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A couple of quick items.

1) The US has released a summary of the state of discussions about the Anti-Counterfeiting Trade Agreement, about which a FOIA request had been denied (or technically, granted) on perplexing “national security” grounds. The bad news is, the summary could have been written by pretty much anyone; it simply explains, in some detail, that they are talking about the things you’d expect them to talk about. And the most important issue, whether there will be a global system of Internet surveillance, watching for pirated music and videos but seeing all Internet communications in the process, receives very spare treatment:

This section of the agreement is intended to address some of the special challenges that new technologies pose for enforcement of intellectual property rights, such as the possible role and responsibilities of internet service providers in deterring copyright and related rights piracy over the Internet. No draft proposal has been tabled yet, as discussions are still focused on gathering information on the different national legal regimes to develop a common understanding on how to deal best with these issues.

Not helpful. I would love to see the US explanation of the US legal regime relating to searches without suspicion.

2) The Associated Press is threatening to go after news aggregators (like the Huffington Post) and search engines (such as Google) who link and quote from their content without paying them. Money is being made with their content, they protest, and they want a cut. “Fair use,” cry the aggregators, pointing out that the AP stories get more visibility because the sites link to them. Apparently the AP hopes that their worries can be resolved without a court battle; we shall see.

3) Added a little later: I should have mentioned yesterday’s report that the movie industry’s solution to digital piracy is to make the US ‚Ķ more like France! There they have a three-strikes law — if the industry complains multiple times to the ISP, you get disconnected, and placed on a national blacklist so you can’t move and get a connection in a new location. That would really be neat, says an industry rep at a Congressional field hearing in movieland — while acknowledging that he doesn’t know how it would work or if it would be legal. As the New York Times reported,

One of the strongest possible measures was offered by Steven Soderbergh, who testified as a vice president of the Directors Guild of America. He proposed that the entertainment industry be “deputized to solve our own problems,” under a model that is being tried in France.

Pressed later for details of the French plan, Mr. Soderbergh stumbled a bit and said he was not quite sure how it might work.

People who have worked closely on Hollywood copyright issues described a French-like solution as a plan under which those who believe their copyright has been infringed might ask an Internet service provider to send successive warnings to an illegal downloader.

If the warnings fail, the downloader might then be barred from using the provider for a time and be placed on a national registry that would block access to other providers.

To pass laws with similar steps in the United States “is going to be tricky,” Mr. Soderbergh acknowledged during the hearing.

That damned Bill of Rights again. Do any of these people understand that there is a reason why Americans can’t be searched without some reason to think they’ve done something wrong?

Though he took a bit of heat for his choice of gifts to the British royal family, I thought it was great that President Obama gave Queen Elizabeth an iPod full of music. The iPod is a great symbol of 21st century America; I am sure the Queen needs no more crystal candlesticks, even the best that American craftsmen can make. And apparently the White House staff did a bit of research on her tastes, so we know that she likes the music.

But wait. Were those songs really President Obama’s to give away?

If he downloaded them from ITunes, he had a license to use them, not the right to give another person a copy. If he bought the CDs, he can’t just go making copies and giving them to people, Xeroxing music as it were. That’s what the RIAA calls “theft” and “piracy.” Fred von Lohmann takes us through the permutations here. Including details about things presidents and queens can do that the rest of us can’t. But the question is: If every college student went out tomorrow and did just what the president did, giving their friends nice new iPods full of tunes, would the recording industry scream? And if so, doesn’t the naturalness of the President’s gesture tell us how absurd copyright law is?

When Google started the process of scanning millions of books and returning little snippets in response to search queries, the¬†Association of American Publishers and the Authors Guild cried “copyright infringement!” Google countered that the little snippets it was showing fell within “fair use,” but that begged the question of whether Google had a right to make digital copies of entire books in the first place. Eventually the two sides got together and hammered out their differences. Money will start changing hands, between people willing to pay for Google’s digitized books on the one hand, and Google and the authors and publishers on the other.

