Peter Black's Freedom to Differ

"American" from "The $trip"

I love this song.  Alan Cumming sings Lance Horne's "American" from "The $trip", with visuals by Ned Stresen-Reuter:

 

 

Alan Cumming/Lance Horne/Ned Stresen-Reuter - American from on Vimeo.

Wikileaks: radical transparency AND total anonymity?

In a thought provoking piece for Slate, Farhad Manjoo looks at the paradox at the heart of Wikileaks:

Julian Assange, the founder of WikiLeaks, doesn't know who leaked the thousands of Afghanistan war documents that his site posted this week. That's not unusual—it's how WikiLeaks works. To get a scoop to WikiLeaks, a would-be whistle-blower clicks the Submit Documents button on the site's home page, then uploads a file through a form that encrypts every interaction between the source and the site. WikiLeaks keeps no logs of the submission, and the site says that it is legally bound, under Sweden's press secrecy laws, never to cooperate with any investigation into the identity of the source. The site takes several additional measures to scrub submitted documents of any information that could compromise the leaker, removing any ID trails left by word processing software, for instance. The site also constantly feeds fake submissions through its network in order to fool potential attackers. "We have never lost a source," Assange declares in his pitch to whistle-blowers around the world. "None of our sources has been exposed or come to harm."

At the same time, WikiLeaks says its founding mission is radical transparency. Assange argues that "increased scrutiny"—of governments, corporations, and institutions like the Church of Scientology—can be a powerful force for good, reducing corruption and oppression. "Principled leaking has changed the course of history for the better; it can alter the course of history in the present; it can lead us to a better future," WikiLeaks says.

This is the paradox of WikiLeaks' methods. Is radical transparency compatible with total anonymity? If we don't know who the leaker is, why he's leaking, and how he came upon his information, can we really know the full story the document tells? More importantly, how can we know that the information is authentic? Look deeply into WikiLeaks' efforts at radical transparency and you find complete opacity; WikiLeaks wants to shine a light on the world, but only by keeping itself shrouded in secrecy.

Read more here.

"The Web Means the End of Forgetting"

In the New York Times Magazine, Professor Jeffrey Rosen has a thought provoking essay on privacy on the internet, "The Web Means the End of Forgetting":

Four years ago, Stacy Snyder, then a 25-year-old teacher in training at Conestoga Valley High School in Lancaster, Pa., posted a photo on her MySpace page that showed her at a party wearing a pirate hat and drinking from a plastic cup, with the caption “Drunken Pirate.” After discovering the page, her supervisor at the high school told her the photo was “unprofessional,” and the dean of Millersville University School of Education, where Snyder was enrolled, said she was promoting drinking in virtual view of her under-age students. As a result, days before Snyder’s scheduled graduation, the university denied her a teaching degree. Snyder sued, arguing that the university had violated her First Amendment rights by penalizing her for her (perfectly legal) after-hours behavior. But in 2008, a federal district judge rejected the claim, saying that because Snyder was a public employee whose photo didn’t relate to matters of public concern, her “Drunken Pirate” post was not protected speech.

When historians of the future look back on the perils of the early digital age, Stacy Snyder may well be an icon. The problem she faced is only one example of a challenge that, in big and small ways, is confronting millions of people around the globe: how best to live our lives in a world where the Internet records everything and forgets nothing — where every online photo, status update, Twitter post and blog entry by and about us can be stored forever. With Web sites like LOL Facebook Moments, which collects and shares embarrassing personal revelations from Facebook users, ill-advised photos and online chatter are coming back to haunt people months or years after the fact. Examples are proliferating daily: there was the 16-year-old British girl who was fired from her office job for complaining on Facebook, “I’m so totally bored!!”; there was the 66-year-old Canadian psychotherapist who tried to enter the United States but was turned away at the border — and barred permanently from visiting the country — after a border guard’s Internet search found that the therapist had written an article in a philosophy journal describing his experiments 30 years ago with L.S.D.

According to a recent survey by Microsoft, 75 percent of U.S. recruiters and human-resource professionals report that their companies require them to do online research about candidates, and many use a range of sites when scrutinizing applicants — including search engines, social-networking sites, photo- and video-sharing sites, personal Web sites and blogs, Twitter and online-gaming sites. Seventy percent of U.S. recruiters report that they have rejected candidates because of information found online, like photos and discussion-board conversations and membership in controversial groups.

Technological advances, of course, have often presented new threats to privacy. In 1890, in perhaps the most famous article on privacy ever written, Samuel Warren and Louis Brandeis complained that because of new technology — like the Kodak camera and the tabloid press — “gossip is no longer the resource of the idle and of the vicious but has become a trade.” But the mild society gossip of the Gilded Age pales before the volume of revelations contained in the photos, video and chatter on social-media sites and elsewhere across the Internet. Facebook, which surpassed MySpace in 2008 as the largest social-networking site, now has nearly 500 million members, or 22 percent of all Internet users, who spend more than 500 billion minutes a month on the site. Facebook users share more than 25 billion pieces of content each month (including news stories, blog posts and photos), and the average user creates 70 pieces of content a month. There are more than 100 million registered Twitter users, and the Library of Congress recently announced that it will be acquiring — and permanently storing — the entire archive of public Twitter posts since 2006.

