Peter Black's Freedom to Differ

The end?

Last week Duncan Riley lamented the end of privacy:

A new first for Ustream.tv and possibly the net, a birth was streamed live to the world today from West Pennsylvania. At the time of writing I can’t find a recording of the birth, with only a video of the child post delivery available, but from all accounts the whole thing was shown.

This is the end. To quote Jim Morrison:

This is the end
Beautiful friend
This is the end
My only friend, the end

Of our elaborate plans, the end
Of everything that stands, the end
No safety or surprise, the end
Ill never look into your eyes…again

We have reached the point where nothing left is sacred, where our most intimate moments are now fair game for the world at large.

...

We have reached the point of no return. From Twittering a birth to streaming it live, the floodgates are open. Where there is a willing audience, there will be those willing to expose themselves to the world at large, and as our lust for knowing and seeing all continues, so to will the frequency of everything exposed online.

The remaining question for those in social media is whether we embrace the change and ride the wave, or we rally against it. Where today is the line between privacy and sharing? Does sharing some things open the door to sharing all, or is there still a place for what perhaps can be described as antique ideas of private moments.

What ever the answers, remember September 2, 2008 as the day that the last remaining barrier came down between personal and public. The tipping point where a sea of copycats and unrestricted life streaming that will now surely follow

Read more here (The Inquisitr).  Although this is an extraordinary story, I think it is an exaggeration to say that this is the end of privacy.  It does, however, represent a phenomenon I've been observing for some time, namely that society's conception of privacy is changing.  Digital natives (and the older, early adopter crowd) don't seem to value or protect their privacy in the same way that people did a generation ago.  Now you can argue whether this is a good or a bad thing, but ultimately that debate is beside the point as the real challenge this trend presents is the need for our laws to reflect these new notions of privacy.  Rather than desperately trying to cling to an outdated concept of what privacy is and impose outdated legal and moral standards on younger generations, our laws and moral judgments need to adapt to this new paradigm.

Links for Friday 5 September

Some links from the past few days:

