Peter Black's Freedom to Differ

Finally! A politician worth following on Twitter

Politico's Ben Smith explains why we should all be following US Senator Claire McCaskill on Twitter:

Many politicians are now on Twitter, but few are posting stream-of-consciousness updates from their BlackBerrys, and the telegraphic press releases that compose most official tweets can be a bit wearing.

So Sen. Claire McCaskill's feed, which she began, communications director Adrianne Marsh tells me, as a way to give constituents a running glimpse of the inaugural festivities ("Scalia in a really weird hat," read one entry), is pretty remarkable: obviously authentic, somewhat candid and much in the spirit of the new tech age.

"It gives me a little bit of heartburn, but it is what it is," said Marsh, who said McCaskill uses the program TinyTwitter on her personal Blackberry. "That's really the stream of consciousness way she takes in these events."

Read it here.  Senator McCaskill's use of Twitter is a much more interesting and revealing use of Twitter than that of any Australian politician I can think of.

Joe Trippi at QUT: "Online campaigning in the US Presidential election"

As part of Joe Trippi's visit to Australia thanks to Microsoft Australia, he will be speaking at QUT on Thursday 5 March:

QUT Faculty of Law Free Public Lecture Series 2009
Presents
 
Mr Joe Trippi
Trippi & Associates (USA)
 
Online campaigning in the US Presidential election
 
Thursday 5 March 2009
 
The Gibson Room
Level 10, Z Block
QUT Gardens Point Campus
 
5.30 pm Refreshments
6.00 pm Lecture commences
7.00 pm Lecture concludes

The Speaker
Joe Trippi is the man who introduced the internet into US presidential campaigning and is widely-credited with having ‘re-invented campaigning’.

Much of the success of Barack Obama’s presidential campaign has been attributed to the innovative use of the internet to rally grassroots support.

As National Campaign Manager for Howard Dean’s presidential campaign in 2004, Joe pioneered the use of online technology to organise what became the largest grassroots movement in presidential politics.

As a campaign manager, Joe has run presidential, senate, gubernatorial and mayoral campaigns in the US. His innovations have brought fundamental change to the electoral system and have become the model for smart campaigning.

Joe Trippi has been profiled in GQ, Wired, Fast Company, The New Republic and The New York Times Magazine. He is a  political analyst for the 24-hour US cable news channel MSNBC and a former Harvard University fellow. He currently heads the Washington, DC political consultancy, Trippi & Associates.

Joe is the author of “The Revolution Will Not Be Televised: Democracy, the Internet and the Overthrow of Everything,” the story of how his revolutionary use of the Internet and an impassioned, contagious desire to overthrow politics as usual grew into a national grassroots movement and changed the face of politics, and indeed many aspects of American life, forever.

Joe Trippi’s visit is supported by Microsoft Australia.

Registration: Register by 27 February 2009 at qutlawpubliclectures@qut.edu.au

Registered attendees may claim 1 CPD point for the Queensland Bar Association and Queensland Law Society.

Second Annual Microsoft Politics & Technology Forum: Online Campaigning

On Thursday 26 February, Microsoft will be hosting their second annual Politics and Technology Forum.  The keynote speaker this year is Joe Trippi.  Once again it looks as though it will be an excellent event:

Join government, business leaders and political bloggers at the second annual Microsoft Politics & Technology Forum.

On this informative morning, Keynote Speaker Joe Trippi details the impact of new technologies on modern politics. Heralded by the US press as the man who “reinvented campaigning”, Joe has run Presidential, Senate, Gubernatorial and Mayoral campaigns. His innovations have brought fundamental change to the electoral system and have become the model for online campaigning.

There will also be a Q&A panel discussion, new technologies will be demonstrated, and some revealing insights and statistics around Australian digital behaviour will be shared.

We are delighted to welcome Lindsay Tanner MP, Minister for Finance and Deregulation, The Hon Malcolm Turnbull MP, Leader of the Opposition to this exciting event.

RSVP here. Note, however, that before you start booking flights to Canberra, Microsoft is organsing events in other capital cities where Joe Trippi will akso be speaking.  Stay tuned for details of those other events ...

Update: Microsoft's Australian Government Affairs Blog has more information on the event, including this invitation:

While our keynote and discussion will be invaluable to anyone interested in democracy and communication in the first half of this century I also wanted the forum to be an opportunity for a look at practical examples of new technology tools.

To that end I'd like to invite any developers, web 2.0 or social networking activists with ideas for, or examples of, on-line tools that can be used in political campaigning and who would like to demonstrate their ideas (as a proof of concept or developed application) to the attendees at the forum to contact me.

I'm not interested in how the tools were or are developed, what platform or language the tool was or would be developed with as long as the idea is original, is yours, and you are prepared to demonstrate the concept or tool to the audience. It would be preferable if the idea were capable of wide usage but that is a matter for you.

• Up to three ideas will be selected for demonstration.
• Financial support will be provided to get to Canberra.

Contact me:

If you have an idea or you have developed a tool that you think will support on-line campaigning and you want to demonstrate it to our federal political campaigners and bureaucrats send me an email - simone@microsoft.com

Proposals will need to be with me by 16 February and you will need to have the tool ready for demonstration on the 26th of February in Canberra.