In Brandeis’s day — and until recently, in ours — you had to be a celebrity to be gossiped about in public: today all of us are learning to expect the scrutiny that used to be reserved for the famous and the infamous. A 26-year-old Manhattan woman told The New York Times that she was afraid of being tagged in online photos because it might reveal that she wears only two outfits when out on the town — a Lynyrd Skynyrd T-shirt or a basic black dress. “You have movie-star issues,” she said, “and you’re just a person.”

We’ve known for years that the Web allows for unprecedented voyeurism, exhibitionism and inadvertent indiscretion, but we are only beginning to understand the costs of an age in which so much of what we say, and of what others say about us, goes into our permanent — and public — digital files. The fact that the Internet never seems to forget is threatening, at an almost existential level, our ability to control our identities; to preserve the option of reinventing ourselves and starting anew; to overcome our checkered pasts.

Read the rest here.

Judges unable to agree on a font

Eugene Volokh amusingly observes that Seventh Circuit Judges can’t even agree on the font to use in their opinions:

Compare River of Life Kingdom Ministries v. Village of Hazel Crest (PalatinoLinotype, F.) with United States v. Blagojevich (HoeflerText, F.). I side with PalatinoLinotype, which seems thinner and less busy — and avoids the unfortunate capital Q of HoeflerText, see the top of p. 7 of Blagojevich.

Remembering Robert Byrd: where is my worthy adversary?

This week America has paid tribute to the legacy of the Robert Byrd.  The New York Times, in particular, published a nice collection of reflections from politicians, journalists and others paying tribute to his life.  While I don't mean in any way to diminish his contribution to American politics and public life, I will always remember him from this speech on the Senate floor towards the end of his career:

Study of s 230 CDA immunity

Anyone interested in internet law will want to read this academic article by David Ardia on s 230 of the Communications Decency Act:

Ardia, David S., Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act (June 16, 2010). Loyola of Los Angeles Law Review, Vol. 43, No. 2, 2010. Available at SSRN: http://ssrn.com/abstract=1625820

Abstract: In the thirteen years since its enactment, section 230 of the Communications Decency Act has become one of the most important statutes impacting online speech, as well as one of the most intensely criticized. In deceptively simple language, its provisions sweep away the common law’s distinction between publisher and distributor liability, granting operators of Web sites and other interactive computer services broad protection from claims based on the speech of third parties. Section 230 is of critical importance because virtually all speech that occurs on the Internet is facilitated by private intermediaries that have a fragile commitment to the speech they facilitate.

This Article presents the first empirical study of the section 230 case law. It begins by providing a doctrinal overview of common law liability for intermediaries, both online and offline, and describes how section 230 modifies these doctrinal approaches. It then systematically analyzes the 184 decisions courts have issued since the statute’s enactment. The Article also examines how courts have applied section 230, finding that judges have been haphazard in their approach to its application.

The Article closes by discussing the study’s findings and by offering some insights into how plaintiffs and defendants have fared under section 230. While section 230 has largely protected intermediaries from liability for third-party speech, it has not been the free pass many of its proponents claim and its critics lament. More than a third of the claims at issue in the cases survived a section 230 defense. Even in cases where the court dismissed the claims, intermediaries bore liability in the form of litigation costs, and it took courts, on average, nearly a year to issue decisions addressing an intermediary’s defense under section 230.

David Ardia also blogged about this article at the Citizen Media Law Project blog:

From February 8, 1996 (the effective date of section 230) through the conclusion of my study on September 30, 2009, state and federal courts produced a total of 184 decisions from 140 cases in which a party or the court interposed section 230 as a defense to liability for online content or acts.  This is an average of 13.5 decisions per year during the thirteen-year period, with an average of 8.1 decisions each year (59.8%) holding that section 230 preempted at least one claim in the cases studied.

Distribution of Federal and State Court Decisions by Year

When I say that in 59.8% of the decisions a court dismissed at least one of the claims pursuant to section 230, this does not mean that in 40.2% of the decisions the court found for the plaintiff.  The 59.8% figure only reflects decisions where the court dismissed a claim on the basis of section 230.  If the court dismissed a claim on statute of limitations grounds or on the merits, I didn't count it as a section 230 win (I explain this approach in some detail in sections III and IV of the paper).  When dismissals on grounds other than section 230 are included in the calculations, the results for defendants improve substantially, with defendants winning dismissal in 76% of the cases studied.  

One of the best ways to assess a statute's impact on an area of law is to systematically compare the case law pre- and post-enactment. Unfortunately, this approach will not work for section 230, as courts issued only two reported decisions addressing an Internet intermediary's liability for speech-based harms prior to section 230's enactment. As a rough proxy, however, I sought to identify factors in the decisions that were germane to the question of liability under the common law, and then applied those factors in a "what if section 230 did not exist" thought experiment in order to gain insight into how section 230 has changed the liability landscape for intermediaries. 

What I found was surprising.  Many of the intermediaries that invoked section 230 likely would not have faced liability under the common law because they lacked knowledge of and editorial control over the third-party content at issue in the cases.  Granted, I am undoubtedly overstating this because judges in the cases I analyzed did not focus on the two key determinates of liability under the common law -- knowledge and editorial control -- when addressing the application of section 230. Application of section 230 does not typically turn on those factors, so the calculations likely underreport the true number of defendants that would face liability under the common law. Nevertheless, my point in mentioning this is to note that many of the intermediaries who interposed section 230 as a defense did nothing more than provide an open platform for others to engage in speech.

