall be their prerogative.  However, the combination in this class action lawsuit of inadequate representation and significant actual conflicts among the so-called class should make the Court skeptical of granting a monopolistic license of the absent members’ copyrights.

If the Court does decide to approve a settlement of the case, it should not approve one where Plaintiff’s counsel have consented to deliver the licenses for the orphan works to just one licensee.

It would be a complete fiction to say that Plaintiffs’ attorneys have adequately represented the orphan works authors and their successors in interest in this case.  The original settlement proposal clearly demonstrated counsel’s willingness and ability to compromise or, at least, to ignore the orphan works owners’ interests in favor of the named plaintiffs who engaged them and whose assent they needed to cut the deal.

The problem of plaintiff counsel shaping a settlement attractive to the clients before them at the expense of absent class members is a well-discussed problem in class action jurisprudence.  This Court may take notice of an incentive in that direction, the more than fifty million dollars of fees that Google has agreed to pay to Plaintiffs’ counsel if the settlement goes through.

Allow me to point out two methods whereby the proposed settlements seriously shortchanged the orphan works owners to enrich other class members at their expense.

The proposed settlement provides that “Google will make a Cash Payment of at least $60 per Principal Work, $15 per Entire Insert and $5 per Partial Insert for which at least one Rightsholder has registered a valid claim by the opt-out deadline” (Emphasis supplied). According to the settlement, total payments will amount to $45 million.

By definition, no orphan work Rightsholders could meet this registration condition.  Thus was the settlement engineered so that the rightsholders of orphan works and their successors-in-interest would not and could not get any share of the up-front payments total.

Evidently, in dividing up the scores of millions of dollars that defendant Google was ultimately willing to pay up-front (i.e., unrelated to yet unproven forthcoming revenues) to settle the lawsuit, counsel felt no obligation to share any of it with the orphan works owners, even if the rightsholder should later appear and wish to register and claim that payment.  This very large slice of the pie would go only to the known rightsholders, their de facto clients.

This economic discrimination against the orphan works rightsholders went beyond just up-front payments. It also took unclaimed (after five years) revenues from exploitation of the orphan works and assigned them to the known rightsholders of other books, thus promising still further enrichment of the client sub-class with actual control over the settlement.

That particular feature drew such unpleasant attention to the bias in representation in favor of the known rightsholders (and disfavoring the orphan works rightsholders) that it was written out of the settlement proposal now before the Court.  Nevertheless, the Plaintiffs’ counsel who now urge the court to approve this revised settlement agreement are the same counsel who, in the first settlement go-around, assured the Court then (as they do now) that they had adequately represented the entire class, including the orphan works rightsholders.

Commonality and adequacy of representation are two touchstones for class certification.  “The adequacy inquiry under Rule 23 (a) (4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods. v. Windsor, 521 U.S. 591 at 625 (1997).

In Amchem, the Supreme Court upheld the Third Circuit Court’s decertification of the class because it found that “…the settling parties achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. The Third Circuit found no assurance here that the named parties operated under a proper understanding of their representational responsibilities. That assessment is on the mark.” Id at 595.

As demonstrated above, much less than promising the “structural assurance of fair and adequate representation for the diverse groups and individuals affected”, the settlements that were and are proposed to this Court suggest that advantaging the named class members at the expense of the unrepresented orphan works rightsholders was a goal successfully achieved during the settlement negotiation.

Accordingly, if the Court will entertain a settlement, it should itself take on the burden of making sure that the orphan works rightsholders interests are well protected.  At this point, the best way to do so is to free the orphan works from the monopoly straitjacket that the proposed settlement forces on them.

Let the parties live with the deal they made for the parties who were, in fact, adequately and aggressively represented. For the inadequately represented sub-class, the orphan works rightsholders, the Court should empower the UWF (or similar fiduciary) to license their works into the open market. With this authority going forward, the UWF will, as well, be able to adjust licensing of digital rights in these works to the market conditions in an area that is still very new and sure to develop in ways that are, today, impossible to predict.

Professor Hyde’s objection addresses the two enormous flaws in the proposed settlement:  1. the actual conflicts within the class together with the failure of adequate representation of the orphan works rightsholders, and 2.  the anti-competitive effect of the full copyright term license it would grant to Google only.  The first undermines both the process by which the settlement was achieved and, correspondingly, the public confidence in the courts.  The second hurts both the orphan works rightsholders and the strong public interest in access to the knowledge and creativity these books offer.