Read more here.

Lose-lose: The New York Times and GateHouse Media settle their dispute over linking

The New York Times Company and GateHouse Media have settled the copyright infringement suit Gatehouse Media filed last month:

GateHouse had accused The Boston Globe and its website, Boston.com, both of which are owned by The New York Times, of violating copyright law by posting material without permission from WickedLocal.com, a GateHouse website covering small towns in Massachusetts.

GateHouse, which is based in Fairport, New York and operates hundreds of daily newspapers and local websites, was objecting to the publication on Boston.com of headlines and lead paragraphs of stories from WickedLocal.com.

The case was being closely watched by many in the media industry because of potential legal implications for the common practice of linking between news sites and the use of links to content on other sites by news aggregators.

The New York Times had argued after the lawsuit was filed last month that linking to other websites is widespread and that Boston.com provided a link back to the original stories on WickedLocal.com.

A trial had been scheduled to begin in a US District Court in Boston on Monday but an agreement was reached over the weekend.

Under the terms of the settlement, neither party admitted any wrongdoing and in the absence of a court ruling, the case failed to bring any legal clarity to the situation.

Under the settlement, GateHouse agreed to put in place technical safeguards that would prevent Boston.com from automatically "scraping" material from GateHouse sites and Boston.com agreed not to try to circumvent the barriers.

Boston.com would also discontinue its use of RSS feeds from GateHouse sites and take "reasonable commercial steps" to remove headlines and lead paragraphs of GateHouse stories from Boston.com by March 1.

But the agreement did allow both websites to continue providing links to one another -- so long as they did not do so through RSS feeds or "scraping."

Read more here (from Google News).  Download a copy of the settlement here.   Techdirt's Mike Masnick sums up why this settlement isn't good news for anyone:

It's bad for the NY Times, because in settling they've almost guaranteed that plenty of other companies will now come seeking similar "settlements." It's bad for GateHouse Media because in winning "the battle" they're losing the war. The NY Times/Boston Globe will no longer be sending them the traffic they were getting in the past. It's hard to describe the level of pure cluelessness that goes into actively turning away the kind of traffic a major media publication can provide. It's bad for readers of both sites, because it limits the usefulness of the content they get. And... most importantly, it's bad for everyone in failing to have a hard and fast precedent set that linking to such sites and including the headline and a snippet are clearly fair use. What a shame.

Read more here.

Comparing government copyright on the web: from whitehouse.gov to pm.gov.au

One feature of US President Barack Obama's relaunched whitehouse.gov website was the inclusion in the copyright notice the provision that all third-party content on the site is licensed under a Creative Commons Attribution 3.0 License:

Copyright Notice

Pursuant to federal law, government-produced materials appearing on this site are not copyright protected. The United States Government may receive and hold copyrights transferred to it by assignment, bequest, or otherwise.

Except where otherwise noted, third-party content on this site is licensed under a Creative Commons Attribution 3.0 License. Visitors to this website agree to grant a non-exclusive, irrevocable, royalty-free license to the rest of the world for their submissions to Whitehouse.gov under the Creative Commons Attribution 3.0 License.

Read it here.  Canadian copyright scholar Michael Geist compared the copyright notice on whitehouse.gov to the Prime Minister of Canada's copyright notice:

The material on this site is covered by the provisions of the Copyright Act, by Canadian laws, policies, regulations and international agreements. Such provisions serve to identify the information source and, in specific instances, to prohibit reproduction of materials without written permission.

Non-commercial Reproduction

Information on this site has been posted with the intent that it be readily available for personal and public non-commercial use and may be reproduced, in part or in whole and by any means, without charge or further permission from the Office of the Prime Minister. We ask only that:

• Users exercise due diligence in ensuring the accuracy of the materials reproduced;
• The Office of the Prime Minister be identified as the source department; and,
• The reproduction is not represented as an official version of the materials reproduced, nor as having been made, in affiliation with or with the endorsement of the Office of the Prime Minister.

Commercial Reproduction

Reproduction of multiple copies of materials on this site, in whole or in part, for the purposes of commercial redistribution is prohibited except with written permission from the Government of Canada's copyright administrator, Public Works and Government Services Canada (PWGSC). Through the permission granting process, PWGSC helps ensure individuals/organizations wishing to reproduce Government of Canada materials for commercial purposes have access to the most accurate, up-to-date versions. To obtain permission to reproduce materials on this site for commercial purposes, please contact:

Public Works and Government Services Canada
Publishing and Depository Services
350 Albert Street, 4^th Floor
Ottawa, Ontario
Canada
K1A 0S5 or
copyright.droitdauteur@pwgsc.gc.ca

Giest concluded that:

While this is better than some other Canadian government departments (who require permission for all uses), it is still not good enough.  First, Canada should drop crown copyright so that there is no copyright in government-produced materials.  Second, there is no need for a distinction between commercial and non-commercial - Canadians should be free to use the government-produced materials for either purpose without permission.  Third, third-party materials, which are Creative Commons licensed in the U.S., are subject to full restrictions in Canada.  Admittedly few people take the time to read these terms and conditions, yet they send a message about the openness, transparency, and a commitment to public engagement with government.  The White House has changed its approach and now the Prime Minister should do the same.