Given this prediction, I note in the article that one might question whether section 230 is necessary. But this highlights one of section 230's most important functions for intermediaries: it seeks to give them the legal certainty, or in First Amendment terms, "breathing space," to facilitate the distribution of third-party speech that may contain injurious or illegal content. Without this increased certainty, risk-averse intermediaries would be less willing to facilitate the speech of others and the public would be burdened by their censorship.

Yet the data show that plaintiffs continue to file claims against defendants who are clearly protected by section 230 and who likely would not face liability under standard tort theories.  Currently, there is no mechanism in the statute to deter these filings nor is there a fee-shifting provision (unlike, say, anti-SLAPP statutes).  Accordingly, even intermediaries who succeeded in getting a claim dismissed under section 230 still bore liability in the form of litigation costs that they were unable to recoup from plaintiffs.  This latter point is particularly concerning because the research showed that it took courts nearly a year, on average, to issue a decision addressing an intermediary's defense under section 230.

Now that I've whetted your interest in the article, go read the whole thing here.

Read more here.

Should jurors use the internet?

I've written before how the access jurors have to the internet potentially poses a threat to our judicial process, so it was interesting to read this article that challenges my position and presents an argument that jurors should be able to use the internet to conduct outside research:

Lacy, Gareth S. , Should Jurors Use the Internet? (May 5, 2010). Available at SSRN: http://ssrn.com/abstract=1600585

Abstract:
During trials jurors are increasingly using cell phones and other devices capable of accessing the Internet. Courts are responding by amending court rules to explicitly ban these devices. This Article points out problems with those new rules. This Article also reviews scientific literature on the effect of pretrial publicity on jury decision-making to conclude the fear of outside Internet research may be unwarranted. By challenging the arguments against allowing jurors to conduct outside research, this Article seeks to broaden the discussion about what it takes to keep the American jury system working capably.

I'm going to take some time to think about this article before I respond to it, but I thought it was interesting enough to post without comment for the moment.

Is the internet killing defamation lawsuits?

A really interesting post on THR, Esq. suggests that the internet hasn't resulted in the proliferation of defamation lawsuits that was once expected; instead, it could be that in fact the internet is resulting in fewer defamation lawsuits:

Back in the early days of the Web, plenty of media lawyers predicted that without discerning, professional journalists filtering content, malicious falsehoods would proliferate and libel lawsuits, in turn, would increase.

Turns out the opposite is true. The NY Observer's John Koblin zeroes in on a trend we've also noticed: with the exception of some high-profile celebrity dustups (many of which are filed in friendlier British courts), we just aren't seeing many libel lawsuits any more. Like, at all.

What's happening?

As any discerning Web-surfer knows, there certainly isn't a lack of false information online. But as Koblin points out, the very democratization of media that many predicted would open the floodgates of litigation has provided an outlet for the defamed to fight back. And with the ability to correct stories online, most libel-related disputes are getting resolved before they result in litigation. (So the lawyers aren't working any less hard, they're just not filing and litigating as many lawsuits.)

This makes sense. After all, libel law developed based on a key presumption: that those who enjoy access to media hold a certain power over those who don't. (That's one reason why the standard for defamation is different for a public figure like a celebrity than it is for Average Joe; the public figure presumably has more access to media to counter the defamatory item.) When that power was abused and caused damage, redress was appropriate.

Now, of course, anyone can publish anything and reach every dark corner of the globe (assuming that dark corner has Wifi). And unlike the quaint old days of print, false information published online can be disappeared under threat of lawsuit just as quickly as it appeared.

via thresq.hollywoodreporter.com

A really interesting post on THR, Esq. suggests that the internet hasn't resulted in the proliferation of defamation lawsuits that was once expected; instead, it could be that in fact the internet is resulting in fewer defamation lawsuits:

Back in the early days of the Web, plenty of media lawyers predicted that without discerning, professional journalists filtering content, malicious falsehoods would proliferate and libel lawsuits, in turn, would increase.

Turns out the opposite is true. The NY Observer's John Koblin zeroes in on a trend we've also noticed: with the exception of some high-profile celebrity dustups (many of which are filed in friendlier British courts), we just aren't seeing many libel lawsuits any more. Like, at all.

What's happening?

As any discerning Web-surfer knows, there certainly isn't a lack of false information online. But as Koblin points out, the very democratization of media that many predicted would open the floodgates of litigation has provided an outlet for the defamed to fight back. And with the ability to correct stories online, most libel-related disputes are getting resolved before they result in litigation. (So the lawyers aren't working any less hard, they're just not filing and litigating as many lawsuits.)

This makes sense. After all, libel law developed based on a key presumption: that those who enjoy access to media hold a certain power over those who don't. (That's one reason why the standard for defamation is different for a public figure like a celebrity than it is for Average Joe; the public figure presumably has more access to media to counter the defamatory item.) When that power was abused and caused damage, redress was appropriate.

Now, of course, anyone can publish anything and reach every dark corner of the globe (assuming that dark corner has Wifi). And unlike the quaint old days of print, false information published online can be disappeared under threat of lawsuit just as quickly as it appeared.

And the best law review title of the year is ...