• Chief justice open to TV cameras in courtrooms (The Age) - "AUSTRALIA'S new top judge has indicated he is personally open to the idea of High Court decisions being televised as part of broader efforts to help the community understand the work of the nation's highest court.  Chief Justice Robert French, who was sworn in on Monday, told The Age in an interview that there was "a kind of evolution happening" in thinking about allowing cameras into courts."
• Is podcasting only for the young? (Ars Technica) - "Podcasting continues to grow at a rate that's faster than a snail's pace, but not by much. The Pew Internet and American Life project reports that almost one in five Internet users (19 percent) say they have saved a podcast for later listening. That's up from 12 percent in Pew's August 2006 survey.  But the latest study also concedes that "podcasting has yet to become a fixture in the everyday lives of Internet users, as very few Internet users download podcasts on a typical day." Just 3 percent do so, in fact. And there's a real generational divide here of which media trend watchers should take heed. After 30, podcasting download rates take a dip; after 50, they take a serious dive; after 65, forget it. "
• The Last Hurrah (Washington Post) - "[Brit] Hume traffics in wry humor and droll observation, a low-key style that belies the voracious interest he has always had in politics. But that appetite has faded, which is why the 32-year television veteran has just anchored his last convention."
• The Sarah Palin Selection: Why McCain's Inexperienced Running Mate Falls Short of Meeting the Implicit Constitutional Qualifications For Vice Presidents (FindLaw's Writ) - "Given the fact that the 2008 GOP standard-bearer John McCain is seventy-two years of age, his selection of an inexperienced Vice Presidential running mate, Alaska Governor Sarah Palin, has again focused attention on the process and procedures for selecting vice presidents - or, to put it more bluntly, the utter lack of process or procedures in selecting the person who is a heartbeat away from the presidency. McCain, not unlike others before him, selected a less than fully vetted running mate for political reasons. That is surely a concern for voters to think over in the upcoming election - but it raises a systemic concern, too, for the long run ... While the Constitution does not expressly set forth qualifications for the vice-presidency, it strongly implies them --- and Palin falls short."
• Lewd Hudson makes waves on Facebook (Ninemsn) - "Hockeyroos captain Nikki Hudson has apologised for a sexually explicit joke she made about herself on Facebook after it made its way into the public domain."
• A New Battle Is Beginning in Branding for the Web (New York Times) - "Recently, a new front has opened in the Internet branding wars.  It lies beyond putting trademarks on new businesses, Web site addresses and online logos. Now, companies want to slap a brand on still vaguely defined products and services in the uncharted ephemera of cyberspace — the computing cloud, as it has come to be known."
• Google on Chrome EULA controversy: our bad, we'll change it (Ars Technica) - "Google's new web browser Chrome is fast, shiny, and requires users to sign their very lives over to Google before they can use it. Today's Internet outrage du jour has been Chrome's EULA, which appears to give Google a nonexclusive right to display and distribute every bit of content transmitted through the browser. Now, Google tells Ars that it's a mistake, the EULA will be corrected, and the correction will be retroactive."
• A City Tries to Stop a Woman from Linking to Its Website: Why Most Challenges to Links Will Not Succeed, and What the Rare Exceptions May Be (FindLaw's Writ) - "Sheboygan, Michigan resident Jennifer Reisinger alleges that after she created a link from her own website to the website of the city's police department, the City Attorney issued a "cease and desist" order commanding her to remove the link. Reisinger claims that the motive was retaliation: She had supported recalling Sheboygan Mayor Juan Perez, and alleges that Perez was behind the "cease and desist" order.  Reisinger eventually filed a federal lawsuit challenging the "cease and desist" order. Although the city has withdrawn its demand that she de-post her link, Reisinger seeks $250,000 in compensatory damages, unspecified punitive damages, and unspecified declaratory relief, alleging that city personnel violated her First Amendment rights.  In this column, I will discuss why I believe Reisinger will, and should, win her case. Generally, linking is fair game from a legal perspective - including linking to public and official websites. After all, linking is not much different from including a URL in an email, handout, or poster - and all of these are plainly forms of First-Amendment-protected expression.  "

Links for Tuesday 1 September

These intellectual property themed links are once again from the month of August:

• An IP Checklist for Bloggers (v.1.1) Colette Vogele's blog - Colette Vogele has come up with a one page IP checklist for bloggers.
• YouTube Praises Dismissal of Copyright Suit Against Veoh (Bits) - "A federal court in California late Wednesday threw out a copyright infringement lawsuit filed by the IO Group, an adult entertainment company, against Internet video sharing site Veoh Networks, saying that Veoh was protected by the safe harbor provisions in the Digital Millennium Copyright Act, or DMCA ... Google wasted no time in praising the decision. “It is great to see the Court confirm that the DMCA protects services like YouTube that follow the law and respect copyrights,” Zahavah Levine, YouTube’s chief counsel, said in a statement."
• Professor Slams European Commission For Ignoring The Evidence On Copyright (Techdirt) - "We were pretty surprised a few weeks back when the European Commission endorsed a plan for copyright extension, despite ample evidence that retroactive copyright extension is a bad idea. Soon after that announcement, a group of European academics sent a letter warning that such extension would harm innovation. The academics keep piling on, as Professor Bernt Hugenholtz, the director of the University of Amsterdam's Institute for Information Law (IViR) has sent an open letter to the Commission blasting them for ignoring all of the research showing that copyright extension is bad."
• Judge: Copyright Owners Must Consider 'Fair Use' Before Sending Takedown Notice (Wired) - "In the nation's first such ruling, a federal judge on Wednesday said copyright owners must consider "fair use" of their works before sending takedown notices to online video-sharing sites. The 10-page decision (.pdf) came a month after Universal Music told a San Jose, California federal judge that copyright owners need not consider the "fair use" doctrine before issuing takedown notices requiring online video-sharing sites to remove content."
• But What If A Takedown Notice Isn't Actually A DMCA Takedown? (Techdirt) - "We already covered the judge's ruling about how copyright holders need to consider fair use before sending a DMCA takedown notice, but there's another part of Universal's position in this case that has been widely ignored (even by the judge in the case), but which Ethan Ackerman wisely calls attention to: Universal claims that the takedown letter doesn't violate the DMCA because it wasn't actually a DMCA takedown.  Instead, they said it was just a friendly "request." This may seem like a silly assertion or, at best, a minor side point, but it could become quite important. The DMCA has some very specific conditions that those sending takedowns need to meet -- but there's nothing really stopping anyone from sending a request that isn't specifically a DMCA takedown notice. For copyright holders, this would remove some of the power of the takedown notice, as it wouldn't require the service provider to react, like a DMCA notice does. However, if rulings like this one stand, adding some amount of liability to copyright holders sending DMCA takedown notices, some may actually find it safer to send non-DMCA takedowns on the assumption (probably correct) that most service providers will treat them exactly the same as a DMCA takedown. In other words, would copyright holders "opt-out" of the DMCA terms in order to avoid that liability? It will be worth watching."
• Copyright exceptions only on just terms? (Inchoate) - "Though, sadly, I don’t get to as much constitutional law as I would like to these days (I don’t work here), I think some of the more recent High Court decisions suggest that the acquisition on just terms issue (as seen in The Castle) may not be a big issue. In particular, there are a couple of recent decisions that make clear that not every curtailment or restriction of a right is an acquisition of property within the meaning of section 51(xxxi)."
• YouTube user sues Google for his slice of the traffic (Ars Technica) - "Who would've thought that a few thousand daily views of online sketch videos could translate into fame and the web-based financial success that comes with it? Benjamin Ligeri, a disgruntled YouTube user, apparently did, because he's suing Google and various employees for not letting him into YouTube's revenue-sharing program."
• File Sharer Settles with RIAA for a Whopping $756 a Song (Wired) -"A Bronx woman is agreeing to pay the Recording Industry Association of America $6,050 to settle allegations she purloined eight tracks on the file sharing network Kazaa. That's $756.25 a song from artists (.pdf) DMX, Lenny Kravitz, Eagles, Sade, Ready For the World, Uncle Sam and Tamia ... The woman's attorney, Ray Beckerman, said Monday that Barker decided to settle. "The client makes the decision. I would have loved to litigate this," he said. "I think we had good defenses.""
• How Copyright Is Holding Back The Creative Class (Techdirt) - "While not enough people recognize it, the real purpose of copyright law is to provide an incentive for the creation of more content. The government felt that there was a market failure, where not enough "content" would be produced without a limited monopoly, and thus, copyright was born. However, that happened back in the day when creating content wasn't easy. You pretty much had to go through a professional process. These days, thanks to new technologies, creating content is exceptionally easy -- and thus, a big part of the very basis for copyright no longer makes sense. We're drowning in content -- and it's not because of the "incentive" of copyright. There are plenty of incentives for creating content these days and very few have anything to do with copyright."

Blog Day

Although I am a day late for Blog Day 2008, I thought I'd nonetheless join in.  This is what Blog Day is all about:

What is BlogDay?

BlogDay was created with the belief that bloggers should have one day dedicated to getting to know other bloggers from other countries and areas of interest. On that day Bloggers will recommend other blogs to their blog visitors.
With the goal in mind, on this day every blogger will post a recommendation of 5 new blogs. This way, all blog readers will find themselves leaping around and discovering new, previously unknown blogs.

What will happen on BlogDay?             

One long moment on August 31st, bloggers from all over the world will post recommendations of 5 new Blogs, preferably Blogs that are different from their own culture, point of view and attitude. On this day, blog readers will find themselves leaping around and discovering new, unknown Blogs, celebrating the discovery of new people and new bloggers.