Short of a initiating a new attempt at settlement — with new counsel for the orphan works rightsholders — the changes Professor Hyde proposes would achieve a result that would be fair for all the parties and for the public.

Very truly yours,

Eric F. Saltzman, Attorney

Not admitted to practice in the U.S. District Court Southern District of New York

Admitted to practice in The Commonwealth of Massachusetts,

Washington State and U.S. District Court Western District of Washington

Telephone:  917 797-5678  Fax:  917 456-0404  Email:  esaltzman@pobox.com

That is the way appeals court judge Michael Davis described the $1.92 million fine levied on Jammie Thomas (now Jammie Thomas-Rasset) for illegally downloading 24 songs using Kazaa. This is the case we discuss in Chapter 5—Thomas was one of the only people who tried to fight the charges in court. That’s $80,000 per song.

The judge reduced the fine to $54,000, and apparently is unhappy that he couldn’t reduce it further, saying, “This reduced award is significant and harsh [but is] no longer monstrous and shocking.” This may still ruin Thomas, but suggests that the judiciary itself may scold Congress about the absurdity of the present statutory damages structure for copyright infringement.

I’ve now both listened to and read Secretary of State Hilary Clinton’s speech on Internet freedom. (That’s a link to the State Dept. home page, where it is still featured. I imagine it will move off shortly.)

It’s a good speech, I think. At least it was good enough to annoy the Chinese. A columnist for the People’s Daily snorted that Google had been reduced to an “ideological tool” of the US government and noted, correctly, that Google is losing the competition with the native Chinese search engine, Baidu. (Note: You can compare for yourself the search results returned by the US version of Google, the Chinese version of Google, and Baidu. But be aware that the link for Chinese Google takes you to servers inside the US, while the link for Baidu takes you, I think, to China. The result is that you may not see google.cn, the Chinese version, as the Chinese experience it. When I tried Googling “Falun Gong” inside China, I lost the Internet connection to my hotel room.)

The China Daily simply denies that Clinton is telling the truth. [A Foreign Ministry spokesman] “said the speech indicated China restricts internet freedom. ‘It is a far cry from the truth,’ he said.” And the People’s Daily accuses the US of hypocrisy. “It is common practice for countries, including the United States, to take necessary measures to administer the Internet according to their own laws and regulations. The Internet is also restricted in the United States when it comes to information concerning terrorism, porn, racial discrimination and other threats to society.” The paper goes on to cite Steve Ballmer as one of the good guys. “Noting that most countries exert some sort of control over information, Microsoft Chief Executive Steve Ballmer said Friday his company must comply with the laws and customs of any country where it does business.”

In fact, in her speech, Clinton, after stirring invocations of the US First Amendment and the Universal Declaration of Human Rights, conceded the point about Internet freedom having its limits. Here is the crucial paragraph:

Now, all societies recognize that free expression has its limits. We do not tolerate those who incite others to violence, such as the agents of al-Qaida who are, at this moment, using the internet to promote the mass murder of innocent people across the world. And hate speech that targets individuals on the basis of their race, religion, ethnicity, gender, or sexual orientation is reprehensible. It is an unfortunate fact that these issues are both growing challenges that the international community must confront together. And we must also grapple with the issue of anonymous speech. Those who use the internet to recruit terrorists or distribute stolen intellectual property cannot divorce their online actions from their real world identities. But these challenges must not become an excuse for governments to systematically violate the rights and privacy of those who use the internet for peaceful political purposes.

Now that passage contains a remarkable juxtaposition. A grand buildup.  A concession that there are limits to expressive freedom. A citation of the example of mass terrorism. OK, I’m listening. The next examples are the usual nondiscrimination categories, presented as hate-speech categories. Now I am getting worried; what counts as hate speech is so often in the ears of the listener. To be sure, it is easy to imagine a Tibetan rant about Chinese oppression that the Chinese could reasonably tag as ethnic hate speech. This is beginning to sound like a list of exceptions to freedom big enough to put almost anyone in shackles. Then there is the “issue” of anonymous speech. Secretary Clinton has nothing good to say about it, and then in a flat declaration puts Osama Bin Laden in the same box with millions of American teenagers—in the box of “those use the internet to recruit terrorists or distribute stolen intellectual property.” At this point I think the speech loses its operative edge. It leads inevitably to the conclusion that the speech control tools aren’t the problem—they are necessary in fact—only the way they are used.