I had to chuckle when I read the title and abstract of this law review article from Rebecca Wood at the University of Nevada in Las Vegas:

"The High Court's Agenda: More Interesting than it First Appears"

REBECCA WOOD, University of Nevada, Las Vegas
Email: rebecca.wood@unlv.edu

At first glance, the High Court of Australia’s agenda looks relatively dull. It reports few cases, and only a small proportion of these cases are what American legal observers might consider interesting. Under the surface, however, hides an active docket of cases that drive policy innovation and reflect social change. By examining the many layers of the High Court’s docket in terms of its institutional context, this paper shows that the High Court’s agenda is far more interesting than it first appears. The Court is much busier than its reported decisions indicate and, because of the nature of the Australian Constitution and the High Court’s institutional design, the foundationally important cases are tucked in amongst cases dealing with government regulation, non-constitutional criminal cases and even torts.

Funny? Or sexist and demeaning? I report, you decide

Allure magazine has written a poem about the beauties on FoxNews, with this provocative headline, "Fox News's Hot Anchors: With its bevy of babes, the network should be called the Foxy News Channel":

Roger Ailes is such a whiz
At the infotainment biz.
His Fox News babes are always hot
(And health care is a Commie plot!).
But we digress; let's start anew
To look upon these happy few
With locks so blonde and legs so long,
We're tempted to break out in song.
You must admit they're kind of fun
With all their phasers set on "stun."
Those gleaming smiles belie the task
And take the edge off if they ask:
"Why, Mr. O, why do you hate
Puppies and kittens and all that's great?"
Their hair, it's clear, would hardly budge,
Nor would their makeup even smudge
If they were set upon a luge—
They'd laugh and cry: "We're going rouge!"
Sure, Rachel Maddow has the smarts
But can she work her giggly parts?
The obvious, let it be said:
Their favorite power suits are red.
Of course we know that it's not fair
To generalize, with nose in air.
There's no intention to deride:
We report and you decide.

via www.allure.com

More on copyright and Glee

I blogged last week about the difficulty real life Glee clubs might have in obtaining the necessary copyright licenses for a lot of the music that is used on the TV show Glee.  Well, according to THR, Esq., even Glee the TV show had difficulty securing the necessary permissions for some of the music on the show:

As Fox's "Glee" became a breakout hit, bands lined up for a chance to have their music performed by the William McKinley High kids. Well, not every artist. Notably, Canadian power ballad master Bryan Adams and British soft-rockers Coldplay said no.     

But writer-producer Ryan Murphy tells THR that not only has Coldplay changed its collective mind, the band's entire catalog has also been made available to the show.  

"At the beginning," Murphy says on this year's Emmy Comedy Showrunners Roundtable, "a lot of people didn’t know what we were and asked to see pages (in advance), but I refused because I didn’t want to set precedent of them having any involvement. My favorite rejection was Bryan Adams. Coldplay and Bryan Adams were really the only rejections. But Coldplay called a week ago and said, 'We’re sorry, you can have our catalog.' "

THR, Esq. also spoke to several other TV executives about similar problems they had experienced in securing rights to music:

Doug Ellin ("Entourage"): Our first season, we tried to get an Usher song and his label actually said, “Send over a $300,000 Bentley and we can talk.” I’m not even kidding! Now it’s gotten much easier. But ... the first year was very difficult because no one knew what the show was. Now they come to me and want to break artists.

Chuck Lorre ("Two and a Half Men"): We had trouble clearing the cha-chunk from “Law & Order.” I had to call Dick Wolf. He actually said, “That’s not my call. I’ll try.” And we got it, but it was ridiculously expensive. It was $5,000 a note, and it’s only two notes!

Steve Levitan ("Modern Family"): We just paid a ridiculous amount of money for “Eye of the Tiger.”

Ellin: I guess Survivor needs the cash.

Ryan Murphy: Did you have to pay a lot for the “Lion King” stuff (in the “Modern Family” pilot)?

Levitan: Yes. It was (ABC head) Steve McPherson actually calling Elton John and making the personal plea. We never would have had a prayer had it not been ABC.

Seth MacFarlane ("Family Guy"): We don’t even bother trying to clear Disney songs anymore. We just get the finger.

Read the full post here. 

If even some of the best producers on the biggest TV shows in Hollywood struggle to obtain the necessary music rights at times, what hope does that leave for the rest of us?

Chuck Lorre ("Two and a Half Men"): We had trouble clearing the cha-chunk from “Law & Order.” I had to call Dick Wolf. He actually said, “That’s not my call. I’ll try.” And we got it, but it was ridiculously expensive. It was $5,000 a note, and it’s only two notes!

Steve Levitan ("Modern Family"): We just paid a ridiculous amount of money for “Eye of the Tiger.”

Ellin: I guess Survivor needs the cash.

Ryan Murphy: Did you have to pay a lot for the “Lion King” stuff (in the “Modern Family” pilot)?

Levitan: Yes. It was (ABC head) Steve McPherson actually calling Elton John and making the personal plea. We never would have had a prayer had it not been ABC.

Seth MacFarlane ("Family Guy"): We don’t even bother trying to clear Disney songs anymore. We just get the finger.

Read the full post here. 

If even some of the best producers on the biggest TV shows in Hollywood struggle to obtain the necessary music rights at times, what hope does that leave for the rest of us?

