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The Electronic Frontier Foundation has a remarkable account of a clever use of the Digital Millennium Copyright Ac by the Burning Man Organization. That’s the radical artistic celebration and community-gathering that happens every year in Nevada. BMO includes in the terms and conditions to which you agree when you buy a ticket that BMO will own any photos or videos of the events that are used in a way BMO doesn’t like. Once BMO owns the copyright, it can, of course, demand that they be taken down from wherever you’ve posted them. Ingenious! Same technique some doctors are using to prevent patients from posting unflattering reviews — sign over to the doctors the copyright on anything you say about them, and they figure they can force the doctor-review web sites to remove the material, which isn’t yours to post.

The DMCA notice and takedown provisions have created a funny-farm world, in which ordinary people using the Web to express themselves haven’t a prayer against the lawyered-up pros — even the pros of radical artistic organizations.

That is thee title of a superb column by Pamela Samuelson explaining some (but only some) of the worries about the proposed settlement of copyright infringement claims against Google for scanning copyrighted works. She explains the perverse incentives to both parties to this litigation. In a word, each realized that they could become literary monopolists if they played their cards right with each other.

That is exactly the reason why the federal judiciary gets involved in settlements that private parties have negotiated with each other in class action cases. There is too much risk that the parties will find a way to divide the pie between themselves in a way that does not serve the public well.

And, of course, the public would gain much from the settlement. Advocates for the disabled are urging the judge to approve it because it would expand access to works that can be mechanically vocalized. And so it would, at a huge cost o competition, openness, privacy, and various other pitfalls.

It may not matter, if the Department of Justice decides the settlement has serious anti-trust implications, as it certainly seems to. (You can read the DOJ’s curt letter to Google at that site, thanks to DocStoc.)

Hard on the heels of Amazon reaching into the homes of Kindle owners and snatching copies of Orwell’s 1984 off their devices, we have a stunning reminder that Apple’s iPhone is also a tethered device, and nothing goes on it that Mother Apple doesn’t want on it. Application developers have to go through a certification process to get their apps approved for the iPhone, and among the standards applied by the certification team are prohibitions on obscene and pornographic material. On that basis, Apple refused to certify the Ninjawords dictionary until the developer removed words such as “shit” and “fuck” that appear in every standard dictionary of the English language. John Gruber, the author of the linked-to post, points out that some of the banned words appear in the King James bible, and some, such as “ass,” “cock,” and “screw,” have inoffensive meanings which are equally unavailable to the iPhone users of the dictionary. Even after the developers scrubbed every word that had a sexual meaning, Apple insisted that the dictionary carry an “age 17 and over” classification.

No unexpurgated dictionary on the iPhone? No dictionary at all for 16 year olds, lest they find a word with sexual connotations? I’ve been thinking about getting one, but this is too much, no matter how neat they are. We don’t want our consumer electronics suppliers to be the arbiters of public morality, because in 21st century America the least common denominator will be down somewhere near the level of Saudi Arabia.

‚Ķ the US State Department reports that US Immigration checks the Facebook pages of people seeking to enter the US, looking for signs of fraud. I’d love to know what other parts of the government look at Facebook for what other purposes.

That article has some other remarkable passages, about State Dept web browsers and the Sec’y of State on peanut butter.

Evgeny Morozov has a scary report at the NPR web site that should serve as a reminder of how hard it now is to keep our various personae separate when our social life is conducted online. I’ll quote, rather than paraphrase, what happened to an Iranian-American woman.

On passing through the immigration control at the airport in Tehran, she was asked by the officers if she has a Facebook account. When she said “no”, the officers pulled up a laptop and searched for her name on Facebook. They found her account and noted down the names of her Facebook friends.

Scary and creepy. But why, exactly? It’s not like the information was rummaged out of her personal papers or extracted by torture. Anyone who uses Facebook much knows that the list of your friends is usually public information. Hundreds of millions of people could have gotten the same information without the woman even being aware that it was happening. This poor woman probably felt that her Iranian identity was separate from her American identity. And the Iranian authorities, who surely have been frustrated by the Internet’s connecting capabilities, have figured out that there is another side to that coin.

Think about it. There is absolutely no reason to think that ANY government would not do the same thing. Nobody needs a search warrant to find out who your “friends” are — they just need your name. Any police officer or boarder guard anywhere in the world could do the same thing. So could any employer or prospective employer, college admissions officer, etc.

Unless, that is, you change Facebook’s default privacy settings. Go to Settings, and select Privacy Settings. On the page that comes up, look under Search Result Content. Uncheck “My Friend List.” There may be a few other boxes you’ll want to uncheck too. Don’t forget to click Save Changes.