So I finished the speech feeling good; it’s certainly better than a speech that emphasized cooperation at all costs, and that might have been expected. On the other hand it leaves me unconvinced that the administration actually has a consistent point of view on cyber-freedom.

One ironic footnote. The streaming video comes via a service called Brightcove. If you click on the “Information” icon on the video window while the speech is playing, you get Brightcove’s who-knew? privacy policy, which explains that “By using the Site, you agree to the terms and conditions of this Privacy Policy. If you do not agree to the terms and conditions of this Privacy Policy, please do not use the Site.” Much of the privacy policy does not apply to visits to the state.gov site, which requires no login and hence generates no personal information. But of course viewing the Internet Freedom video does send Brightcove your IP address, which Brightcove treats as “Non-Personal Information.” And, it says, “we reserve the right to share Non-Personal Information with affiliates and other third parties, for any purpose.” So Brightcove could, for example, sell Harvard University the information that I watched the Internet Freedom video via the wired jack in my Harvard office. Freedom does have its limits, but I might have hoped they fell a bit farther out than that.

Google’s stated rationale for threatening to pull out of China is the withering barrage of cyberattacks it has experienced, apparently aimed at getting access to the Gmail accounts of Chinese dissidents. In an article that appeared this morning, Rebecca MacKinnon presses on another aspect of the Google-in-China drama: China’s insistence that Google censor its search results. That was, of course, what created the dilemma for Google in the first place, and caused the initial controversy. A part of me thought that pulling out because of the cyber-attacks—happy though it made me—was a bit of a cop-out, suggesting that it would be happy to keep on censoring if only the Chinese crackers would cut out their attacks.

In China, if companies fail to track and remove content or block conversations that regulators deem violate laws or regulations (a court or judge is almost never involved), they risk heavy fines at best and permanent shutdown at worst. …

To operate in China, Google’s local search engine, Google.cn, had to meet these “self-discipline” requirements. When users typed words or phrases for sensitive subjects into the box and clicked “search,” Google.cn was responsible for making sure that the results didn’t include forbidden content. …

Ever since Google.cn launched in 2006, I’ve occasionally run tests to see how its compares to its homegrown competitor Baidu. Google.cn consistently censored less than Baidu did. This is how Google executives justified the ethics of their presence in China: Chinese users, they argued, were still better off with Google.cn than without it.

Things changed for Google in 2009, however. Regulators demanded that it ramp its self-censorship up to Baidu’s level. The Chinese state-run media attacked Google numerous times for failing to protect youth from smutty Web sites when — horror of horrors — those innocent kids happened to type in smutty words and phrases.

Now the important message in MacKinnon’s column is the effectiveness of self-censorship, and how hard it is to fight—and that for that reason, other countries are trying their own versions.

From France to Italy to the United Kingdom, the idea of holding carriers and services liable for what their customers do is seen as the cheapest and easiest solution to the law enforcement and social problems that have gotten tougher in the digital age — from child porn to copyright protection to cyber-bullying and libel.

“Not Your Father’s Censorship,” to use the title of a piece I wrote for the Chronicle of Higher Ed last year. The argument for open publication, and holding the intermediaries blameless for the sins of the authors, is not an easy one. Before anyone goes down that path in search of a safer society, it is worth taking the Chinese example to heart.

The Associated Press reports a strange case in which a Facebook user logged into her account from her cell phone and wound up in someone else’s. Except it turns out that though strange, it is not unprecedented. A couple of people even wound up in each other’s accounts.

It’s a little hard to figure out what is going on, but it seems that the wrong cookie (code identifying the Facebook account) got installed on the user’s cell phone. According to the story, it’s AT&T’s fault, though it is hard to be sure since all the cases involve not just the same carrier but the same web service (Facebook) and the same Nokia phones. If, as reported, it’s a bug in AT&T’s cell-phone-to-Internet connection, it’s easy to imagine that a user might be taken to another’s Gmail account in the same way.

If the connection had been encrypted, that would probably have prevented the cookie bug from doing any harm. But Facebook does not use encrypted connections.

Which reminds me of something I should have mentioned earlier. In what was already a good week for Google on the privacy front, because of its announcement that it would stand up to the Chinese censors, Google announced in a much less publicized blog post that it was going to enable https by default for Gmail. That is, up to now, your Gmail has flowed to you in plaintext, available for sniffing and snooping anywhere in the Internet. There was always a way to change that default and have your Gmail encrypted, but it took a little digging to find the check box and few people bothered. The disadvantage to Google in making encrypted email the default is that the encryption takes time, so Google had to upgrade its systems, costing them money. Now they have decided to to exactly that, and once again, good for them!