Read more here.  Geist's post made me curious as to what the position would be in other countries with a similar copyright and political system, so I looked at the respective websites for the Prime Minister of Britain and the Prime Minister of Australia.  This is the copyright notice for number10.gov.uk:

Material on this site is subject to Crown copyright protection unless otherwise indicated. The material may be downloaded to file or printer without requiring specific prior permission. Any other proposed use of the material is subject to the approval of Her Majesty’s Stationery Office (HMSO).

Applications should be made to:

HMSO
St Clements House
2 - 16 Colegate
Norwich
NR3 1BQ
United Kingdom

Tel: +44 (0) 1603 621000
Fax: +44 (0) 1603 723000

Read it here.  This policy is even more restrictive than the copyright notice on the Prime Minister of Canada's website.  First, it provides that all material on the website is subject to Crown copyright.  Second, this policy does not allow for reproduction for non-commercial use; rather it requires premission regardless of whether the use is for commercial or non-commercial purposes.  A further disappointing feature of this copyright notice is that applications for permission cannot be made online or on email.

Fortunately, the copyright statement on the website of the Prime Minister of Australia is not as restrictive:

The material on this website is copyright. You may download, display, print and reproduce (copy) this material in unaltered form only (retaining this notice) for your personal, non-commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968, all other rights are reserved. If you wish to republish any material on your own website or in a publication of any description, please see further guidance under Republishing Material from this Website below.

Requests and inquiries concerning reproduction and rights should be addressed to: 

Commonwealth Copyright Administration
Attorney General's Department
Robert Garran Offices
National Circuit
BARTON ACT 2600

or posted at http://www.ag.gov.au/cca.

Republishing Material from this Website

All the material on our website is subject to copyright. You must not:

• Unlawfully use any of the material from this site, or
• Pass off content from this site as your own. This includes copying sections or re-using parts of the site under this pretense.

If you wish to republish or quote any material from the Prime Minister's website in a publication of any description you must seek written permission from the Department of the Prime Minister and Cabinet which manages this website. Written enquires should be directed to:

Publishing Services Manager
Department of the Prime Minister and Cabinet
PO Box 6500
CANBERRA ACT 2600
Australia

Read it here.  This notice is quite similar to the Canadian notice in that it allows personal, non-commerical use, but does not go anywhere near as far the new whitehouse.gov website.  Presuambly nations like Canada, Britan and Australia share Obama's ideal of transparency and accountability in government, yet these values are not yet reflected in their copyright policies. 

As a post on the Creative Commons website suggests, the rest of the world should follow the lead site by Obama and whitehouse.gov:

While the decision to use CC on Whitehouse.gov may appear uncontroversial in light of the fact that US federal works are not subject to copyright protection, very few other countries share this policy ... This is precisely where Creative Commons can help. Obama’s far sighted choice should serve as an example for other governments around the world: now is the time to start sharing.

Read it here.

White House exempts YouTube from privacy rules

CNET's Chris Soghoian has a fascinating post on an under-reported early decision of the Obama administration:

The new Web site for Obama's White House is already drawing attention from privacy activists and tech bloggers. While the initial focus has been on the site's policies relating to search engine robots, a far more interesting tidbit has so far escaped the public eye: the White House has quietly exempted YouTube from strict rules relating to the use of cookies on federal agency Web sites.

The new White House Web site privacy policy promises that the site will not use long-term tracking cookies, complying with a decade-old rule prohibiting such user tracking by federal agencies. However, the privacy policy then reveals that Obama's legal team has exempted YouTube from this rule (YouTube videos are embedded at various places around the White House Web site).

While the White House might not be tracking visitors, the Google-owned video sharing site is free to use persistent cookies to track the browsing behavior of millions of visitors to Obama's home in cyberspace.

No other company has been singled out and rewarded with such a waiver.

...

For the past 10 years, federal agencies have been prohibited from using tracking cookies on their Web sites, except in a few special cases. The Office of Management and Budget rule M-03-22 states that:

"Agencies are prohibited from using persistent cookies or any other means (e.g., web beacons) to track visitors' activity on the Internet except .... [when there is] a compelling need."

The question we must now focus on is this: Is the need for Obama to use embedded videos hosted by YouTube (and not, say, another company's video-streaming platform that does not force cookies upon its users) a use that can be reasonably described as compelling?

Presumably, this has been justified on the basis that YouTube forces cookies on the visitors of any Web site that embeds one of its videos. However, while Joe or Jane blogger has no bargaining power with YouTube/Google, the federal government certainly does.

In just the past couple weeks, YouTube has launched dedicated pages for both the House and Senate to show off their own videos, and the site also recently started allowing users to directly download copies of some videos. This latter feature has not yet been widely deployed across the site, and is seems to be limited to videos posted by Obama's team.

Given the famously close connections between Obama and Google, you'd think his tech team could negotiate for a cookie-less way to embed videos. At a technical level, this would be an easy enough change, even if it would deny Google the ability to collect even more information on millions of Americans.

Read more here.