The conviction of Lori Drew, the mother whose ¬†Myspace impersonation of a 13-year-old boy was followed by the suicide of Megan Meier, has been set aside by the judge in the case. ¬†There being no anti-cyberbullying statute ore anything else under which she could be charged in Missouri, where she and Meier lived only a few blocks apart, a federal prosecutor in California (where MySpace is located) charged her under a federal law meant to criminalize hacking into bank accounts and credit card sites. The prosecutor reasoned that lying to MySpace on its registration form was sort of the same thing. By that standard, as we noted on this blog, everybody would be a federal criminal — especially as most social networking sites reserve the right to change their terms of service without telling you. And that is exactly the reasoning Judge Wu used in dismissing the case, even though a jury had returned a guilty verdict. You can’t throw someone in jail under an interpretation of a statute so broad that pretty much everyone would be eligible for incarceration. It’s unconstitutional.

There are legal questions here that I am sure are going to be analyzed. Would jury nullification have been a possibility here, had some juror spoken up to say that the statute was ridiculous if this is what it implied? If not that, what should the jury have done?

But the scary part is the prosecutor’s explanation for what he acknowledges was a “risky’ strategy. He heard a cry “for someone to do something,” and he responded. In other words, he thinks there are parallel universes, the universe of law and the universe of justice. His job is to figure out what’s just and to find a law that can be stretched to fit the facts. That is a really scary attitude on the part ¬†of a federal prosecutor. Lori Drew perhaps should fry in hell, but that is not the business of the temporal sphere. Missouri should perhaps rewrite its laws to make it easier to prosecute the next cyberbully, and the legislature has in fact done that. But if it were the job of the state’s attorneys to decide what is right and wrong independent of the laws, we wouldn’t need the laws at all, we could just rely on their judgment of good and evil. ¬†That’s not how democracies work.

The Department of Justice has now confirmed rumors that it was taking an interest in the draft settlement between Google and the Authors and Publishers, now before federal judge Denny Chin (who just sentenced Bernie Madoff to 150 years). Presumably the question for the DOJ is whether the proposed settlement is anti-competitive; Google responds “It‚Äôs important to note that this agreement is non-exclusive and if approved by the court, stands to expand access to millions of books in the U.S.‚Äù Which is true, but may well not be sufficient to avoid anti-trust issues.¬†¬†See the Digital Daily post here, which includes a link to the actual correspondence between the government and Judge Chin. Judge Chin notes that he is still planning to hold a Fairness hearing on October 7, and if the government wants its views known in writing, it has to submit something by September 18.

The Register has a fascinating report on a new phenomenon, arising from the conjunction of stiff copyright laws and the zero-cost copying those laws were meant to combat, insofar as the works copied were under copyright. People are making copies of works in the public domain and slapping their own copyright notice on them, and then charging money for them. The article describes the use of this technique for some 19th century Japanese books. But why would anyone pay for them when they are in the public domain? Because it may be safer to do so rather than run the risk that you are wrong about the claimed copyright ownership. This scam hits universities hard, because they have proved to be attractive targets for copyright lawsuits and are likely to err on the side of paying (or, to be specific, having their students pay).

But what could be the business model for the scammers? After all, what if they publish books and no one buys them? No problem — they issue the books as print-on-demand volumes through Booksurge. They have no costs until the first copy gets ordered. There is not much incentive for Amazon (which owns Booksurge)_ to crack down.

We blogged awhile back about the Obama administration’s misunderstanding of the fact that White House photos are in the public domain (The White House Confused PhotoStream). No scam intended there, to be sure, but it’s an indicator of how the public domain will continue to get restricted if people don’t fight back. Oddly, Creative Commons (under which Blown to Bits is licensed for free download on this site) is now getting into the act, apparently on the wrong side.As the Register reports,

Now Creative Commons seeks expanded authority to administer the Public Domain, by issuing a “Creative Commons Public Domain License,” as if it was a sublicense of its own invention. Creative Commons is trying to expand its licensing authority over not just newly created works, but all public domain works.

Very odd. I hope someone will correct the Register, if they have the story wrong, or correct Creative Commons, if it’s right.

Added June 29: Creative Commons says the Register is wrong. CC says,

Creative Commons does not have any “authority to administer” the public domain, whatever that means. Our public domain tools are not licenses — there is no “Creative Commons Public Domain License”. CC0 is a waiver that allows a copyright holder, to the extent possible, to release all restrictions on a copyrighted work worldwide. The Public Domain Certification facilitates clearly marking works already in the public domain as such. We also don’t have “licensing authority” over newly created works. All of our tools are voluntary and have an over-arching goal of expanding the commons, more specifically the public domain in the case of CC0 (as much as possible) and the Public Domain Certification (the effective public domain, by making existing public domain works more clearly marked, including with metadata, making them more available and discoverable).

Harvard Magazine has reprinted my comments on the death of the printed course catalog at Harvard in the July-August issue.