The settlement is before a federal judge in New York (the same one who dealt with Bernie Madoff, as it happens). If the judge approves it, the problem goes away — sort of. Any individual author or publisher could opt out of the agreement, and retain the right to sue Google for copyright infringement separately. It’s unlikely many will choose to go that route, since by staying in the settlement class, authors will start to realize some revenues from the scanned copies. On the other hand, if another party, Microsoft say, starts digitizing books, the authors and publishers could sue it too; the settlement is a private deal with Google, not legislation dictating how such digital copies should be regarded in the future.

A subset of copyrighted works is now getting special attention. The term of copyright is now so long that many works that are still legally copyrighted have become “orphans” — no one knows who owns the copyright. Revenues will be generated from the sale of these works too and, as the settlement now stands, split up between Google and the¬†Association of American Publishers and the Authors Guild. That doesn’t seem quite right, but it’s not clear what else should happen.

The New York Times had an excellent explanation of the muddle on the front page of Saturday’s paper. Stay tuned — there will be more action on this before the dust has settled.

James Grimmelmann, a Harvard computer scientist turned law professor, has a good analysis of the settlement here.

I went to the White House web site to download a copy of the recent financial disclosures of Lawrence Summers, formerly Harvard president and now Chief Economic Advisor to the president of the U.S. (I have a particular interest in Mr. Summers, because I have thought a lot about his Harvard years.) Before they would give it to me, they wanted some information about me: My name, addresses (postal and email), and occupation. They also asked me to affirm that I wouldn’t use the disclosure in a bad way (I paste that question below).

Any idea why this is necessary, given that public disclosures are, by nature, public information? In any case, there is no need to supply that information — DocStoc allows you to download the same document, free and with no questions asked. That’s what I did.

—————

The affirmation required by the White House:

I am aware that pursuant to section 105(c) of the Ethics in Government Act of 1978, as amended and 5 C.F.R. § 2634.603(f) of the implementing OGE regulations, it is unlawful for any person to obtain or use a report:

(1) for any unlawful purpose;
(2) for any commercial purpose, other than by news and communications media for dissemination to the general public;
(3) for determining or establishing the credit rating of any individual; or
(4) for use, directly or indirectly, in the solicitation of money for any political, charitable, or other purpose.

The Attorney General may bring a civil action against any person who obtains or uses a report for any such prohibited purpose as set forth above. The court may assess against such a person a penalty in any amount not to exceed $11,000. Such remedy shall be in addition to any other remedy available under statutory or common law.

A draft cybersecurity bill empowers the president to commandeer the Internet under vaguely specified circumstances:

The President … may declare a cybersecurity emergency and order the limitation or shutdown of Internet traffic to and from any compromised Federal government or United States critical infrastructure information system or network …

Now the Internet is inherently hard to control, because of its distributed architecture, and the vast numbers of private and governmental parties, spread across the globe. I wonder what would actually happen if he gave the order. The language of the bill also states that the President

may order the disconnection of any Federal government or United States critical infrastructure information systems or networks in the interest of national security,

which may sound reasonable until you recall how capacious “national security” interests can be — broad enough that allowing the American public to see the draft of an anti-music-piracy trade agreement drafted with the assistance of the RIAA is also considered a national security threat. By that standard, the President could cut off your Internet connection if he though you were a file-sharing risk.

There is, moreover, a category of “Federal government and¬†private sector owned critical infrastructure information¬†systems and networks.” These are not defined in the proposed statute — the President (surprise) gets to say which systems and networks are “critical.” The bill then gives the government complete access to everything about them:

The Secretary of Commerce shall have access to all relevant data concerning such networks without regard to any provision of law, regulation, rule, or policy restricting such access.

Now I am guessing that the Internet backbone would be critical, don’t you think? Pretty much all traffic flows through the backbone, so it seems this clause may with one stroke of a pen invalidate ALL privacy laws and protections relating to electronic communications.

There is a lot in this bill to like — it calls for important research and creates some emergency-response structures that are likely to be more good than threatening. There is also much to make one suspicious — it leads with appeals to the economic importance of the Internet, and talks about “intellectual property” long before it mentions “banks.” But the worst seems to me in these few lines, where the drafters, our elected representatives, have said, “The government can seize control of it all and can look at everything.” So much for Congress checking the power of the executive to monitor and interfere with the communications of citizens!

Harvard announced yesterday that it would no longer print the course catalog, the Handbook for Students, and a few other softcover volumes that are issued annually to students and faculty. The Admissions Office had already announced that it would cut down on the amount of printed matter it sends to high school students. The rationale is for doing less printing is, of course, cost savings — Harvard is undergoing significant budgetary contraction. It’s a bit sad — I have a collection of Harvard course catalogs going back to about 1850. The earliest ones, before Eliot abolished most curricular requirements and instituted the elective curriculum, had the course schedule printed on a single page: Hours of the day across, days of the week down, and four lines in each box, indicating which course would be taken by freshmen, sophomores, etc. at that time on that day of the week. I’m going to add this year’s, which is hundreds of pages long, as the last one in the collection.

If I can find it. I think it’s in the office somewhere, but I’ve never looked at it, since it’s generally easier to use the Web version. And that, of course, is the reason this move makes so much sense. The online catalog is searchable, and it’s also up-to-date — there are always additions and deletions to the list of courses after the catalog goes to print.

Still, books are more browsable than online text. Though user interfaces keep getting improved, there is nothing with the high bandwidth of flipping through the pages of a book, creating the opportunity for the marvelous human visual system to catch a word flashing by. And computers are still awkward to read in bed.

Harvard couldn’t have been considered dropping the printed catalog until the Internet became ubiquitous — or at least ubiquitous on campus. The fact that it’s far from ubiquitous in many parts of America poses a challenge to the electronic outreach efforts of the Admissions Office.

One of my colleagues poses an interesting question. The Registrar has always posed a strict 200-word limit on our course descriptions, to prevent our enormous course catalog from becoming gargantuan. But bits are cheap. If we hold to the 200 word limit, it will be another example of a social restriction we used to justify by economic necessity, but which we sustain because we decide that the discipline is good for us even after technology has gutted the economic justification. There are many other examples in Blown to Bits — for example, the regulation of speech on U.S. broadcast radio and television.

And then there’s the question — will some pack-rat, a century and a half from now, be able to assemble a collection of Harvard course catalogs, to compare and contrast? What confidence can we have that institutions on which we rely to provide online information will keep their archives visible forever?

Chris Soghoian is a smart, relentless privacy advocate and activist. I’ve cited him half a dozen times in this blog (use the search box). He has done a lot of dirty work for print media as well. He’s a grad student at Indiana and a Fellow at the Berkman Center, where I have gotten to know him. He’s a guy you definitely want on your side in an argument. For example, he just took on the recording and movie industries in an FTC hearing about the loss that consumers can suffer if their cloud music or movie supplier goes out of business and takes the bits down with them.

A few weeks ago he pointed out that the decision of the Obama administration to use YouTube had privacy consequences — there was a risk that Google could track who was watching presidential addresses, for example. The first post on this subject was called¬†Why Obama should ditch YouTube, and several others followed. Both the White House and Google were apparently furious, but the White House changed its practices shortly afterwards.

Now CNet, the online news service that sponsored Chris’s blog, has fired him. No explanation, but it’s almost surely because he annoyed some powerful institutions. Here is Chris’s own comments on this, and here is a comment by the Electronic Frontier Foundation.

This is not good. We’ve lost an important voice. Even more, the case raises big worries about the independence of the new media. Chris’s stuff is edgy, and it’s no surprise that his exploits irritate people. But what did CNet think it was getting when it published a blog entitled “Surveillance State”? And on this story at least, the denouncements that followed were denials of things that Chris’s stories never said. I am not aware that he was caught making any mistakes. So please imagine the Washington Post firing Woodward and Bernstein after they started printing embarrassing stuff about the Watergate burglary.

I wish him well. We’ll be hearing from him again, I’m sure. And on the bright side, maybe he’ll finish his PhD now. But I wish he were still up on a visible site making trouble in his informed, funny way.

Things change so fast.

People use Twitter to broadcast short text messages about what they are doing. Pretty vain, but it does have its uses — as David Pogue notes, if you’ve got a question that is hard to Google but has a simple answer, thousands of human beings may be out there, waiting to tell you the answer.

Then people started losing track of the fact that other people were actually reading what they were writing, maybe people who aren’t nice. A US Congressman forgot that his diplomatic mission to Baghdad was supposed to be secret, and that guys with guns and bombs might like to follow his movements.

Now we have people who, having splattered their 140-character-max tweets all over the place, want to assert copyright in what they’ve written. There are only 27^140 possible tweets, can I just copyright them all and then sue anybody who uses Twitter?

Seriously, I can’t think of a reason why these claims of copyright in tweets wouldn’t be valid. But who would worry if somebody passed along his or her tweet to somebody else? Isn’t twittering psychologically in the same space as opening a cage of doves, freeing them to the world?

Or hawks maybe. People are also filing libel lawsuits because they’ve been called dirty names in other people’s twittering. Hmm — certainly could be false and damaging, and certainly is communicated to third parties. Sounds like that claim could hold water too.

A remarkable report was released yesterday by researchers at the University of Toronto. A very sophisticated malware distribution has been reporting from hundreds of infected computers for at least a year now. Among the computers affected are those of groups allied with the Dalai Lama, and the reports appear to be going to China. The malware has the capacity not only to send documents back, but to turn on the computer’s camera and microphone so everything that his happening in the vicinity of the computer can be observed. John Markoff has an excellent summary in the New York Times, and the full report is available for download here.

This is scary stuff, and no laughing matter. Other sites that were part of the network included a computer in an Indian embassy.

AT&T has announced that it is teaming up with the Recording Industries Association of America to fight illegal music downloading. Subscribers to AT&T Internet service will have their traffic monitored, and will receive warning letters if their activities are suspicious. This is the other shoe dropping after the RIAA’s announcement in December 2008 that it would no longer go after individual downloaders (mainly young, music-loving individuals) with draconian threats. It’s the roll-out of a plan that has long been expected: the RIAA, unable to staunch the leakage of bits by using legal methods to punish the guilty or educational methods to persuade the population at large, has instead persuaded a private corporation to presume all of its customers guilty and worthy of unwarranted surveillance. The only surprise, perhaps, is that a major ISP is leading the way.

Bad as the RIAA’s previous system of extortion letters was, this is, in its way, even worse. The odds were heavily stacked against anyone alleged to have downloaded a song illegally, and the private police force the RIAA hired was beyond the scrutiny of the people it was policing. But at least there was some reason to believe that someone had downloaded something before the demand letter went out. The RIAA might get wrong who and what, but the letters were, presumably, triggered by actual events.

Not so with the new program. Now, apparently, all customers will watched all the time. It is as though the RIAA had worked out a deal with FedEx to open all packages looking for compact disks, and to send a warning letter if you seemed to be receiving too many of them.

[AT&T executive Jim] Cicconi told attendees of the Leadership Music Digital Summit that the notices, which are sent via e-mail, are part of a “trial.” AT&T wants to test customer reaction, he said.

I hope any AT&T customers out there will freely offer AT&T their reactions, and I hope those reactions are furious. Surveillance is not OK and no one should put up with it.

There seems to be some confusion on the part of the various spokespeople about what AT&T may or may not do about terminating accounts. Of course they don’t want to drive business to other ISPs — but many locations do not have competing ISPs in the first place.

In any case, the fundamental problem is that broadband services should be treated as common carriers. The fact that the ISPs own the “wires” should not give them the right to pick and choose who uses the wires, on the basis of private surveillance and unproven allegations. They can’t legally do it on their long distance lines, and they shouldn’t be able to do it on their Internet service either.