Copyright blocks The Wonder Years on DVD

Techdirt reports that thanks to problems with music licensing rights, The Wonder Years is unlikely to be available on DVD anytime soon:

One of the tragedies of ridiculous music licensing practices has been that TV shows that involved great music can no longer be seen -- because when they were first aired, there was no aftermarket, and so no rights were cleared with the music owners. The famous case is the TV show WKRP in Cincinnati, which tried to get around the issue by replacing all the great classic rock in the original, with crappy new music -- really harming the quality of the show. Tom sent in a note pointing out that the classic 80s TV show The Wonder Years is actually facing a similar issue, and because of it, the show is not available on DVD. The show was famous for integrating great music into the overall show -- clearing all that music for a DVD release is apparently too difficult, leading to an overall loss to society and culture.

Read it here.

Social media and US Airways Flight 1549

When US Airways Flight 1549 crash landed on the Hudson River, the event unfolded before the world on a range of social media websites.  Employees at Hill & Knowlton have put together two interesting presentations that illustrate the speed at which this event unfolded online.  The first is an animation created by Niall Cook that shows the rapid transformation of Wikipedia's entry on the crash of US Airways Flight 1549:

First 90 Minutes' Wikipedia Edits to US Airways Page
Uploaded by niallcook

Second, H&K Canada's digital team also captured (as the event unfolded) screen caps of key sites - search engines, blogs, social networks, corporate sites, aggregators etc.  Brendan Hodgson blogs that this "further demonstrates and reinforces the sheer dynamism of the communications environment in which we now exist; as it relates to the speed by which information on an incident is communicated and shared (e.g. via Twitter), the competitiveness as well as the synergy shaping the relationship between traditional and citizen media, and the actions taken by corporations to respond within this new environment":

Us Airways Crash 1549 Online Analysis

View more presentations or upload your own. (tags: crash communications)

Freakdom of Speech

Patrick Bristow's Freakdom of Speech is a satire of the diversity of dumb to be found in America.  The first episode is America on Obama:

Read NewTeeVee's review here.

iTunes for news

In a piece for the New York Times, David Carr suggested that there should be an iTunes for news:

Last Tuesday, iTunes, Apple’s ubiquitous online music store that sold more than 2.4 billion tracks last year alone, changed its own tune, announcing that songs would no longer be sold with copying restrictions and that they would be available at various prices.

The digerati crowed over the collapse of the hated digital rights management (which Apple never liked, either) and record companies kicked up their heels at the thought of leaving behind the tyranny of the 99-cent price point.

But lost in the hubbub was the fact that Steve Jobs and Apple had been able to charge for content in the first place. Remember that when iTunes began, the music industry was being decimated by file sharing. By coming up with an easy user interface and obtaining the cooperation of a broad swath of music companies, Mr. Jobs helped pull the business off the brink. He has been accused of running roughshod over the music labels, which are a fraction of their former size. But they are still in business.

Those of us who are in the newspaper business could not be blamed for hoping that someone like him comes along and ruins our business as well by pulling the same trick: convincing the millions of interested readers who get their news every day free on newspapers sites that it’s time to pay up.

Read more here. Now VF Daily has imagined what such a site may look like:

12 January 2009: a decisive day in the history of intellectual property?

Three days ago, YouTube permanently disabled the account of critic and commentator Kevin B. Lee, suggesting that YouTube is cracking down on critical video essays posted to the site:

Kevin’s video essays wed critical commentary or conversation to clips from copyright films in a “teaching” context, and most of them were created as part of his project to “view every film on the list of 1000 greatest films of all time, as compiled by They Shoot Pictures, Don�t They?.” Kevin says he received a copyright warning earlier today in regards to his video essay on …And God Created Woman. It was the first time YouTube had ever slapped his wrist over one of the video essays, although they had contacted him about two unaltered clips in the past, one from The Sorrow and Pity and one from Dames. Three strikes, and Kevin’s out — YouTube has removed all 70 of his videos, including 40 original video essays. If you’ve embedded one of these in your own blog, that embed will now be unplayable.

Kevin has his own personal archive and can potentially re-upload the clips; he says he’ll investigate other online video sharing options. But YouTube is still the biggest game in town, and Kevin says he’ll miss it. “I’ll miss not only the unparalleled audience reach, but the cool stats that YouTube had to offer (like learning that viewers would rewind repeatedly to watch Bardot’s bare ass in my video essay for …And God Created Woman),” he noted in an email. “But that’s nothing compared to having the right to share my work in the first place.”

Kevin is one of a number of people producing film criticism via online video who have had trouble with YouTube of late. These videos represent the first real advance in film criticism as an art form in, at least, decades; other video sharing platforms may remain more friendly to copyright borrowers for awhile, but ultimately this practice may have to either move underground or disappear.

Read more here (from SpoutBlog).  In a passionate (and lengthy) post on The House Next Door, Matt Zoller Seitz thinks 12 January 2009 might be a decisive day in the history of intellectual property:

Kevin has copies of all his work, and I'm sure it will show up again somewhere, sometime. But the obliteration of YouTube as a global platform for his voice is a crime of greater magnitude than anything he did to create the video essays in the first place. YouTube is the town square of the 21st century—rather like a gigantic virtual mall that is, technically speaking, a private space, but which operates as a public sphere: a gathering spot, a cultural and political crossroads. By scourging Kevin's work from this crossroads and banning his video essays—and, potentially, all similar work—from YouTube, the company is allowing the powerful to muzzle the near-powerless. And it is endorsing the idea that in cases involving intellectual property law and the Internet, filmmakers can be deemed guilty, silenced, then made to plead for their right to speak.