And so these are my five recommended blogs:

• The Margins of Error - Hugh Atkin is probably Australia's leading creator of humourous political videos and this blog contains his latest videos, often with a revealing personal commentary on the making of or idea for the video.
• Tama Leaver dot Net - Tama Leaver is one of Australia's most insightful digital culture academics and Tama uses this blog to share his thoughts on digital culture as well as a great collection of links. 
• skepticlawyer - skepticlawyer, aka Helen Dale, has been joined by Legal Eagle and together they have created a simply wonderful blawg that provides an interesting and occasionally provocative look at legal and political issues from their own unique perspectives.
• Written and Directed by James Tinniswood - Recent UQ law graduate James Tinniswood blogs about movies and shares his quirky observations while showcasing his entertaining YouTube videos and songs. 
• hello.com.au - I've included this tumblelog in my list to try and encourage hello.com.au's creator Anthony Dever to keep going with this little side project.  hello.com.au contains a fun mix of news, quotes, links and videos.

Enjoy!

Following Gustav

With Hurricane Gustav approaching the Gulf Coast it has been interesting to see how the internet is being used to disseminate news and information.  Blogs, Twitter, forums, Flickr, Utterz and a range of other social media are all helping to cover the Hurricane as it nears the US.  While this phenomenon isn't new I am very impressed by how one person has harnessed Ning to aggregate all of this information from a wide varity of sources and create an online community for coordinating volunteer knowledge-sharing related to the Hurricane.  Check out the Gustav Information Center on Ning here.

The World Isn't Clear Cut

As someone who used to do a lot of debating at school and university, it was nice to see this promotional video for the Griffith Organised Debating Society (GODS) on Q&A last week:

What is Twitter?

My colleagues and friends tend to ask me a lot of tech questions, but probably the one question I get asked more than any other is "what is Twitter?".  It also probably the hardest question to answer because you either "get" Twitter and use and love it, or you don't don't.  This was particularly evident at the BTUB (Brisbane Twitter Underground Brigade) meet-up on Friday night where a bunch of Brisbane-based Twitter users descended on The Ship Inn at South Bank and our friendly waitress asked us where we were all from.  One smart ass replied "we're from the internet" and then proceeded to try and explain without much success what Twitter is.  She just looked at us with a mix of bewilderment and pity.

So, how would I describe Twitter?  I usually describe it as a micro-blogging tool where you post short updates - 140 characters or less - describing what you are doing.  When that explanation gets greeted with confused looks, I say it is part blog, part sms and part instant messaging.  At that point I usually give up.

If you're still curious about what Twitter is, here are some other attempts to describe what it is.

From Twitter's own FAQ's:

What is Twitter?

Twitter is for staying in touch and keeping up with friends no matter where you are or what you’re doing. For some friends you might want instant mobile updates—for others, you can just check the web. Invite your friends to Twitter and decide how connected you want you to be.

From Wikipedia:

Twitter is a free social networking and micro-blogging service that allows its users to send and read other users' updates (otherwise known as tweets), which are text-based posts of up to 140 characters in length.

Updates are displayed on the user's profile page and delivered to other users who have signed up to receive them. The sender can restrict delivery to those in his or her circle of friends (delivery to everyone being the default). Users can receive updates via the Twitter website, instant messaging, SMS, RSS, email or through an application such as Twitterrific or Facebook. For SMS, four gateway numbers are currently available: short codes for the United States, Canada, and India, as well as a United Kingdom number for international use. Several third parties offer posting and receiving updates via email.

As of July 2008, over 2,200,000 accounts were registered.

And here is a YouTube video explaining Twitter in Plan English:

If you have a great way to explain what Twitter is, please comment below and let me know!

