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There has been a lot of anxiety about the ease with with web sites can invite vicious, defamatory comments, and allow the people making the comments to remain completely anonymous. If the speaker is the person who controls the site, he or she can be sued. But what about the anonymous contributors? Do their free speech rights trump the rights of the maligned parties to seek compensation for the damage these comments do to them? Should the site operators be required to disclose the IP addresses from which the comments were posted, or other identifying information the operators may possess?

A decision by the Maryland Court of Appeals sets a very high bar for breaking through the anonymity and compelling the site to disclose the identity of the commenters. It’s a standard that could be reached, but it is going to be awfully hard. Here is what the plaintiff has to do:

1. Notify the anonymous poster that the poster is the object of a subpoena (by, for example, posting a message on the same site).
2. Identify to the court the exact statements made by the anonymous poster
3. Show in what way each statement caused damage to the plaintiff.
4. Provide specific information to support each claim.

At that point, the judges need not order the disclosure. First they need balance the damage done to the plaintiff by the anonymous speech against the anonymous defendant’s First Amendment rights.

The decision matches a standard set in 2002 by a New Jersey court, and seems to be part of a pattern in which courts are giving great deference to the right to anonymous speech on the Web.

Someone working for a defense contractor in Bethesda, Maryland did what millions of teenagers do — he installed a peer-to-peer filesharing program on his computer so he could share and download music. He evidently was unaware that the same permission that allows computers elsewhere to reach into his computer and take copies of songs also allows those computers to reach in and take other files stored on his computer. Such as, for example,¬†engineering and communications information about Marine One, President Obama’s helicopter, which turned up on a computer with an IP address locating it in Teheran, Iran. Oops! The story goes on to explain,

Retired Gen. Wesley Clark, an adviser to Tiversa [the company that made the discovery], said the company discovered exactly which computer the information came from. “I’m sure that person is embarrassed and may even lose their job, but we know where it came from and we know where it went.”

Well, General Clark may be half-right there; no doubt they identified the source. But who knows where else that information now is? Once it’s out there, there is no taking it back.

The bad guys are out there, just checking who’s left the back door unlocked. I doubt this computer in Bethesda is the only one.

Thanks for the tip to my colleague Matt Welsh, who is, by the way, running his own blog. The most recent item is about his experience of blowing his music to bits — that is, freeing his music collection from the plastic CDs that used to contain it.

A few days ago, Roy Blount, Jr., writing as president of the Authors Guild, wrote an opinion piece in the NYT complaining that Amazon, which produces the Kindle book reader, was screwing authors and publishers. The alleged rip-off was this: The new Kindle II has a “talk” button. Push it and it reads the book to you in a computer-generated voice. Pretty much every computer shipped today has the same feature built into its operating system. The intonation isn’t perfect, either on Kindles or on your Windows machine or Mac, but Blount, I would judge, can see much better voices coming, and wants to stop this reading aloud in its tracks. Or rather, stop it long enough to collect a toll.

Blount complains that pushing the talk button turns the written word, which was all you paid for, into a “public performance.” He is magnanimously prepared to make an exception for blind folks. But if your daughter curls up in bed with a Kindle and pushes the talk button, he wants to collect an additional fee¬†for the mechanical voice in your child’s darkened bedroom, beyond what you paid Amazon.

[N]o, the Authors Guild does not expect royalties from anybody doing non-commercial performances of “Goodnight Moon.” If parents want to send their children off to bed with the voice of Kindle 2, however, it’s another matter.

Some buzz was starting to build around what legally constituted a public performance and whether pushing the talk button (on your computer or your Kindle) was really turning the bits from an ebook into an Audiobook. And then all of a sudden, under the cover of darkness of a 5pm Friday press release, Amazon flinched. It added one bit to all the bits that constitute an ebook download to the Kindle II. The one extra bit is set by the publisher, and it tells the Kindle whether the book can be read aloud. If Amazon sends your kindle the ebook with that bit off, pushing the Talk button will do nothing.

The publishing industry is retracing the steps of the music industry. Just as the recording industry is giving up on some of the more absurdly restrictive digital rights management schemes, book publishers are inventing new ones of their own.

Thanks to Chris Soghoian for pointing out the Amazon change of heart. The buzz is continuing about the legalities of this, and about whether the people who really got screwed were those who bought the Kindle expecting that the talk button would work the way it was initially advertised. But the common sense of it is unquestionable. It’s another reminder that when you “buy” a book or a song from a downloading service, you don’t own it. You are being allowed to use it only in ways the service dictates — and the service can even change its mind about that later.

That’s the “verdict of ¬†the herd.” Herdict accumulates input from people all around the world about what parts of the web they can and cannot reach. It’s a beautifully engineered site, but requires broad participation to be useful Put a the link on your toolbar so you can report anything funny. The aggregation of a million funny observations will be profile of global information freedom and information imprisonment.

This cute Youtube video explains it all in two minutes.

Congratulations to Jonathan Zittrain and the team he led at Berkman to bring this project to fruition.

Facebook has lowered the standards it uses to decide what kinds of advertisements to accept. Thanks to Valleyway for this list of “services” ¬†it used to ban but now allows:

* “Work-at-Home” Scams
* “Free Trial” Diet Products that bill your credit card well before the trial period ends, then refuse to let you cancel
* “Free Federal Grant Money” rackets where you pay get a list of ‘secret’ free grant programs (no such thing as a free lunch)
* “Free Ringtone” subscription services (The Florida Attorney General’s Office had a field day with this one)
* “Free IQ Surveys” that feed you a bunch of easily answered questions before you are required to pay to see the results.
* “Cash4Gold” Programs encouraging you to shove your jewelery in an envelope and mail it in for a third of its actual value

And some “make-money-with-Google” schemes that were totally bogus, even according to Google.

Facebook has had a bad run of privacy issues, so bad that they can’t be excused simply as misjudgments by the overgrown adolescents who work at the company. (See¬†Your Facebook Data Belongs to Facebook ‚Äî Now and Forever, for example.)

But this one feels different. It looks like a desperate and unsustainable move to increase short-term revenues. This is the sort of thing a company might do to make its balance sheet look good for a potential investor. Or maybe it has just woken up to the fact that it doesn’t have a business model and is developing one by trial and error. Please, guys, talk to your users before you try stuff like this.

Oh yes. And Facebook’s Chief Privacy Officer, Chris Kelly, is running for the office of Attorney General of California. Perhaps the anyway-sparse adult supervision at Facebook is even scantier these days.

You might think, with all the troubles the country has, that our elected representatives would have better things to do than to keep the results of publicly funded scientific research away from the eyes of the public. You’d be wrong. Represenatitive Conyers from Michigan (of all places where you might think the congresspeople might be frying other fish) has introduced the disingenuously named “Fair Copyright in Research Works Act.” It is awfully hard to understand what the bill says (I am including its text below), but the bottom line is that it would end NIH’s practice of placing the results of NIH funded research on the NIH web site so doctors, other scholars, and the general public can read the papers. Mr. Conyers is carrying the water of scientific publishers which charge extraordinarily high subscription prices which keep going higher as libraries cancel their subscriptions. This is the same practice that has led the Arts and Sciences and Law Faculties at Harvard to adopt “Open Access” rules, by which professors ordinarily retain the right to post copies of their papers on the Harvard open web site.

Why the publishers’ lobbyists are able to put the squeeze on Mr. Conyers I do not know, but would love to.

There is a good, clear explanation of the bill by Robin Peek, writing on Information Today. It goes way beyond the NIH site — it prohibits any other branch of the government from doing something similar.

Here is the text of the bill. The bottom line is that “No Federal agency may, in connection with a funding agreement, impose or cause the imposition of any term or condition that requires the transfer or license to or for a Federal agency of any right provided under copyright law.” That is, the NIH can’t ask, in return for providing millions of dollars of research grants, that it get to put the results of the research up on its web site. Madness. But thank goodness some watchdog group is keeping an eye on the implications of gibberish such as that reproduced below.

H. R. 801

To amend title 17, United States Code, with respect to works connected to certain funding agreements.

IN THE HOUSE OF REPRESENTATIVES

February 3, 2009

Mr. CONYERS (for himself, Mr. ISSA, Mr. WEXLER, Mr. FRANKS of Arizona, and Mr. COHEN) introduced the following bill; which was referred to the Committee on the Judiciary

---

A BILL

To amend title 17, United States Code, with respect to works connected to certain funding agreements.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Fair Copyright in Research Works Act’.

SEC. 2. LIMITATIONS ON FEDERAL GOVERNMENT REGARDING EXTRINSIC WORKS.

(a) In General- Section 201 of title 17, United States Code, is amended by adding at the end the following new subsection:

`(f) Limitations on the Federal Government-

• `(1) LIMITATIONS REGARDING FUNDING AGREEMENTS- No Federal agency may, in connection with a funding agreement–

• • `(A) impose or cause the imposition of any term or condition that–

• • • `(i) requires the transfer or license to or for a Federal agency of–

• • • • `(I) any right provided under paragraph (3), (4), or (5) of section 106 in an extrinsic work; or

• • • • `(II) any right provided under paragraph (1) or (2) of section 106 in an extrinsic work, to the extent that, solely for purposes of this subsection, such right involves the availability to the public of that work; or

• • • `(ii) requires the absence or abandonment of any right described in subclause (I) or (II) of clause (i) in an extrinsic work;

• • `(B) impose or cause the imposition of, as a condition of a funding agreement, the waiver of, or assent to, any prohibition under subparagraph (A); or

• • `(C) assert any rights under this title in material developed under any funding agreement that restrain or limit the acquisition or exercise of rights under this title in an extrinsic work.

• Any term, condition, or assertion prohibited under subparagraph (A), (B), or (C) shall be given no effect under this title or otherwise.

• `(2) CONSTRUCTION-

• • `(A) CERTAIN OTHER RIGHTS NOT LIMITED- Nothing in paragraph (1)(A)(i)(II) shall be construed to limit the rights provided to the copyright owner under paragraphs (1) and (2) of section 106.

• • `(B) NO NEW COPYRIGHT PROTECTION CREATED- Nothing in this subsection provides copyright protection to any subject matter that is not protected under section 102.

• `(3) DEFINITIONS- In this subsection:

• • `(A) EXTRINSIC WORK- The term `extrinsic work’ means any work, other than a work of the United States Government, that is based upon, derived from, or related to, a funding agreement and–

• • • `(i) is also funded in substantial part by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party; or

• • • `(ii) represents, reflects, or results from a meaningful added value or process contributed by one or more other entities, other than a Federal agency, that are not a party to the funding agreement or acting on behalf of such a party.

• • `(B) FEDERAL AGENCY- The term `Federal agency’ means any department, agency, or instrumentality of the United States Government.

• • `(C) FUNDING AGREEMENT- The term `funding agreement’ means any contract, grant, or other agreement entered into between a Federal agency and any person under which funds are provided by a Federal agency, in whole or in part, for the performance of experimental, developmental, or research activities.’.

(b) Applicability- The amendment made by subsection (a) applies to any funding agreement that is entered into on or after the date of the enactment of this Act.

(c) Report to Congressional Committees- Not later than the date that is 5 years after the date of the enactment of this Act, the Register of Copyrights shall, after consulting with the Comptroller General and with Federal agencies that provide funding under funding agreements and with publishers in the private sector, review and submit to the appropriate congressional committees a report on the Register’s views on section 201(f) of title 17, United States Code, as added by subsection (a) of this section, taking into account the development of and access to extrinsic works and materials developed under funding agreements, including the role played by publishers in the private sector and others.

(d) Definitions- In this section:

• (1) EXTRINSIC WORK; FEDERAL AGENCY; FUNDING AGREEMENT- The terms `extrinsic work’, `Federal agency’, and `funding agreement’ have the meanings given those terms in section 201(f)(3) of title 17, United States Code, as added by subsection (a) of this section.

• (2) APPROPRIATE CONGRESSIONAL COMMITTEES- The term `appropriate congressional committees’ means the Committee on the Judiciary and the Committee on Appropriations of the House of Representatives and the Committee on the Judiciary and the Committee on Appropriations of the Senate.

Oncer again, in the name of protecting America’s children from exploitation, Congress is considering a massive increase in data collection about the activities of you, me, and everyone else. Specifically, the SAFETY Act (click for the full text) would require that

A provider of an electronic communication service or remote computing service shall retain for a period of at least two years all records or other information pertaining to the identity of a user of a temporarily assigned network address the service assigns to that user.

That means not just your Internet Service Provider at home, but Starbucks. And the beneficiaries would be not just police looking for pedophiles, but the recording industry looking for people who downloaded music in an airport lounge.

As we have said before (here and here, for example), the Internet threats to child safety have been mischaracterized and exaggerated, and spending resources on programs like this draws resources away from places where they are badly needed, helping troubled children from troubled families. Bills like this are transparent attempts to exploit the child safety issue to ramp up government data collection about innocent citizens, data that will be repurposed and abused once it has been collected. It’s the kind of Big-Brother surveillance proposed in the UK, as we discussed last fall.

Stop this madness. There is zero evidence that this is a sensible solution to the problem the bill claims to be aimed at, and it is an unconscionable invasion of our rights to privacy.

Well, we don’t really know, but a case alleging that was just¬†decided in favor of Google.¬†Aaron and Christine Boring claimed that their privacy had been violated when the Google camera car photographed their house, and asked for a bunch of money. Unfortunately for them, they had an awful case. They presented no evidence they’d been damaged, and they also made no effort to hide their street address when they filed their lawsuit (something that’s easy to do if you are worried about that information being made public). For privacy zealots, not the case with which you want to go forward. It sets a precedent that will make it at least a bit harder for any other plaintiff to prevail.

Frankly, I can’t get excited about this as a privacy violation. But I have to acknowledge that it’s a little weird that people can be sitting in Rwanda looking at what kind of car I drive and whether I keep my bushes trimmed.

I picked up this book because I couldn’t resist the title. (Book titles are a really hard problem.) The subtitle is “Notes on the Nature of Cyberspace.” I liked it and recommend it, but it’s an odd tome, not for everyone.

The key sentence is the first line of the Epilogue. “Though my editor pressed me mercilessly to do so, I never could figure out whether this was a book about Jefferson or a book about cyberspace.” The author, David Post, is a law professor. The book is an entertaining and thoughtful discussion of the intellectual struggles at the founding of the American republic, and how they parallel dilemmas about the nature of the Internet. It’s all personalized around Jefferson, and some of his contemporaries, Hamilton in particular. The first half of the book is just about Jefferson and events of the 18th century; the second half is about the Internet. Though it’s full of fascinating stories, it’s written in the form of a series of law review articles, that is, with many pages more than half footnotes, which are very much worth reading. It wound up taking me much longer to read than the page count or informal writing style would have led me to expect.

Here is the metaphor of the title. Jefferson had an enormous moose stuffed and sent to Paris in pieces, where it was reassembled to the general amazement of the local population. It was a new, American thing that was unimaginable to people of the old world. Like Wikipedia from cyberspace, perhaps.

All of the issues about freedom and control about which Jonathan Zittrain writes so compellingly are set here in the context of larger themes of American history. Plus there is a lot about Jefferson I didn’t know. Excellent and admirable, — if peculiar!

I’ve been sloppy about keeping the Events page up to date. I’ve gone back and included all the events that have already occurred, as well as those yet to happen, including:

1. May 13, 2009, 12:45PM, The University of Hong Kong
2. May 6, 2009, Harvard Club of New Jersey (Maplewood)
3. March 4, 2009, Harvard Club of Princeton, New Jersey
4. February 28, 2009, Harvard Club of Maryland, Baltimore (Harry)
5. February 26, 2009, Safari Books Online, Webcast

Events are listed in reverse chronological order, with upcoming events in boldface, so the last boldface entry is the next thing that is going to happen. Make sense?

The Safari Books Online Webcast will be participatory. Ken, Hal, and I will be talking about Blown to Bits issues, and you will have the opportunity to ask questions or make comments . Follow the link to sign up.