There's also an unspoken class bias at work here, a bully mentality that chooses its targets based on who's likely to fight back and win. Consider commercial TV, which is filled with programs that routinely air copyrighted material without permission for purposes of journalism, satire or simple entertainment. The Daily Show and The Colbert Report don't ask permission to air any of the news clips they slice and dice each night for yuks; they consider a network's onscreen logo to be acknowledgment enough, and their assumption is almost never challenged. Talk shows don't think twice about airing a rival network's news footage or clips from a popular or notorious TV program in order to spark a discussion or anchor a satirical montage. Infotainment shows compile film clips for use in movie star obituaries—not just electronic presskit snippets meant for PR purposes, but clips from older movies that predate EPKs and that might have originally aired on some corporate competitor's channel—and the movie's copyright holders don't object. The shows that feature such clips are routinely repurposed on the parent company's websites, often with ads and sometimes with embedding functions that allow the clip to be reproduced by bloggers, and there are not currently, to the best of my knowledge, any lawsuits seeking to stop the practice. Kings wink at each other. Peasants get the axe.

Kevin B. Lee is not Napster; he's not some guy uploading every frame of every Bette Davis movie for kicks; he's not even Goldentusk. He's a critic and scholar doing work that could be considered, at worst, compelling free ads for essential pop art. YouTube, by reflexively siding with whichever party has more money and power, has renounced its founding spirit.

There should be a way to distinguish between piracy-for-profit (or unauthorized, free redistribution) and creative, interpretive, critical or political work that happens to use copyrighted material. And there must be an alternative to unilateral takedowns. The issues aren't just legal, they're practical. History has demonstrated that there's no copyright protection that can't be defeated, no corporate edict that can't be subverted. And given the technological sophistication that permits digital watermarking, there ought to be a way to make sampling of any sort, authorized or not, scaled to suit the filmmakers' means, profitable for the rights holders, and as fully automated as the copyright-infringement-scouring that's currently happening all over the Internet.

Whatever the solutions, they should be something other than one-size-fits-all. Digital watermarking abusers are engaged in an unwinnable war—one that, in its present state, will only produce collateral damage and make them increasingly unsympathetic, and therefore more likely to be demonized and resisted. The entertainment industry's unwillingness to recognize the plain fact that people have complex, idiosyncratic and yes, possessive relationships to songs, films and TV shows—relationships that are qualitatively different from their relationships to cars, hats, shoes and beer—contributes to a culture of calcified mutual resentment, and a public mindset (manifested most vividly in generations that cannot remember life before the Internet) that sees big entertainment companies as lead-footed dopes—Elmer Fudd blasting every rabbit hole in sight hoping to hit Bugs Bunny.

The situation as it stands is immoral, untenable and, I believe, a violation of fundamental rights. Almost nobody taking part in the early phases of digital media has the money to fight the Googles and Viacoms of the world, and of course that's what the takedown gremlins are counting on; injustice not resisted eventually becomes tradition. I fervently hope some brave, knowledgeable lawyer will see that there's more at stake here than the ethics of ripping and posting scenes from movies, and make a test case of Kevin's unconscionable treatment. The circumstances may seem mundane, but the implications are grim as can be. When individuals and governments permit corporations to dictate the terms by which their culture may be examined, the First Amendment becomes just another pile of words.

Read more here.

Remixing Lessig and Colbert

When Larry Lessig appeared on The Colbert Report during the week to talk about this latest book, Remix, he basically invited people to remix the interview (see here).  Here are two audio remixes: one from Sam and another from Jim Vanaria.  Here are two video remixes:

And the audio to the show is available to be remixed on ccMixter here.

Obama really wants his Blackberry

The New York Times reports that Obama is still trying to hold on to his Blackberry:

President-elect Barack Obama has yet to relent, but he conceded that he might be losing the battle to keep his independent lifeline to the outside world.

“I’m still clinging to my BlackBerry,” Mr. Obama said Wednesday. “They’re going to pry it out of my hands.”

Of all the fights facing Mr. Obama as he prepares for the White House, one of the most maddening for him is the prospect of losing the BlackBerry that has been attached to his belt for years. It is, he has vigorously argued, an essential link to keeping him apprised of events outside his ever-tightening cocoon.

“This is a concern, I should add, not just of Secret Service, but also lawyers,” Mr. Obama said, speaking in an interview with CNBC and The New York Times. “You know, this town’s full of lawyers. I don’t know if you’ve noticed.”

Mr. Obama shared his agitation at the prospect of losing his last form of direct communication with friends and other advisers who sent him e-mail throughout the presidential campaign. But he, like President Bush before him, is being advised for security reasons and his own legal protection to refrain from sending e-mail during his presidency.

“I don’t know that I’ll win,” Mr. Obama said. But, he added, “I’m still fighting it.”

Read it here.

