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A teacher and school administrator in Virginia tells a frightening story of having to defend himself against child abuse and child pornography charges because he transferred a photo of a half-naked girl to his cell phone and his office computer in the course of investigating a student sexting complaint.

My Students. My Cellphone. My Ordeal.

The moral here is that with every student a photographer and a publisher, every schoolteacher can become a detective in an area of crime where the consequences are extremely serious. Adolescent experimentation has tripped legal standards that were put in place to cover an entirely different behavior, and the technology, the law, and student behavior have not progressed in a coordinated way.

The discussions about how the Google Book settlement proposes to handle orphan works have expanded. A small group of which I am a member have formally sought to intervene. So has the Internet Archive. Today the NYT Bits Blog has a brief explanation, and some good commentary.

There have also been three articles that take up the settlement in a more serious way:

Randy Picker, “The Google Book Search Settlement: A New Orphan-works Monopoly?” Picker is an anti-trust lawyer. It’s a longish paper (though not by law review standards), but the first few pages provide a good summary.

Pamela Samuelson: “Legally Speaking: The Dead Souls of the Google Book Settlement.” An excellent, clear, short critique of the settlement. Easy to read for the layperson, highly recommended. This will be Samuelson’s column in the July issue of the Communications of the ACM.

James Grimmelmann, “The Google Book Settlement: Ends, Means, and the Future of Books” (pdf, 17 pages). An issues brief, thoughtful and analytical and complete.

I urge anyone interested to read the Samuelson piece in particular.

“Autocide.” I just made that up, to mean “killing an automobile.” (To my classicist friends, I do know that’s a hybrid, Greek root and Latin ending.)

My old Volvo (really my daughter’s — she has no place to park it) has had the “check engine” light on for years. Every time the mechanic has checked it, the word comes back the same: “Can’t find anything. Must be the check-engine circuit itself. We could fix it but that would be a waste of money.” And for years the engine has given us no trouble. The car has a few other kinks — an odd noise or two, the odometer stopped at about 135,000 miles several years ago, and it won’t hold an A/C charge — but it’s been a fine second car which I use only for short trips.

I took it to get its annual inspection today, and the mechanic brought it back with the big R sticker on the windshield. What’s wrong? “Check engine light.” “I know,” I protested. “It’s been on for five years and they always tell me there’s nothing wrong with the engine.” “Can’t help you, buddy,” the mechanic says. “They changed the system. These tests are automated now. The computer detects that the check-engine light is on and flunks the car automatically. That’s all there is to say.”

What is there to say? We are the captives of the machines we create to make us safer.

The only consolation, I guess, is that the mechanic didn’t like that sound in the right wheel-well either, and would have flunked me for that anyway. And that probably really is important.

I hear there are some car bargains these days …

I wrote in the post just below that given a legal pretext to block web sites, as is being done in Korea, other governments would adopt similar strategies to serve their own purposes. This afternoon’s news brings a great example, right from the USA. Tennessee schools are blocking informational sites about gay and lesbian sexuality, apparently on the pretext that they are harmful to minors. The sites of ministries by heterosexual “converts” from homosexuality are not filtered out.

South Korea has implemented a three-strikes law ostensibly designed to combat music piracy. Three violations of copyright and you lose your Internet connection. Similar laws are being considered in France and elsewhere, but have been slowed by concerns about limiting citizens’ rights to private communication. The Koreans have just charged ahead. ArsTechnica summary here, and fuller Korea Times article here.

This law goes way beyond what even the most ambitious recording and movie industry lawyers could have hoped for, as any web site could be shut down for posting a few photos — or allowing others to post a few articles — that are supposedly copyrighted. A blogger quoted in the Korea Times says,

The law could have the government shutting down not only major Web portals, but online message boards of smaller companies and even `meta sites’ that compile blog posts. And the member blogs of the meta sites could be interpreted as online message boards, too.¬†The law draws a dreadful picture of the future, as Internet users will be required to submit their real names to post on individual blogs and not even imagine using the online message boards of Web portals or meta sites due to the worries of having his or her Internet cut off.

The powers granted to the government are so sweeping that there is suspicion that restraining copyright infringement is not the real or only agenda. As the Korea Times reports,

Critics question whether the new copyright law could eventually be used to suppress certain sites, such as Agora, a discussion board operated by Daum (www.daum.net), which was a seedbed for anti-government criticism during the controversy over the beef issue.

Control the Internet, control the people. The same infectious ubiquity that caused Domino’s Pizza such instant ¬†misery — which Domino’s is fighting using the Internet itself — can be used against the government. This bears watching. If it’s implemented and works in South Korea, other governments will take the lesson.

Federal sentencing guidelines are being modified to provide that using an Internet “proxy” to commit a crime should be taken as evidence that you are a particularly evil and devious sort of criminal and should get a stiffer sentence.