Glee and copyright

In a recent guest post on the Balkinization blog, Christina Mulligan, described copyright law as the elephant in the middle of the Glee club:

The fictional high school chorus at the center of Fox’s Glee has a huge problem — nearly a million dollars in potential legal liability. For a show that regularly tackles thorny issues like teen pregnancy and alcohol abuse, it’s surprising that a million dollars worth of lawbreaking would go unmentioned. But it does, and week after week, those zany Glee kids rack up the potential to pay higher and higher fines.

In one recent episode, the AV Club helps cheerleading coach Sue Sylvester film a near-exact copy of Madonna’s Vogue music video (the real-life fine for copying Madonna’s original? up to $150,000). Just a few episodes later, a video of Sue dancing to Olivia Newton-John’s 1981 hit Physical is posted online (damages for recording the entirety of Physical on Sue’s camcorder: up to $300,000). And let’s not forget the glee club’s many mash-ups — songs created by mixing together two other musical pieces. Each mash-up is a “preparation of a derivative work” of the original two songs’ compositions – an action for which there is no compulsory license available, meaning (in plain English) that if the Glee kids were a real group of teenagers, they could not feasibly ask for — or hope to get — the copyright permissions they would need to make their songs, and their actions, legal under copyright law. Punishment for making each mash-up? Up to another $150,000 — times two.

The absence of any mention of copyright law in Glee illustrates a painful tension in American culture. While copyright holders assert that copyright violators are “stealing” their “property,” people everywhere are remixing and recreating artistic works for the very same reasons the Glee kids do — to learn about themselves, to become better musicians, to build relationships with friends, and to pay homage to the artists who came before them. Glee’s protagonists — and the writers who created them — see so little wrong with this behavior that the word ‘copyright’ is never even uttered.

You might be tempted to assume that this tension isn’t a big deal because copyright holders won’t go after creative kids or amateurs. But they do: In the 1990s, the American Society of Composers, Authors and Publishers (ASCAP) asked members of the American Camping Association, including Girl Scout troops,to pay royalties for singing copyrighted songs at camp. In 2004, the Beatles’ copyright holders tried to prevent the release of The Grey Album – a mash-up of Jay-Z’s Black Album and the Beatles’ White Album — and only gave up after massive civil disobedience resulted in the album’s widespread distribution. Copyright holders even routinely demand that YouTube remove videos of kids dancing to popular music. While few copyright cases go to trial, copyright holders like the Recording Industry Association of America (RIAA) don’t hesitate to seek stratospheric damage awards when they do, as in the Jammie Thomas-Rasset filesharing case.

These worlds don’t match. Both Glee and the RIAA can’t be right. It’s hard to imagine glee club coach Will Schuester giving his students a tough speech on how they can’t do mash-ups anymore because of copyright law (but if he did, it might make people rethink the law). Instead, copyright violations are rewarded in Glee — after Sue’s Physical video goes viral, Olivia Newton-John contacts Sue so they can film a new, improved video together.

So what should you do in real life if you and your friends, inspired by Glee, want to make a mash-up, or a new music video for a popular song? Should you just leave this creativity to the professionals, or should you become dirty, rotten copyright violators

Current law favors copyright holders. But morally, there’s nothing wrong with singing your heart out. Remixing isn’t stealing, and copyright isn’t property. Copyright is a privilege — actually six specific privileges — granted by the government. Back in 1834, the Supreme Court decided in Wheaton v. Peters that copyrights weren’t “property” in the traditional sense of the word, but rather entitlements the government chose to create for instrumental reasons. The scope and nature of copyright protection are policy choices — choices that have grown to favor the interests of established, rent-seeking businesses instead of the public in general.

The Constitution allows Congress to pass copyright laws to “promote the progress of science” — a word often used in the 18th century to mean “knowledge”. The stated purpose of the original 1790 copyright statute was to encourage learning. So you tell me — what promotes knowledge and learning: letting people rearrange music and learn to use a video camera, or threatening new artists with $150,000 fines?

Defenders of modern copyright law will argue Congress has struck “the right balance” between copyright holders’ interests and the public good. They’ll suggest the current law is an appropriate compromise among interest groups. But by claiming the law strikes “the right balance,” what they’re really saying is that the Glee kids deserve to be on the losing side of a lawsuit. Does that sound like the right balance to you?

Mulligan is quite right, of course.  The TV show Glee makes no reference whatsoever to the complex copyright issues that would beset any real life Glee club.  Indeed, if Glee actually highlighted some of these issues, it would go a long to convincing the public that real copyright reform is in fact needed.  Most of the public simply wouldn't even begin to understand how restrictive copyright law can be, and how ruthlessly the entertainment industry will be at times in enforcing their legal rights.

But there is another perspective to copyright and Glee that Mulligan doesn't write about; namely that Glee represents a new business model for the entertainment industry.  In a post on Salon, Andrew Leonard explains:

Mulligan is missing an essential point. "Glee" is itself an example of a new business model for generating revenue from popular music in an era where old business models, based on now-unenforceable copyright laws, have crumbled under the pressures of the digital era.

Glee is a music business revenue machine. The cast spawned 25 Billboard top 100 singles in 2009. According to an Advertising Age story, published in February, "the show has spawned more than 4.2 million downloads of songs featured in its episodes, as well as two gold albums."

"Glee" produces its own music, which can then be sold for revenue. Twentieth Century Fox and the record label that distributes and markets the music, Sony Music's Columbia, share in the revenue and the studio puts the money back into the cost of producing the show at present.