"Everyone's digital these days"

In the Washington Post, Howard Kurtz talks about how Dr Sanjay Gupta used Twitter to confirm he had been approached by the Obama administration about the US Surgeon General's post:

I confirmed yesterday that Obama has offered the job and that Gupta had all but officially accepted. Got it up on the Web site at 2:36 p.m., mere moments after filing the story. Cyberspeed comes in handy sometimes. CNN, where I host a weekly program, didn't report it until 3:59, but the blogs went crazy--lead story on HuffPost, top of Drudge's page, then the NYT and others. Gupta wouldn't comment to me--while not denying the story--but confirmed on his Twitter feed that he "has been approached by the Obama administration about the U.S. surgeon general's post." Everyone's digital these days.

Read more here.  Interesting that Gupta wouldn't speak to a journalist but would comment on Twitter.  Is it a sign of things to come?  Should journalists be worried?

Anonymous defamation

The New York Daily News reports on a lawsuit against Google, as host of Blogger.com:

A Vogue cover girl is suing Google in an attempt to unmask the blogger who trashed her as a "skank" and an "old hag."

Liskula Cohen, a blond beauty who has modeled for Giorgio Armani and Versace, made headlines last year when a doorman at a Manhattan hot spot was jailed after smashing her in the face with a vodka bottle.

Now she wants to force Google to reveal who slammed her online as the "#1 skanky superstar" on a blog hosted by the search engine's subsidiary.

"It's petty, it's stupid and it's pathetic," Cohen said of the sniping. "And when I do find out who did this, at least I'll know who my enemies are."

The defamation suit, filed in Manhattan Supreme Court, seeks a court order compelling Google and its Blogger.com service to identify whoever led the vicious Internet assault against Cohen.

Her lawyer Steven Wagner conceded it's not easy to identify bloggers who lob insults anonymously, as New York courts have generally declined to force them into the light.

"We think we have a case," he said. "This is libelous, it's defamatory and you shouldn't just get away with this."

Read more here.  Ars Technica summarises in lay terms the legal hurdles presented by this case:

Since the blogger is anonymous, however, there is an extra legal hurdle between Cohen and whatever financial revenge she seeks.

That hurdle would be Google and its army of lawyers. Essentially, Cohen has to demonstrate defamation twice: once to show that she has a sufficient case that the identity of the blogger should be unmasked. At that point, the case could proceed against the actual author of the blog, at which point the defamation would have to be demonstrated all over again. None of this will be easy, as US courts generally set a high standard for defamation of public figures, and Cohen has made a name for herself in ways that go beyond modeling by getting hit in the face with a vodka bottle at a Manhattan club.

As a result, the case appears to be an uphill battle, which means both that nothing is likely to come of it and that, should something unexpected happen, the legal context makes it likely that the decision will further muddy the waters when it comes to determining the legal status of bloggers.

Read more here. 

It is interesting to consider what the legal position would be if this had occurred in Australia, as I think it would be easier for Cohen to obtain relief.  That is because Cohen would be able sue Google for defamation.  In the US, Google has immunity courtesy of s 230 of the Communications Decency Act, however no such immunity exists in Australia and Google would be unlikely to be able rely on the defence of innocent dissemination.  However, even if Cohen did not sue Google, she would be able to use the threat of a lawsuit as leverage to require Google to disclose the identity of the anonymous blogger.  And ultimately that is where these sorts of lawsuits should be fought - between the person alleging defamation and the party who posted it to the internet - without involving the intermediaries or platforms who should not be liable for what others post to that intermediary or platform.

Important DMCA copyright decision

Wired's Threat Level Blog reports on an important copyright decision out of the US:

Online video-sharing sites are scoring another major legal victory, as a federal judge is ruling that the Digital Millennium Copyright Act protects such sites from copyright violations if they abide by takedown notices as the DMCA prescribes.

The case was brought by Universal Music Group, which claimed that San Diego-based Veoh -- financially backed by Time Warner and Michael Eisner – engaged in wanton copyright infringement because it allowed users to upload and store the music concern's copyrighted videos. U.S. District Judge Howard Matz agreed with Veoh that its business model complied with the 1998 Digital Millennium Copyright Act's so-called safe harbor provisions.

The case is similar to other suits targeting YouTube, MySpace, MP3Tunes and others. And it marks just the second time that a federal judge has ruled the DMCA protects video-sharing sites – even user-generated sites like Veoh that transform user-uploaded content into flash-formatted videos that can later be accessed by users.

...

Both rulings are not binding on other judges, however. And neither the U.S. appellate courts nor the U.S. Supreme Court has directly addressed the issue.

Check out the Electronic Frontier Foundation's take by Fred von Lohmann on the topic.

Read more here.

Twitter in the courtroom

In the US, a Colorado judge recently approved the use of Twitter, as well as live-blogging, inside the courtroom to cover an infant-abuse trial:

Prosecutors and defense attorneys wanted bloggers silenced in the courtroom next week, but a Boulder judge ordered Monday that cell phones and computers won’t be banned from the child-abuse trial of Alex Midyette, the Boulder Daily Camera reports. The attorneys argued that live-blogging and Tweeting the sensational case could tip witnesses to proceedings before they testified, thus impeding a fair trial. “I think there are other manageable options and less restrictive options than shutting down the flow of information during the trial,” Boulder District Judge Lael Montgomery said.