Added a little later: The betting in the Slashdot comment thread is that it’s simpler than the AP story suggests. As one comment says,

My guess is that it’s as simple as this: the http returned by a request to “www.facebook.com” was cached by AT&T and delivered to other users who attempted to fetch that URL in an attempt to save bandwidth. The login credentials are irrelevant… once AT&T cached the page it thought of as “www.facebook.com” it would deliver it to anyone who asked for that URL. It probably only changed for the next person because someone insisted on logging out and back in, and the caching server detected the change then re-cached the NEW user’s page. This used to happen a lot on the internet to unencrypted streams that allowed log-ins. These days most caching servers are properly configured, but it’s still an easy mistake to make if you’re setting up a caching proxy.

That is, sometimes an ISP will cache (keep its own local copy) of a web page it retrieves from a server so the ISP can deliver it to multiple users who may request it without going back to the server for a fresh copy each time. Obviously this is the wrong thing to do if there is any possibility that the page may change in an important way in between requests that the ISP is receiving. Perhaps it was just delivering one party’s version of “facebook.com” (a logged in page) to another user who also asked for “facebook.com”. Whatever it was doing, it was wrong! And reminds us that nothing in a distributed system ever works better than the poorest code that gets invoked. Even retrieving a web page involves lots of parties.

Siva Vaidhyanathan, author of the forthcoming book The Googlization of Everything, has posted on his blog what seems to be the entire text of one chapter, about Google in China. So it was frozen well before Google’s decision to stop censoring and perhaps abandon ship. It is a nuanced, balanced argument, with some compelling detail. He notes that censorship is not as simple as the “great firewall” metaphor would suggest, and that absolutist no-business-with-oppressive-regimes postures are not actually productive. Siva replays the debate in which he, I, and Esther Dyson participated, with an honest assessment of the two sides of the argument.

During that debate on National Public Radio in November 2008, Harvard computer science professor Harry Lewis accused Google of violating its “Don’t be Evil” motto by creating Google.cn along the very lines that the Chinese government demanded. “Their choice was, to accept the Chinese ultimatum or to go home. They could have gone home but they didn’t. They stated and built the engine as the Chinese wanted it.” Lewis concluded, “Google didn’t choose the lesser of two evils when faced with the Chinese ultimatum. It chose the more profitable of the two evils.” Now, Lewis was making a debater’s point because, well, this was a debate. The question before the two panels was not whether Google on balance does more bad than good or good than bad. It was whether Google lived up to its motto. The Chinese deal gives Google critics – and my debating team – an easy shot. Perhaps it’s a cheap shot. But that is what debating is all about.

Esther Dyson responded to Lewis. Dyson is known as one of the central visionaries of the information age. She has been present at the creation of many of the most important initiatives of the Internet, including the gestation of several search engines. She is one of the brightest and most influential thinkers about digital technologies and their effects on the world. Dyson understandably believes in the transformative, perhaps revolutionary, power of information technology. “The great virtue of the Internet is that it erodes power, it sucks power out of the center, and takes it to the periphery, it erodes the power of institutions over people, while giving to individuals the power to run their own lives. Google is part of that. It’s one of these things that shines light on everything, it enables people to find stuff out, it enables them to question what their governments are doing, and it’s absolutely wonderful,” Dyson told the debate crowd in New York City. “Google by its very presence and its operation, even if it’s incomplete, creates increasing expectations for transparency, it starts people answering questions. It gets them to expect to be able to find out stuff.”

As I wrote in Chapter 1, I was sitting at the opposite table to Dyson. I was on Harry Lewis’ side of this constructed event. If the question at hand was whether Google violated its motto, I have to come down on Lewis’ side, as I was in fact on Lewis’ side. But in the real world, debates like this don’t matter much. To the people of China, Google’s fidelity to its motto doesn’t make a bit of difference. In the real world, Dyson has a much stronger point. Google might raise expectations. Google might spark some young person in China to ask one more question about why she can’t read this or watch that. Some Google is probably a little better for China than no Google.

You can listen to the debate here. The front page includes a nice picture of Siva and me, ecstatic (and a bit surprised) at the moment the audience declared our team the winner.