"Glee," the show, is an example of how the entertainment industry will find ways to survive in an environment in which the traditional enforcement of copyright laws has become, for all practical purposes, impossible. Spend a few minutes on YouTube and you can find a practically infinite number of glee clubs performing copyrighted tunes. If anything, the success of "Glee" is feeding an amateur frenzy of performance, even as it mints money from its own performances.

We're going to see more such hybrid beasties, as "Glee's" model gets copied, or tweaked or ripped off by imitators. And I'm betting that in the not too distant future, we'll look back at those crazy days of the early 21st century, when the producers of entertainment actually attempted to criminalize the behavior of those most likely to consume their product, as wackier and more unrealistic than anything that ever happened on the show "Glee."

Read more here.  Like Mulligan, Leonard is also quite right.  But I also think he paints a far too optimistic picture.  First, I'm not sure that the success of Glee will be easily replicated in such a manner that it will allow the entertainment industry to survive.  Second, I don't think there is any evidence to support his assertion that the entertainment industry has acknowledged that, as he puts it, "the traditional enforcement of copyright laws has become, for all practical purposes, impossible".  While I admire Leonard's optimism, I do not think his perspective is enough to negate the very real need for copyright reform.

(Finally, if you are an Australian teacher reading this post and you are suddenly spooked out by the potential copyright issues surrounding your use of music or other copyrighted materials in your classroom, the Australian Copyright Council has some very good facts sheets for educators that explain the law and the relevant exceptions and licenses that may be relevant if you want to set up your Glee style club at your school.)

My weekly chat with Andrew Bartlett on 4ZzZ

Every Monday morning I appear on Andrew Bartlett's 4ZzZ breakfast radio show to discuss some of the current public and political issues of the week.  Where possible I try to post that segment as a podcast to this blog.  For a variety of reasons that doesn't always happen but it has happened this week.

This week we discussed Australian federal politics, the BP oil spill, Kevin Rudd's temper, Israel and Gaza, and Malcolm Turnbull's iPhone app.

Also, some of the language in this podcast is not safe for work (unless talk about rat-fucking is acceptable around your workplace).

Australia doesn't mind a good Slapp (strategic lawsuit against public participation)

Mark Pesce sent me a link to this article in the New York Times, "Venting Online, Consumers Can Find Themselves in Court", which I think raises an interesting issue for us here in Australia.  Here is an extract from the article:

After a towing company hauled Justin Kurtz’s car from his apartment complex parking lot, despite his permit to park there, Mr. Kurtz, 21, a college student in Kalamazoo, Mich., went to the Internet for revenge.

Outraged at having to pay $118 to get his car back, Mr. Kurtz created a Facebook page called “Kalamazoo Residents against T&J Towing.” Within two days, 800 people had joined the group, some posting comments about their own maddening experiences with the company.

T&J filed a defamation suit against Mr. Kurtz, claiming the site was hurting business and seeking $750,000 in damages.

Web sites like Facebook, Twitter and Yelp have given individuals a global platform on which to air their grievances with companies. But legal experts say the soaring popularity of such sites has also given rise to more cases like Mr. Kurtz’s, in which a business sues an individual for posting critical comments online.

The towing company’s lawyer said that it was justified in removing Mr. Kurtz’s car because the permit was not visible, and that the Facebook page was costing it business and had unfairly damaged its reputation.

Some First Amendment lawyers see the case differently. They consider the lawsuit an example of the latest incarnation of a decades-old legal maneuver known as a strategic lawsuit against public participation, or Slapp.

The label has traditionally referred to meritless defamation suits filed by businesses or government officials against citizens who speak out against them. The plaintiffs are not necessarily expecting to succeed — most do not — but rather to intimidate critics who are inclined to back down when faced with the prospect of a long, expensive court battle.

“I didn’t do anything wrong,” said Mr. Kurtz, who recently finished his junior year at Western Michigan University. “The only thing I posted is what happened to me.”

Read more here.  While many States in America have anti-Slapp laws (and Congress is considering legislation to make it harder to file such a suit), Australia does not have any such protection.  It could be argued that Australia does not need anti-Slapp laws because, generally speaking, corporations do not have a cause of action for defamation in Australia.  However, this is immaterial because of the tort of injurious falsehood, which allows corporations to sue for false statements concerning their goods or business.

Given the financial and power imbalance between a business and an individual who has posted a critical comment online, I think Australia should also consider whether we need anti-Slapp laws.  Internet users should feel free to post comments, reviews and even criticisms of businesses online, without the fear of being threatened or intimidated with costly and flawed lawsuits.

Blawg Review #266

G'day and welcome back down under! 

This is the fifth time I have hosted Blawg Review from Australia (I previously hosted Blawg Review #85, Blawg Review #136, Blawg Review #178 and Blawg Review #196). For those who don't know, the Blawg Review is a weekly round-up of posts from around the blawgosphere, and I am once again honoured to be able to host Blawg Review from the the Queensland University of Technology (QUT) in Brisbane, Australia.

Before we begin my whip around the blawgosphere, a little about me and my blog.  As I've already indicated, I am a senior lecturer in law at the Queensland University of Technology (QUT) in Brisbane, Australia, where I teach Intellectual Property, Constitutional Law and Cyberlaw, and research within the Australian Research Council Centre of Excellence for Creative Industries and Innovation. Accordingly, my blog began as a forum to discuss the legal regulation of the internet and the media.  However, just as the collaborative and interdisciplinary nature of my work at QUT has seen my teaching and research interests expand beyond traditional black-letter legal scholarship, my blog is in many ways not a proper "blawg".  Most of my posts cover developments in new media - be they technological, social, political or legal - and you are just as likely to see me embed an interesting, popular or provocative viral video as you are to see me critique a significant legal case or piece of legislation.