Last week, when the attorneys filed the joint motion to keep bloggers out of the courtroom, a Kansas journalist who has pioneered new media trial coverage cried foul. “Courts are supposed to be public and this is just another way of creating public access,” Wichita Eagle reporter Ron Sylvester wrote in an e-mail to the Colorado Independent. In addition to a Tweeting trial coverage, Sylvester maintains a blog, What the Judge Ate for Breakfast, with further insight into the local courts.

“[R]eporting through live blogging is simply text descriptions, just as newspapers have been reporting on the courts for ages,” Sylvester wrote. “When I use Twitter to cover trials, there’s really very little difference in what I do with social media than what I write for the next day’s newspaper.”

Montgomery agreed in her ruling Monday, ordering witnesses to refrain from reading about the testimony of other witnesses. “The court believes that is a more appropriate way to proceed than shutting off the reporting at the front end,” the Longmont Times-Call reported.

Read more here (from the Colorado Independent).  (Hat tip: Social Media Law Student.)

Before my Australian readers get too excited about this ruling, I cannot see this ruling taking place in Australia.  The principle of open justice in Australia is very different from the US, and my feeling is that the courts here would be more likely to grant TV or radio access than Twitter or live-blogging in Australian courts - and I can't see TV cameras or microphones being regularly allowed into Australian courts any time soon.

"The Christmas Classic that Almost Wasn't"

Ronald J. Rychlak explains how copyright law helped to make It's a Wonderful Life a Christmas classic:

The other night, along with many other Americans, I watched the Frank Capra classic It's a Wonderful Life. Starring Jimmy Stewart and Donna Reed, the movie has become a Christmas staple -- but it was not always that way, and how it attained its holiday status has as much to do with the intricacies of intellectual property law as it does with the storyline and the production values.

Read how here.

(Hat tip: The Volokh Conspiracy.)

Today Popeye, tomorrow Mickey Mouse?

This week the cartoon character Popeye came out of copyright protection and into the public domain.  Techdirt observes that it "be quite interesting to see what happens next, as it will be something of a preview of the eventual Mickey Mouse fight that will be coming":

Disney was able to continually extend copyright to keep Mickey Mouse out of the public domain for years -- in part because copyright wasn't an issue that the general public cared about or that really impacted them in a noticeable way. Obviously, over the past decade, that's changed quite a bit. Disney must know that it will have an awfully difficult time extending copyright yet again (though, the company will almost certainly try). In the meantime, though, what happens with Popeye in the UK may be a rough guide as to what will happen should Mickey Mouse hit the public domain.

And... the reality is that not very much different might happen.

That's because even though the copyright on the character has fallen into the public domain, the trademark remains -- and the current holder of the Popeye trademark in the UK, King Features (owned by Hearst), is expected to "protect its brand aggressively." That means people will still be quite limited in how they can use Popeye. If King Features is able to successfully use trademark law to keep Popeye under control, perhaps Disney won't go quite so crazy trying to extend the copyright on Mickey Mouse again... Either way, this little "experiment" will be worth watching.

Read it here.

Slate V: the best viral political videos of 2008

In a Power Recap, Slate V presents 20 of the best viral political videos of 2008.  Congratulations to Australian Hugh Atkin whose video, John McCain Gets BarackRoll'd, was the number one viral video.  Slate V says it was "a perfect metaphor for McCain's defeat and maybe the best mashup of the entire camapign on the internet".  Here is Slate V's list:

RIAA comes to its senses

The Wall Street Journal Law Blog reports that the Recording Industry Association of America is rethinking its litigation strategy:

Major news for online music geeks: The recording industry plans to lay down its litigation offensive against music pirates in favor of a more PR-friendly, if not more effective, strategy. Instead of suing thousands of people for stealing tunes via the Internet, it will rely on the cooperation of Internet-service providers.

As the WSJ explains:

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider’s customers making music available online for others to take. . . .Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. . .

We like to think that, more than PR problems, the RIAA changed course because of a recent decision by a federal judge in Minnesota.

On September 25, the Law Blog asked whether liability for music file-sharing was on its way out the door. Why? Because last year, in the first ever file-sharing trial, a jury found Jammie Thomas, a single mother, liable for copyright infringement for offering to share 24 songs on the Kazaa file-sharing network. Thomas got hit with a $222,000 verdict. At trial, Judge Michael Davis told the jury that merely making songs available for distribution — known in copyright circles as the “making available” standard — was enough to constitute a copyright violation. In other words, the record companies didn’t have to prove actual distribution took place. But then, in September, Judge Davis not only decided his instructions were wrong, but he also implored Congress to change copyright laws to prevent excessive awards against individuals in similar cases.

Read more here.  I'd also like to think that the tireless work of Ray Beckerman has contributed to this decision.

Change 2.0

In a piece for Newsweek titled "Change 2.0", Larry Lessig asks can Obama create a truly transformational presidency.  Read it here.

"To Catch a (Joke) Thief"

U.Va. News reports on a study of copyright, social norms and stand-up comedy:

In part, it was a viral video of two well-known comedians hurling obscenities at each other that prompted a pair of University of Virginia law professors to take a serious look at how professional comics protect themselves from joke theft.