Proxies are simply machines that sit between your computer and the Internet for the purpose of making you appear to be elsewhere. People in oppressive regimes use proxies such as Tor to surf the Web while hiding their IP addresses. Corporations use proxies so their employees can work from home but have the access privileges that ordinarily come from being on-site. Proxies are used everywhere to enhance the privacy of Internet communications.

And that’s a problem, apparently, according to the folks revising the sentencing guidelines, because of course criminals can use proxies to hide their footprints. How do you handle a technology that can be used for both good and ill? Short of banning it, you can say that IF you use it to commit a crime, the crime is worse than if you didn’t use it. Says¬†John Morris, general counsel for the Center for Democracy and Technology, “This is the government saying, ‘If you take normal steps to protect your privacy, we’re going to view you as a more sophisticated criminal.'”

What’s the point? Criminals are unlikely to cooperate by making their criminal acts more traceable so as to reduce their sentences if they get caught. Instead, proxies will get a bad reputation, as things that are risky or anti-social to use. In fact we should be encouraging proxies, and encryption, and other privacy-protecting technologies.

But it is a tricky argument to make, because this clause in the sentencing guidelines is irrelevant to anyone who hasn’t committed a crime — except that it is part of a general push to force all Internet activities more out in the open where the government can watch it. And us.

Here is the regulation itself (PDF, see pages 5-15). Thanks to Slashdot for the pointer.

I previously blogged about the peculiar state of orphaned works under the proposed Google Books settlement. I have now joined with Lewis Hyde and the Open Access Trust (see below for an explanation) in asking the judge who must rule on the proposed settlement to allow our concerns to be heard. The letter speaks for itself so I simply include it below. Stay tuned.

———————–

The Honorable Denny Chin

United States District Judge

U.S. Courthouse, 300 Pearl Street

New York, NY  10007–1312

RE: Case No. 05-cv-8136-DC, The Authors Guild Inc. et al. v. Google Inc.

Dear Judge Chin:

Pursuant to your Individual Practice 2(A), we write to request a pre-motion conference in  Authors Guild v. Google.  We seek to file a motion for leave to intervene on behalf of Lewis  Hyde, Harry Lewis, and Open Access Trust Inc., a Massachusetts nonprofit corporation  dedicated to promoting access to knowledge, worldwide.

We also seek to file motions for our counsel, K.A.D. Camara of Camara & Sibley LLP  and Charles Nesson of Harvard Law School to appear pro hac vice in association with Nathan Z.  Dershowitz, a member of the bar of this Court.

Lewis Hyde, Harry Lewis, and the Open Access Trust represent the community of  readers, scholars, and teachers who use orphaned works.  Orphaned works are works under  copyright, but with a copyright holder who has died, cannot be found, or otherwise has  abandoned his work.  In the status quo, users like us and commercial users like Google can and  do use orphaned works, although we do so against a backdrop of potential legal liability should  the owner of an orphaned work later emerge.

The parties in this case propose to change this status quo by clarifying that the use of  orphaned works is, indeed, actionable copyright infringement; vesting in Google a monopoly in  the lawful use of orphaned works; and dividing between themselves the proceeds of this  monopoly.  The Authors and Publishers, with Google’s consent, purport to represent a class of  copyright holders that includes the owners of orphaned works, even though neither the Authors  nor the Publishers are such owners.  Having turned the Authors and Publishers into legal  representatives of the owners of orphaned works, Google will buy from these representatives a  global license.

The proposed settlement will make Google the only company in the world with a license  to use orphaned works.  No other company will be able to buy a similar license because, outside  the context of the proposed class-action settlement in this case, there is no one from whom to buy  such a license.  The Authors and Publishers join in this scheme because Google proposes to  divide with them, pursuant to the proposed settlement agreement, the revenue that the orphaned  works will generate.  The settling parties plot a cartel in orphaned works.

We seek intervention to defend our interest in orphaned works — to defend the public  domain’s claim to free, fair use.  The purpose of copyright is to promote authorship and learning.   Copyright does this by giving authors exclusive rights for limited times so that authors can profit  from their writing by selling licenses to others.  This mechanism breaks down in the case of  orphaned works because, with respect to these works, there is no one from whom to buy a  license.  The public can buy no license; the author can reap no reward.  Because exclusive rights  in orphaned works do not serve the ultimate purpose of copyright, the public domain has a claim to free, fair use of orphaned works.

We have the right to intervene to present the public domain’s claim to free, fair use of orphaned works.  None of the present parties will present our claim.  It is inconsistent with the settlement they propose.  If the use of orphaned works is free and fair, then there is no exclusive license to give Google and no claim on the part of Google, the Authors, and the Publishers to the proceeds of that exclusive license.  We must press our claim in this case because it is only in this case that there is a party that purports to represent the owners of orphaned works with whom we, like Google, can negotiate.  Our interest in orphaned works, put in jeopardy by the proposed settlement and adverse to the interests of the settling parties, gives us the right to intervene under Rule 24.