Anyway, given my blawg's interest in media, it seemed appropriate that I am hosting Blawg Review #266 on Quit Facebook Day.  Regular readers of this blog would be well aware of some of the privacy concerns that have dogged Facebook over the past few years, but it has really been only been in the last few months that these concerns have started to be taken seriously outside the tech blogosphere and hardcore privacy advocates.  Quit Facebook Day is a further attempt to raise mainstream awareness of the need to protect your personal information on Facebook, and to encourage people to quit Facebook and consider some of the other alternatives. 

Here are what some law bloggers have been saying about Quit Facebook Day this week:

Black Web 2.0: "I hope Facebook new policy will give users the option to opt-in to services or applications that threaten user’s privacy rather than opt-out.   Although Facebook is not required by law to do so,  it would ease user fears and threatening government oversight."

Yale Law & Technology: "Welcome to the new business model: infringe on your privacy first, ask questions later. "

Masters of Media: "Whether you quit Facebook, or not, it is great that more and more people are constructively working towards the realization of non-exploitative, interoperable open-source social network systems, that do give users proper options to control and manage their online data."

Nieman Journalism Lab: "But the new ubiquity of sharing on the web means that, increasingly, publication subsumes publicity. The two are now wrapped up in each other, implicatively; selflessness and selfishness coexist in the content we share. Which means that, for us, publishing our photos, or our updates, or our ‘likes,’ or whatever else on Facebook is not just a communal act, but also an individual one. And the content that sharing produces is not just personal, but proprietary. Something that we should be able to — yes, Mark Zuckerberg — control."

Delimiter: "In summary, Facebook doesn’t invest in Australia, won’t cooperate with our law enforcement authorities, censors online Australian political organisation at a whim and without advance notice, won’t talk to journalists, and isn’t a reliable long-term place for the Australian story to be hosted. Plus, it’s almost impossible to delete your account.  Is this a company that Australia should be supporting? Not in my book." 

But if you are going to quit Facebook and are looking around for alternative social networks, you need to be aware of fakes; at Internet Cases, Evan Brown warned that that bogus social networking profile can send you to jail.  There is also the perspective, articulated at Law and Content, using Facebook as a case study, that privacy limits utility.

However, Facebook has been a bloggable topic this week for other reasons as well.  The Invent Blog noted that the patent office is on Facebook, while the Law Firm Web Strategy Blog looked at Facebook for law firms.

From a criminal law angle, ConnectedCOPS.net considered Law Enforcement's Unfamiliar Territory, which is an analysis of social media's impact on law enforcement practices.  While on law enforcement, the Chicago Criminal Law Blog noted that Suspected Cop-Killer Paris McGee Bragged On Facebook.  Eric Goldman Technology & Marketing Law Blog also reported on the EFF Amicus Brief in Facebook v. Power Ventures.

However, not all law bloggers have been obsessing over privacy and Facebook over the past week.

At the Blog of Rights: Official Blog of the American Civil Liberties Union, there was a good post on
Reviving the Fourth Amendment and American Privacy.

The Keene Trial Consulting blog explained why an uncertain attorney may be better than a cocky one. 

The humourous blawg, Whitelocke: On Lawmanship (yes law bloggers can have a sense of humour), presented a timeline of lawmanship.

At her new Forbes Legal Blog, On The Docket, Victoria Pynchon argued that the New York Anti-Bullying law is a bad idea

There was a thoughtful piece on "deal risk" in contract drafting at the always incisive Adam's Drafting Blog.

Over at the Broadcast Law Blog, David Oxenford blogged about rewriting the Communications Act of 1934 to bring it into the 21st Century.  And while we're speaking of the 21st Century, take a look at How to Deal with Scam Listings for Your Company's Name over at the California Defamation Law Blog. 

No good deed went unpunished over at Construction Law Musings.

The Complex Litigator created a video mash up of the collision between unfair competition law and federalist society viewpoints.

Counterfeiting misery loves company at the ever-hip Counterfeit Chic.

The Las Vegas Trademark Attorney also had a delicious post on a Utah cupcake maker suing a competitor for trade dress infringement.

Finally there is a dead celebrity alert in Defacing "The Face"? at Ron Coleman's Likelihood of Confusion.

And that is a wrap for Blawg Review #266.  It has been a pleasure to host Blawg Review again this week.  Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

Just one more post about Elena Kagan

I've already blogged twice this week (see here and here) about the controversy surrounding Elena Kagan's sexuality.  I personally have nothing new to add, but I did think I should draw your attention to Howard Kurtz's article on how the media have covered this issue:

When Elena Kagan was nominated, I figured that the media would treat the whispering about her personal life rather gingerly, if at all.

It's been about as subtle as a sledgehammer.

In fact, with friends now emerging to say that the solicitor general of the United States is not gay, a larger debate has taken root over whether such questions should be asked at all.

On one side are those who say that public officials ought to be entitled to serve without having their private lives dragged into the spotlight. In short, who cares who they sleep with (if it's not, say, a candidate sleeping with an aide or a congressman sleeping with a lobbyist)? Where is the relevance?