Links for Sunday 31 August

For over a year I used to post to this blog Daily News Links, however I stopped as it was taking too much time to put it together each evening.  As part of my attempt to rejuvenate this blog I've decided to resurrect this feature in a slightly different form.  I plan to regularly post (although not necessarily daily) links and extracts to blogs and news stories that for one reason or another have captured my attention.  So here are some links for Sunday 31 August (which are actually a collection of links from the month of August):

• Google, 10 years in: big, friendly giant or a greedy Goliath? (The Guardian) - "Ten years ago next month, in an innocuous suburban garage, Page and Brin, two geeky students at Stanford University, founded a company called Google. They would go on to create what is regularly voted the world's top brand, earn accolades as the world's best employers and become billionaires many times over. They would also, say their critics, cut a swathe through the laws of copyright, threaten to devour media like a 'digital Murdoch' and harvest more of our secrets than any totalitarian government - smashing the core certainties of advertising executives, book publishers, newspaper owners, television moguls and civil libertarians."
• Online Advertising: The price of a 'free' online world (Microsoft Australia Government Affairs) - "So, while the Internet has truly democratised information and levelled the playing field of access, it has yet to liberate the one constant that has driven media services for the last century – the need to pay for it. More than ever, advertising is the fuel that is driving the information economy with the millions of Web sites, large and small, relying on advertising to pay their way. Unlike the traditional media, though, one of the true benefits of the online model is that consumers are now enjoying much more tailored and immediate experiences with greater relevance than offline media."
• The Future of Free Expression Part I and Part II (Balkinization) - In a two part post, Jack Balkin looks at the future of free expression: "In the Information Age, you would think, there would be no more important part of the Constitution than the First Amendment. After all, free speech guarantees should have a great deal to do with a knowledge economy, and a world in which wealth and power increasingly depend on information technology, intellectual property and control over information flows.  For some time now, I have been thinking about how our understandings of the First Amendment are likely to change in a digital age. Gradually, I have come to the conclusion that we face a transition of enormous irony. At the very moment that our economic and social lives are increasingly dominated by information technology and information flows, the First Amendment seems increasingly irrelevant to the key free speech battles of the future. Or, more precisely, the judge made doctrines that I teach in my First Amendment classes seem increasingly irrelevant."
• Malice in Wonderland (The Age) - "Ideas about privacy — and the need to protect it — have changed radically in recent years. While increasing numbers of people, especially the young, have been sharing their life experiences and personal details online, privacy commissioners and law reformers have been lobbying for more stringent laws to protect individual privacy ... But popular culture exerts pressure in the opposite direction, championing the "ordinary" person's access to fame — often achieved through intimate personal exposure."
• Web Censorship Is So Bad in Turkey That Blogs Are Shutting Themselves Down In Protest (TechCrunch) - "It doesn’t take much to get your Website banned in Turkey.  Pretty much any complaint to a lower court can get a Website blocked in the country. Websites including YouTube, DailyMotion, Alibaba, Slide.com, and some Wordpress blogs have all been banned, usually because of some purported slight to the Turkish government or Mustafa Kemal Ataturk. (The Youtube ban was the result of a sophomoric video claiming Ataturk was gay). The problem has gotten so bad that Turkish blogs are now banning themselves in protest."
• Government 2.0 (Mashable) - In a series of posts Mark Drapeau considers Government 2.0: Government 2.0: An Insider’s Perspective, Government 2.0: A Theory of Social Government and Government 2.0: Being Individually Empowerful.
• Commission on Presidential Debates Boldly Goes to Web 0.2, Launches a Dud (techPresident) - "I don't fault MySpace for this travesty so much as I fault the Commission, for lack of imagination and courage. Recall that at least the MySpace/MTV forums during the primaries included real-time feedback from viewers that the audience could see, and the candidates even saw the aggregated responses, in real time. Also recall that Google/YouTube and the City of New Orleans have been offering their services for a candidates forum on September 18, and surely something creative could have come of that. What they're offering us here is little more than live video streaming, which is like, so, year 2000."