So it is time for me to fess up. Siva’s description and assessment are accurate. In fact, when I was invited to participate in the event, I said I could argue either side. They wanted me on the pro side, which was fine with me—as Siva says, in the rhetoric of a debate, it’s the easier argument about which to wax oratorical. But the argument requires a great deal of subtlety, and Siva’s chapter gives the nuanced view.

He doesn’t say how he would revise it now that Google seems to have gotten fed up with Chinese shenanigans …

While preparing a talk about privacy yesterday, I wanted to cite an example of a commercial service that lures people into surrendering their location information in exchange for social connectivity, restaurant recommendations, and the like. I was planning to make the point (and did, when I gave the talk at the HELIN conference today) that location information has cash value, and there are a variety of business models based on getting people to give it up for free and then cashing in on the data that gets collected.

Nothing wrong with this in principle, as long as people understand what they are giving and what they are getting. They are getting connectivity and exposure and recommendations, and they are giving data about the places they go, perhaps not just to the social network but to the business partners of the for-profit corporation that is running it.

In any case, forgetting the names of these networks, I did a little searching and then settled on foursquare as the example I would use. “Check-in to find your friends, unlock your city,” says the site, and the front page then gives a rolling report of what the site members are doing and saying, for example, “Jim N. in DeKalb, Illiois became the mayor of Caribou Coffee.” You can click on the name of the member (player, really) or the establishment to get more information about either. As the site explains,

People use foursquare to “check-in”, which is a way of telling us your whereabouts. When you check-in someplace, we’ll tell your friends where they can find you and recommend places to go & things to do nearby. People check-in at all kind of places – cafes, bars, restaurants, parks, homes, offices.

You’ll find that as your friends use foursquare to check-in, you’ll start learning more about the places they frequent. Not only is it a great way to meet up with nearby friends, but you’ll also start to learn about their favorite spots and the new places they discover.

Not just your friends, either. Just watch the latest check-ins scroll by on the foursquare home page, and you will get lots of interesting tidbits about lots of people. I was starting to groan about the usual privacy questions—who owns the location data, how long does foursquare hold it, how hard will it be for an unhappy spouse or employer to get hold of it, can the company sell it to business partners—when I moved on to work on the next slide.

And then I woke up this morning to discover that foursquare had cut a deal with Harvard University. As Harvard’s official organ, the Gazette, explains,

The service, which is accessible from smartphones and other mobile devices, enables students and visitors to explore the campus and surrounding neighborhoods while sharing information about their favorite places.

The Gazette goes on to proclaim that we are #1: “Harvard is the first university to use foursquare to help students explore their campus and surrounding places of interest.” (Maybe we should take pride in this, though UNC Charlotte claims to be the first university to use foursquare, for a somewhat different purpose. Years ago, when Harvard fell to #2 in the US News rankings, our humor magazine pointed out that this was a good thing, as it would teach us humility, and we should strive to be #1 in humility as we are in everything else.)

Having spent many an afternoon over the past year in information security meetings, where the University has been developing policies and standards for how information about our students may be accessed, stored, and moved, I immediately started wondering whether Harvard had somehow signed onto a deal to encourage students to surrender their privacy, and if so, who was the commercial beneficiary. The Gazette story doesn’t mention data privacy at all. It simply has a Harvard spokesman echoing foursquare’s utopianism.

We believe that Harvard’s participation will allow our community to engage with friends, professors, and colleagues in new ways. We also hope visitors and neighbors will benefit from the platform as it grows through use.

So visiting high school students and Chinese tourists are apparently also the intended “beneficiaries” of this “service.”

As Hal Roberts of the Berkman Center pointed out when I asked him about this story, foursquare’s privacy policy is pure boilerplate:

We receive and store certain types of information whenever you interact with our Service or services. Foursquare automatically receives and records information on our server logs from your browser including your IP address, cookie information, and the page you requested.

It goes on to explain how they aggregate this data and analyze it, and how they won’t disclose it in a way that would identify you personally. Only problem is, the privacy policy doesn’t mention the really private information foursquare collects—the location information. That simply isn’t covered by any of the boilerplate. So they can do what they want with it, without asking. Moreover (and thanks to doc searls for pointing this out), foursquare explicitly says that they may sell that information, and even if they don’t, the company will pass it on if it gets acquired. And that by signing up, you are acknowledging that you understand all that.

Business Transfers: In some cases, we may choose to buy or sell assets. In these types of transactions, customer information is typically one of the business assets that is transferred. Moreover, if Foursquare, or substantially all of its assets were acquired, or in the unlikely event that Foursquare goes out of business or enters bankruptcy, customer information would be one of the assets that is transferred or acquired by a third party. You acknowledge that such transfers may occur, and that any acquirer of Foursquare may continue to use your Personal Information as set forth in this policy.