In February 2007, stand-up comedians Joe Rogan and Carlos Mencia squared off on stage at a prominent Los Angeles comedy club after Rogan accused Mencia — whom he dubbed "Carlos Menstealia" — of pilfering material from other comedians. A video of the altercation garnered more than 2 million views online and countless mentions on blogs and Web sites.

"The two of them had an almost physical fight on stage where they were yelling at each other about the accusation of joke stealing, and Mencia was denying it," said Chris Sprigman, who with faculty colleague Dotan Oliar authored an upcoming Virginia Law Review article, "There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy."

The Mencia-Rogan argument led the two intellectual property law scholars to an interesting question: With scant legal protection for their work — copyright law plays little role in comedy — why are stand-up comedians willing to invest time and energy developing routines that could be stolen without legal penalty?

After almost a year of research that included interviews with comedians ranging from comedy club circuit neophytes to seasoned veterans of television specials, Oliar and Sprigman found that the world of stand-up comedy has a well-developed system of social norms designed to protect original jokes — and that the system functions as a stand-in for copyright law.

"Most of our research over the last year has been trying to piece together all the attributes of this system that comedians have started up and run for themselves," Sprigman said.

In their paper, published in the December edition of the Virginia Law Review, Oliar and Sprigman identify several of the informal rules that govern stand-up comedy.

...

For Sprigman and Oliar, the study of stand-up comedy has ramifications for the larger world of intellectual property law, or the body of law that protects creative works through devices such as patents, trademarks and copyrights.

The underpinning of such law is the notion that without it, theft would be so rampant that there would be no incentive to create or innovate, Oliar said.

"For us, the most salient observation is that the law has not done the job of protecting jokes, but the joke market has not failed. The market is substituting this set of informal rules for the formal ones, and as far as we can see it's doing a pretty good job," Sprigman said.

...

Both men stressed that joke theft is not common in the world of stand-up comedy, and that most comedians pride themselves on creating original material.

One potential downside to the social norm system as opposed to formal legal protection is that social norms might not be effective at punishing comedians who get to the top of the field, they said.

"If a successful comedian doesn't care too much about the community's feelings toward him, then he's hard to discipline," Sprigman said. "But keep in mind that the formal law doesn't always work either. There are all kinds of copyright rules that apply to the music industry, but there are millions of people illegally downloading songs.

"There's always a slippage between the law on the books, or the rules in the norms system, and the ability of these rules to be enforced."

Read more here.

Some interesting top ten lists

Over the past few days I've come across a few different top ten lists.  The first was Oddee's list of ten of the geekiest graffiti.  This was my favourite:

Next was Politico's list of the top ten political films of 2008, culminating with these two:

2 “Recount.” Helmed by Jay Roach (“Meet the Fockers” and the Austin Powers trilogy) and written by Danny Strong, this made-for-HBO film about the hotly contested 2000 presidential election hardly shows candidates George W. Bush or Al Gore, instead focusing on the backstage drama that took place in Florida between their surrogates. In this fictionalized replay of actual events, Laura Dern and Denis Leary steal the show, adding some zany comic levity with their portrayals of Florida Secretary of State Katherine Harris and Democratic strategist Michael Whouley, while Kevin Spacey, as Ron Klain — then Gore’s attorney and now Vice President-elect Joe Biden’s chief of staff appointee — and Tom Wilkinson, as Bush’s proxy James Baker, give the story more gravitas.

1 “Milk.” Anchored by a near-perfect performance from Sean Penn, this biopic of the first openly gay American elected official focuses heavily on the political process that Harvey Milk saw as the gateway for social change. Director Gus Van Sant recently told Interview magazine about his first reaction to the script: “The personal parts of the story were always kind of filtered through the politics, which I’d never seen done before, really.” Van Sant needn’t have worried that the characters talk only about politics — Milk’s life was politics, and the film’s depiction of the struggle against 1978’s Proposition 6, regarding gay public school teachers, bears striking similarities to the ongoing battle over 2008’s anti-same-sex-marriage initiative, Proposition 8.

Read more here.

And the last list is Campaign's list of the top internet viral campaigns of 2008.  These are my favourites:

2 SFW XXX Party Invitation

To celebrate Diesel's 30th anniversary, The Viral Factory decided porn was the only way to party with a bang. After collating clips of 80s porn, it animated the rude bits and added toned down sound effects to avoid any potentially inappropriate scenes and make it SFW XXX (an acronym for "safe for work"). So far, 6,497,507 have clicked, with an average of 116,387 hits per day.

6 Budweiser's ‘Swear Jar'

It was banned on TV because of the implied bad language, but Budweiser's ‘Swear Jar' has been a hit online with over 3.3 million views on YouTube. Part of Budweiser's online viral effort at Bud.TV, it shows characters in an office, swearing their way to make enough money for a case of Bud in boardroom meetings, announcements, and by the photocopier.

Read more here (from Brand Republic).

Keith Olbermann's "homoerotic" obsession with Bill O'Reilly

During the week Keith Olbermann attacked the late night FoxNews Channel show Red Eye, sparking this priceless response from Red Eye host Greg Gutfeld: