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Facts can’t be copyrighted. So if I know something is true, in general I can publish it, no matter how I learned it. But there are limits. Publishing “hot news” that was gathered by professional journalists is freeloading on the labor of others, and can be illegal as a matter of unfair competition. Sam Bayard has an excellent run-down on the legal history of “hot news misappropriation,” which he describes as a doctrine that was in decline only a few years ago, scorned by jurists and nearly useless in practice. But the Internet has given the concept new life. News organizations, faced with bloggers’ newfound ability to skim the cream off a variety of sources and publish the gist almost instantly, are being sued by the original news gatherers. And, in at least one recent case, winning on the basis of hot news misappropriation.

The case involves a site called Fly on the Wall, which was sued by Barclays Capital, Inc. Fly’s creator, Ron Etergino, claims he does not simply steal the news coming passed on to him by Barclay’s clients. Instead,

According to Etergino, he checks first to see what Recommendations have been reported on Bloomberg Market News.  Then he checks Dow Jones, Thomson Reuters, and Fly’s competitors such as TTN, StreetAcount.com, and Briefing.com.  Next, he visits chat rooms to which he has been invited to participate by the moderator. . . . Etergino also receives “blast IMs” through the Bloomberg, Thomson Reuters, or IMTrader messaging services that may go to dozens or hundreds of individuals.  Finally, Etergino exchanges IMs, emails, and more rarely telephone calls with individual traders at hedge funds, money managers, and other contacts on Wall Street.

As Sam says, that “looks a whole lot like good-old fashioned journalism.  And it largely relies on information that is publicly available through mainstream and Internet media reports, IM blasts, and what appear to be open chat rooms.”

A federal judge has nonetheless required Fly to delay publication for long enough to give clients of Barclays and the other market researchers a head start. And what could be wrong with that?

What could be wrong with that is that it is another way for owners of knowledge, already well protected by copyright laws, to prevent others from publishing the truth. Barclays would have used the simple expedient of a DMCA takedown against Fly if it had been available, but the facts Fly reports can’t be copyrighted. As Bayard says, the hot news misappropriation doctrine “creates a pseudo property right in facts that copyright law says are in the public domain.”

And the problem with that is Google News and its kin, “news aggregator” sites that link to a variety of primary news sites. These have been contentious as newspapers continue to decline, since the ad revenue on the aggregator sites goes to the aggregator, not the news organizations themselves. And when you click on a link at Google News and get directed to the St Louis Post-Dispatch or some other newspaper site, you are unlikely to pay much attention to the ads there, much less to wander into other parts of the newspaper.

All of which argues for sympathy with the beleaguered organizations that create, in the words of Alex Jones’s stirring book Losing the News, “the iron core” of the news, the hard facts that are costly to dig out and for which the news organizations need compensation. But using the hot news misappropriation against the aggregators raises serious First Amendment issues, since as Bayard quotes a relevant precedent, “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”

I don’t know exactly where the balance should be struck, but every time I see a plaintiff win a reasonable-sounding judgment against a publisher by means of a creative application of a legal principle that was meant to cover a different situation, I cringe to think how that principle will be used in the future to curtail the free flow of knowledge.

The intrepid Chris Soghoian, about whom I have blogged previously, has just released another potential blockbuster.

At a trade show he found an equipment manufacturer making these claims about a box it was offering for sale to government investigators:

“Users have the ability to import a copy of any legitimate key they obtain (potentially by court order) or they can generate ‘look-alike’ keys designed to give the subject a false sense of confidence in its authenticity. … IP communication dictates the need to examine encrypted traffic at will. … Your investigative staff will collect its best evidence while users are lulled into a false sense of security afforded by web, e-mail or VOIP encryption.”

To back up a step, SSL encryption — which lies underneath the secure browsing you take for granted when you see “https” preceding a URL such as bankofamerica.com — does not by itself guarantee that the site to whom you are connected is in fact the site of the Bank of America. Your browser relies on the site presenting a certificate, and a certificate authority certifying that the certificate really does belong to Bank of America. There are hundreds of these third party certificate authorities — Verisign is the one you are most likely to have heard of — and there is a protocol for those authorities themselves to be certified as reliable. If a certificate authority is issuing bogus certificates — “certifying” that the FBI is really Gmail, for example — then the impostor could read your email or banking transactions, and no one would be the wiser.

What else could the company, Packet Forensics, mean by promising to provide a “false sense of security”? Its answers to Wired, which called the company, certainly are not reassuring.

Company spokesman Ray Saulino initially denied the product performed as advertised, or that anyone used it. But in a follow-up call the next day, Saulino changed his stance.

“The technology we are using in our products has been generally discussed in internet forums and there is nothing special or unique about it,” Saulino said. “Our target community is the law enforcement community.”

Good for Chris. It will be interesting to see how many worms come out of this can. For good summaries, read the Wired or EFF news items. But the paper itself is well written and does not require an advanced education to read.

Finally closing the loop on its refusal to self-censor its search results in mainland China, Google has flipped the switch. The google.cn site is now being served, uncensored, from Hong Kong. In principle, that is, they are providing uncensored search inside China, since Hong Kong is part of China. Google has also put up a page, which it updates every day, indicating which Google services are available, blocked, or partially blocked from the mainland.

The Chinese government has responded with anger and contempt, claiming (for reasons that are a bit unclear to me) a double-cross on Google’s part.

See Rebecca MacKinnon’s blog for the most cogent summary of the present state of affairs and the choices now available to the Chinese government. She argues, correctly I think, that the government’s bluster is only going to make the Chinese people more aware of what they are missing, causing many more to learn about circumvention tools. She quotes a tweet coming out of China summarizing the irony beautifully: “One Google, On World; One China, No Google.”

Tamar Lewin of the New York Times reports that some state legislatures are showing some common sense about sexting. They are recognizing that it doesn’t make a hell of a lot of sense to prosecute a teenager on child pornography charges for snapping a cell phone photo of herself and sending it to her boyfriend. If the perpetrator is the same as the victim, it’s like prosecuting a failed suicide as attempted murder.

Legislatures are so often happy to have old laws applied to new technology as long as they expand the scope of criminality. Perhaps in these cases they recognize that the kids doing the sexting could be their own children — as many as 20% of teens may have done something similar. Nice to see the pattern reversed, and for the problem to be treated as one of education and parental responsibility. The criminal justice system is not the vehicle for fixing whatever is going wrong here.

Also on the child pornography front, Japan, which apparently does not take real child pornography very seriously, is cracking down on Manga (cartoon) child pornography. A weird inversion of values. The Economist reports that an American court recently convicted someone for possessing Manga child pornography, which I should have thought was hard to do in the US, given the emphasis on harm to the victim. Apparently the grounds are obscenity, which is still illegal, though rarely prosecuted, in the US.

A pair of stories from today’s papers put the promise and peril of the digital explosion squarely before us.

The FCC is set to release its National Broadband Plan on Tuesday. There is good reporting on it in both the New York Times and Computerworld.The key catch phrase is “100 million squared”—get 100Mb/s broadband into 100 million homes by 2020. This is NOT an overly ambitious goal, though it may look to some as extravagant as it must once have looked to bring electricity, and then telephone service, to every rural farmhouse in America. Electricity and telephony were not just conveniences of civilization to which some political theorist thought agrarians should have the same access as city dwellers. They were engines of workplace efficiency and economic growth. The nation made investments, and supported private investments, in connecting Americans to these resources because it was good in the long run for everyone for everyone to be part of the network. So it is with broadband Internet today. Nor are the numbers ridiculous. Remember, Google is accepting applications to bring gigabit broadband, ten times faster, to some lucky community.

So the connectivity plan is all good. And it is also good that the plan anticipates broadband Internet being the mother of all media in the future, gobbling up telephone and television.

But somebody has to pay for it, and this is a lousy time to be asking taxpayers to foot the bill. If you think that the incumbent Internet providers are going to do the job anyway, think again. Verizon is slowing down its deployment of FIOS broadband. There is not enough competition to stir demand (though I would love to think that the Google initiative would create some).

The FCC can collect some money by re-directing the Universal Service Fund, the proceeds from a tax that supports telephone service to those Kansas farms. But a big chunk of the money has to come from elsewhere. And a likely candidate is spectrum auctions: Recovering underutilized parts of the spectrum from incumbent broadcasters, putting the spectrum up for auction to raise money, and also using some of the spectrum for connectivity and some for so-called “unlicensed” uses. Excellent.

The incumbent broadcasters, needless to say, hate this part. They see the writing on the wall and have their own plans for a vertically integrated Internet. The proposed Comcast-NBC merger is a perfect example of that: Put the content provider in bed with the content carrier. If that sounds like the way forward for connectivity, read the section of B2B where we talk about how Western Union’s exclusive deal with the Associated Press worked out for news dissemination in the 19th century.

Moreover, the incumbent broadcasters don’t see any reason to give up any of their spectrum. Except, of course, to paraphrase Scott Brown, it isn’t their spectrum. It’s the people’s spectrum. All the laws about the broadcast spectrum are clear about that.

What isn’t mentioned in the current reporting on the Broadband Plan is Net Neutrality. That may be just one too many battles for the FCC to take on—the scalding letter it received from the telecomms may have scared the Commission.

Now for the bad news.

The Texas Board of Education has adopted new standards for the state’s Social Studies Curriculum, rewriting history through a series of party-line votes on individual amendments. OK to mention Martin Luther King, but you have to talk about the Black Panthers in the same breath. Phyllis Shlafly and the Moral Majority are required subjects. “Capitalism,” curiously, is out—you have to say “free enterprise system.”

But this is the worst:

Cynthia Dunbar, a lawyer from Richmond who is a strict constitutionalist and thinks the nation was founded on Christian beliefs, managed to cut Thomas Jefferson from a list of figures whose writings inspired revolutions in the late 18th century and 19th century, replacing him with St. Thomas Aquinas, John Calvin and William Blackstone.

Oh my god, if you will pardon the expression (and even if you won’t). Aquinas unseats Jefferson in the Texas school system?

First of all, though the story says that the new curriculum “will put a conservative stamp on history,” this isn’t conservatism. It’s revisionism with a political agenda. These so-called conservatives are simply finding common cause with the reviled critical studies movement, skeptical that any ideals represented as products of the life of the mind are anything but a political power play. There should not be more dentists than historians on a panel rewriting history.

But where is the Bits angle in this story? It’s in this paragraph:

The board, whose members are elected, has influence beyond Texas because the state is one of the largest buyers of textbooks. In the digital age, however, that influence has diminished as technological advances have made it possible for publishers to tailor books to individual state.

So I guess this is good news. If the citizens of Texas want their children to be ignorant, the digital revolution has created the technological support for their preferred version of American history. The textbook publishers no longer have to aim for the consensus view.

No more E pluribus, unum, in other words. We can just stay the many rather than becoming one through communication and education.

Homophily rules. Universal connectivity won’t bring us together; it will simply create the opportunity for likeminded souls, no matter how extreme and ridiculous their views, to come together in their own ignorant corners of the Internet. Or the nation. And that is How We Could Know Less, #2.

I have been thinking for awhile about the myriad ways in which we could wind up knowing less, not more, as a result of the digital explosion. So this will be the first in a series. Feel free to post or email others you’d like to suggest.

The editor of the European Journal of International Law is going to stand trial in criminal court in France, because a book review on a web site associated with the journal displeased the author of the book. The book’s author demanded that the review be taken down; the editor wrote a thoughtful response, inviting the reviewer to alter his review if he wished, and inviting the author to post a comment of her own if she wished. (These are book-review innovations that could not have happened in the pre-Internet world.) The reviewer chose not to alter his review, and instead of posting a response, the author sued the editor, personally, for libel. Apparently, under French law, this ball, once rolling, can end only in the courthouse. The editor, not even a Frenchman I think, has to show in Paris in June to defend himself.

This is madness. Without pretending to any expertise about French law, it seems that the European prioritization of personal dignity over free speech as a human right here has crazy, and more importantly censorious, consequences. Who will dare to write a critical book review on a blog if it means the expense and risk of defending oneself in France?

The editor’s telling of the tale is here. The review itself is here.

Hard to know where this case could end. Even if the editor spends a lot of money, gets a good lawyer, goes to France, and wins his case, who, in the future, will dare either write or publish a critical review of anything by a French author? What sort of system of liberté is this? Is this really what the French fought their revolution to protect?

The editor invites help of two kinds. First, and this applies particularly to scholars who are themselves editors,

You may send an indication of indignation/support by email attachment to the following email address EJIL.academicfreedom@Gmail.com Kindly write, if possible, on a letterhead indicating your affiliation and attach such letters to the email. Such letters may be printed and presented eventually to the Court.

The editor asks that letters not be sent to the book author. And second, the editor asks,

it will be helpful if you can send [to the same address] scanned or digital copies of book reviews (make sure to include a precise bibliographical reference) which are as critical or more so than the book review [linked above].

If you have links to reviews that meet that condition, let me know and I’d be glad to pass them along.

I recently noticed that the latest digital cameras have a feature that not only tags people the camera can identify because you have tagged them before, but stops you to ask if you’d like to identify them if the camera notices that they keep turning up in your photos. Facial recognition is in the camera software. (Here is a Panasoic page describing this feature.)

That didn’t surprise me much, but somehow the Recognizr Android-phone app impresses me more. Point the camera at someone and the phone goes to the Web to identify the person and look up his or her profiles on Facebook and other social networks. Bingo, the phone reports back to you whatever the profiles disclose about them.

Nothing very complicated going on here, if you think about it, once you accept that facial recognition is a solved problem. The rest is just web search and retrieval. Underlying face recognition is by Polar Rose.

But think of it. Just miniaturize a bit more and we can all put these in our eyeglasses. Meet someone for the first time, and greet them by name. It will feel weird at first, but I suppose we will get used to it, in the same way that it no longer startles us to see pulled-together businesspeople striding confidently down the sidewalk talking to no one visible.