It’s a free country. If people think it’s fun for people to know where they are, and they understand what they are doing, by all means they should go for it. I am not a killjoy.

But I am puzzled that Harvard wants to encourage this behavior—that it has somehow analyzed the social benefits and the evident commercial interests and privacy risks involved here, and has come to the conclusion that on balance it would be a good thing if a lot of students signed up.

I hardly dare wonder if Harvard itself might have a pecuniary interest in the success of the partnership. I hope not, and that it has simply seen great benefits to the community—and few risks. I would love to know more.

Added January 14: Perry Hewitt, who is quoted in the article, wanted to be clear that there is no “partnership” (as I called it) between Harvard and foursquare. Harvard is simply a foursquare “presence”—as it would be anyway, whether Harvard formally cooperated or not. By allowing foursquare to create a Harvard badge, Harvard is simply making more convenient something people would be doing anyway. I am grateful to Perry for getting back to me and clarifying these points.

I wrote in Blown to Bits about Google’s decision to do business in China, in spite of the need for censorship at the direction of the Chinese regime, notwithstanding Google’s mission statement about making information universally accessible. I thought this was the wrong decision, and I have argued that position publicly (winning against Esther Dyson, among others).

Google has now announced that in light of massive cyber-attacks on its servers from China, including attacks aimed at compromising the Gmail accounts of Chinese dissidents, it is reconsidering its decision to censor, and is even asking whether it can continue doing business in China at all.

These attacks and the surveillance they have uncovered–combined with the attempts over the past year to further limit free speech on the web–have led us to conclude that we should review the feasibility of our business operations in China. We have decided we are no longer willing to continue censoring our results on Google.cn, and so over the next few weeks we will be discussing with the Chinese government the basis on which we could operate an unfiltered search engine within the law, if at all. We recognize that this may well mean having to shut down Google.cn, and potentially our offices in China.

This is a huge decision. While I disagreed with Google’s decision to cooperate with the Chinese censors, I respected the fact that they couldn’t lightly walk away from the biggest business opportunity in the world. I also respected the fact that even the limited search they were offering enlightened many people about things of which they would not otherwise be aware (except that they could always use Baidu, the Chinese search engine).

So Google gets lots of credit for their promise to monitor the information freedom conditions in China and for standing on the principle that even if cooperation with evil is sometimes justified in the interest of a larger good, there are limits, and China has breached those limits.

In the war for digital liberty, chalk this up as a battle won for freedom.

Depends on who you talk to.

In Blown to Bits, we talk about citizen vigilantism—people taking vengeance on people they see doing bad things, or just snapping pictures of crimes being committed, pictures that may help identify the culprits. The digital explosion has engendered a lot more of this, for both better and worse—we once did not all have cameras on us all the time.

Of course, a technology generation later, we all have not just still cameras, but audio recorders and video cameras too—in cell phones and even iPods. And people are whipping them out when they observe arrests being made, and are using the recordings to embarrass the the police, or to help in the defense of the party being arrested.

Except now, as the Boston Globe reports,  the police are increasingly fighting back, accusing those making the recordings of illegal surveillance, under wiretapping statutes. It’s a fascinating story. Some of the convictions are standing up in Massachusetts—the Supreme Judicial Court ruled in a split decision that the wiretapping statutes apply, unless the recording was made in a public manner. So people hiding the microphone in their sleeve or the camera in their coat may well be in trouble. Chief Justice Margaret Marshall was in the minority, opining

Citizens have a particularly important role to play when the official conduct at issue is that of the police. Their role cannot be performed if citizens must fear criminal reprisals when they seek to hold government officials responsible by recording, secretly recording on occasion, an interaction between a citizen and a police officer.

I don’t envy the police their job. Hell, I wouldn’t be happy if people were video-recording my  every movement while I was doing my job. But what the police are doing while making an arrest seems to me a public act by definition. In other situations (all those traffic-stop videos we see) the police themselves make sure everything is recorded these days. Can’t see why recording the police arresting someone in the public square wouldn’t fall within citizens’ rights.

Not sure if those RJ-45 connectors are supposed to remind us of viruses attacking a cell or spermatazoa on their way to an egg, but it’s a graphic worthy of a video game. The title seems to mean “Attack of the Bits,” except that I don’t think either word is real Russian.