• Blogging 2.0 Meme Doesn't Go Far Enough (/message) - "Duncan Riley is promulgating 'Blogging 2.0' to represent what I consider the erosion of social media by their historic communities under the inexorable rise of flow applications, like Twitter, Friendfeed, Socialmedian, and Feedly (to name only a few).  I think his description of what is happening is overly simplistic, and the appropriation` of the term 'Blogging 2.0' is a jingoistic attempt to leverage the "paradigm shift" magic of the 2.0 suffix."
• Businessweek article on Stephanie Meyer + using social networks to sell millions of books (The Utube Blog) - "So what happens when Web 2.0 hits the traditional book world?  Well, Stephanie Meyer, the 34 year old author of the absurdly popular Twilight vampire books (a kinds of a cool version of Harry Potter), has the answer.  You can sell millions of books.  Read this week’s Businessweek article.  All book publishers should be studying and copying this model."
• Essay: New Media in Old Bottles? (Balkinzation) - "I have posted on SSRN an essay entitled, "New Media in Old Bottles? Barron's Contextual First Amendment and Copyright in the Digital Age," which explores in more depth some of the themes that I have discussed in my posts. In the essay I begin with Jerome Barron's call, four decades ago, for access to media as a First Amendment right as a springboard for examining copyright and its role in shaping public discourse in the digital arena. I focus, in particular, on (1) incumbent mass media's untoward use of copyright as a vertical restraint to stifle the new media that provides platforms for peer speech; (2) copyright's continuing part in underwriting traditional media, which I argue is a salutary function that stands in some tension with the media's use of copyright to suppress new media competition; and (3) copyright's potential for enabling powerful new media, like Google, to threaten expressive diversity in the digital age in much the same way that incumbent media has overwhelmingly dominated public discourse in the print and broadcast era. The full abstract and essay can be found here."
• Macquarie University opens up access to its academics' research papers (Australian IT) - "MACQUARIE University has joined the small club of Australian institutions that require academics to make their research papers freely available over the Internet. In 2004 the Queensland University of Technology became the first Australian institution to usher in a mandatory open access policy. Charles Sturt University followed suit last January."
• Defamation and the Internet: How the Law Effectively Allows Bloggers to Take Risks Big Media Companies Can't, and How Companies Can Work to Level the Playing Field (FindLaw's Writ) - "Increasingly, print journalism is struggling, as advertising dollars move to the Internet, subscriptions decrease, and newspapers find themselves competing with their own websites – which offer much of the same content the print editions do, free of charge – as well as other websites and blogs. Ironically, too, one common way in which newspapers have responded to money pressures is to make cuts in newsroom staff – and thus to decrease their comparative advantage vis-à-vis bloggers when it comes to offering high-quality content. As a result, it is now quite easy to imagine a near-future world in which print newspapers do not exist at all. In this column, I’ll focus on one aspect of this important trend: the way in which it will likely alter the legal landscape regarding defamation and, in turn, affect free speech. "
•  Some Media Companies Choose to Profit From Pirated YouTube Clips (New York Times) - "After years of regarding pirated video on YouTube   as a threat,  some major media companies are having a change of heart, treating it instead as  an advertising opportunity ... So far, the money is minimal — ads appear on only a fraction of YouTube’s millions of videos — but the move suggests a possible thaw in the chilly standoff between the online video giant and media companies. Getting into the good graces of media entities is seen as critical to the future of YouTube, which has struggled to show appreciable revenue for video ads."
• Govt: Cyberbullying is a New Phenomenon, as is Social Networking (Wall Street Journal Law Blog) - "Cyberbullying is a relatively new phenomenon, as is social networking. It is, therefore, not surprising that there have been relatively few prosecutions in this area. . . . the statute does not threaten to criminalize widespread conduct. Because the government must show that defendant acted with the requisite criminal scienter, there is no risk of criminalizing innocent, let alone negligent behavior."

Writer's block

Last month I purported to resume blogging after a liberating six week hiatus from blogging (see here and here).  However, after an initial flurry of posts, this is my first post to this blog in about three weeks.  This wasn't a planned blogging break, rather it happened due to a confluence of several factors - I've been busy working on the curriculum review of the constitutional law unit for 2009 as well as trying to finish off a few other research projects, plus I've found that I've been using twitter, my tumblelog Freedom to Dither and Facebook more and more.  However more than anything else I've been experiencing a bit of writer's block recently, both when it comes to blogging and my academic writing.  So I've decided to try and break through this barrier by setting aside a few hours today for blogging.  So stay tuned ...