Our request to intervene is timely.  It comes shortly after the terms of the proposed settlement became public and made our interest concrete.  And it comes well before the June 11, 2009, fairness hearing on approval of the settlement.  The settling parties claim that class notice was mailed on January 5, although many authors did not receive notice until much later.  Lewis Hyde, for example, received notice by mail dated February 20.  Our intervention comes, at most, three months after notice.

We believe that the proposed settlement worked out by Google, the Authors, and the Publishers is a landmark achievement and an historic event.  But the settlement currently proposed cannot be approved because it does not respect the interest of the public domain in the free, fair use of orphaned works or the revenue that these works will generate — nor was it arrived at through a process in which that interest was represented.  We think that this case and the constitutional issues of national moment that it presents will be better resolved if the public domain has a seat at the table.

Lewis Hyde is Richard L. Thomas Professor of Creative Writing at Kenyon College and was formerly director of the creative-writing program at Harvard University.  Harry Lewis is Gordon McKay Professor of Computer Science at Harvard University and was formerly Dean of Harvard College.  Open Access Trust Inc. is a Massachusetts charitable corporation dedicated to the creation, encouragement, and maintenance of institutions that serve the goal of open access to knowledge, worldwide.

We respectfully request leave to file our motion to intervene and motions for leave for our counsel, K.A.D. Camara and Charles R. Nesson, to appear pro hac vice, in association with Nathan Z. Dershowitz, a member of the bar of this Court.

Respectfully submitted,

____________________________________

K.A.D. Camara

Camara & Sibley LLP

Charles R. Nesson

Nathan Z. Dershowitz

Dershowitz, Eiger & Adelson PC

I strongly recommend the front page story in the NYT today about how US immigration policy is making it next to impossible for US technology companies to hire the top technical talent from abroad. The poster child is Sanjay Mavinkurve, a Harvard grad in CS who has already demonstrated himself to be a top engineer at the age of 28. He works for Google — out of Canada, since he can’t get a green card and so his wife can’t work here.

I have had many, many students from abroad who just want to be Americans. They have contributed far more jobs to the US economy than they have consumed themselves. The counter-argument — that there are unemployed US engineers who should be hired instead — is absurd. Of course an average US engineer should be hired over an average foreign engineer, but we are talking about the people who will drive the US economy in the future. America has the potential to keep doing just what it has always done, bring in the top talent from abroad and make them its own. Without them, we will stagnate in our jingoistic righteousness and wind up with a second-rate economy.

I know Lou Dobbs doesn’t agree ‚Ķ

Britain’s chief anti-terrorism officer has resigned after a newspaper printed a photo of him getting out of a car. Huh? Well, you see, he was carrying a secret document, and the text on it was clearly legible. (Some words have been redacted in the photo on the web site — they were not redacted in the original.) A round-up of terrorist suspects had to be accelerated because of the leak.

The government moved to block the Evening Standard from printing the photo, but it was too late — the image was already up on the Internet.

Which raises two interesting questions. As it happens, the photo was taken by a media photographer, but what if it had been taken by a tourist with a high-resolution camera? All the niceties about prior restraint of the press, and media self-policing, would have been irrelevant. I could have taken the photo myself and had it up on this blog within minutes. It doesn’t make sense to have the press laboring under restrictions more severe than those imposed on citizen journalists, does it?

And with high-resolution digital photography now a consumer game, there are lots of embarrassing web sites that could be created. For example, take Latanya Sweeney’s research in which she was able to capture fingerprints just by having people wave their hands in front of a camera (well, several cameras so she could get multiple views). That’s a laboratory exercise at this point, but in a few years, any clown could watch a crowd with a camera and post a web site with lots of images of fingerprints ‚Ķ with facial photos ‚Ķ with names, which could perhaps be recovered from the facial photos by searching the web using face-matching software ‚Ķ.

In a surprising vote, French legislators have defeated a bill that would monitor Internet communications and cut off from the Internet people accused of illegal downloading by the music and movie industries. The defeat resulted in cries of anguish from the industry spokespeople, and a promise from Sarkozy to bring it back after Easter, when more than a handful of legislators will actually be present to vote.

It’s surveillance, guys. If it’s legal to inspect everybody’s data packets because you are pretty sure somebody is sharing songs illegally, surely it should be legal to open everyone’s mail because we know that there are illegal acts carried out through the postal service. And to listen to everyone’s telephone calls because we know some people are doing bad things over the phone.

The French see these things differently, and the big fear is that ubiquitous Internet surveillance will establish a beachhead in Europe and then be transported stateside through international treaties. Watch this one closely.

Sarkozy, by the way, is fuming.