On the other side are those who argue that public officials cannot simply wall off one part of their lives in this age of 24-hour media scrutiny. This is particularly true, they say, in the case of a justice receiving a lifetime appointment, who will be ruling on cases where their personal experience may be extremely relevant.

After all, in this view, we openly debate whether the court--a collection of white men for nearly two centuries--needs more women, or minorities, or non-Ivy Leaguers, or, at the moment, a single Protestant. Why is homosexuality the only kind of diversity that is off-limits?

My own feeling is that people shouldn't be outed against their will. But the Kagan case has always been a bit odd in that respect, as I learned when I reported on the administration's outrage about the CBS News Web site picking up a report from a blogger who mistakenly declared that Kagan is openly gay. Administration officials welcomed the opportunity to say (on background) that she is not gay, rather than dismissing the matter as unworthy of comment.

This is, to put it mildly, a debate with implications well beyond this one nominee. The Clarence Thomas hearings broke one kind of ground in introducing sexual comments into a confirmation battle; the Kagan situation is something else entirely.

Read the rest here.

Eben Moglen: Freedom in the Cloud

The brilliant Eben Moglen, Professor of Law and Legal History at Columbia University, and founder, Director-Counsel and Chairman of the Software Freedom Law Center, recently gave a lecture at the Internet Society of New York on “Freedom in the Cloud: Software Freedom, Privacy and Security for Web 2.0 and Cloud Computing”:

Everyone wants a piece of you these days: Google, Facebook, Flickr, Apple, AT&T, Bing. They’ll give you free e-mail, free photo storage, free web hosting, even a free date. They just want to listen in. And you can’t wait to let them. They’ll store your stuff, they’ll organize your photos, they’ll keep track of your appointments, as long as they can watch. It all goes into the “Cloud.”

How we got here is quite a scary story. But nowhere near as scary as getting out again. Eben Moglen, a Professor of Law and Legal History at Columbia University and the founding director of the Software Freedom Law Center, warned you about privacy and the cloud before. At a public meeting of the Internet Society of New York on February 5, Moglen asked you to consider how much worse things have become since then and explain what you can do to reclaim your freedom in the era of Web 2.0.

More on outing Elena Kagan

Yesterday I blogged about Andrew Sullivan's argument that we have a right to know whether Elena Kagan is gay.  He argues that "In a free society in the 21st Century, it is not illegitimate to ask. And it is cowardly not to tell."  In his argument Sullivan compares sexuality to religion. Whether Kagan is gay, he writes,

is no more of an empirical question than whether she is Jewish. We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. And yet we have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively.

Today in a piece for Slate, William Saletan looks back at the confirmation battle surrounding Robert Bork, where his religion became an important issue:

In July 1987, shortly after President Reagan nominated Bork, Time reported that Bork had been "raised a Protestant" but had "married a Jewish woman" and, though remarried to a Catholic, was "now an agnostic." Democratic activists in the South pounced on this report, charging that Bork had "doubts about God" or "doesn't believe in God."

What followed was an excruciating inquiry into Bork's beliefs and religious associations.

Saletan recounts the inquiry, describing it as,

easily one of the most disgusting episodes in the history of Supreme Court nominations. And it took place only 23 years ago. Yes, tolerance of sexual and religious differences has increased since then. But is it safe, even today, to seek confirmation to the court as an open agnostic or deist, much less as a homosexual?

That question alone is one worth pondering, but Saletan digs deeper and quotes another essayist ebfore inviting us to think about "one's ability to describe onself":

What happened to Bork is a warning to any of us who would press a nominee to divulge her faith or sexuality. It's a portrait of how grotesque our country can become in its determination to expose and pick at the personal lives of public figures. The political threat is that unconventional sexuality or religion can destroy the nominee. But the moral threat is far greater. In the act of forced disclosure, "one's ability to describe oneself, one's freedom to say who one is, is peremptorily taken away," a great essayist once wrote. At stake is the most fundamental of human rights: "the ability to choose who one is and how one is presented, to control the moment of self-disclosure and its content."

Andrew Sullivan wrote those words 19 years ago. They were eloquent and true then. They are no less so today.

Yesterday I wrote that I thought Sullivan made a "compelling argument" when he said that we have a right to know whether Elena Kagan is gay.  Today I am persuaded by what Sullivan wrote 19 years ago.

Read William Saletan's piece for Slate here, and Andrew Sullivan's piece on outing from 1991 here.

Should we know whether Elena Kagan is gay?

It is not unusual for the marital status of nominees to the US Supreme Court nominees to be noted, for example Sonya Sotomayor (divorced) and David Souter (unmarried), there is a bigger question surrounding the personal life of Elena Kagan: is she gay?  Blogger for The Atlantic, Andrew Sullivan (who himself is openly gay), argues we have a right to know:

So Is She Gay?

It is no more of an empirical question than whether she is Jewish. We know she is Jewish, and it is a fact simply and rightly put in the public square. If she were to hide her Jewishness, it would seem rightly odd, bizarre, anachronistic, even arguably self-critical or self-loathing. And yet we have been told by many that she is gay ... and no one will ask directly if this is true and no one in the administration will tell us definitively.

In a word, this is preposterous - a function of liberal cowardice and conservative discomfort. It should mean nothing either way. Since the issue of this tiny minority - and the right of the huge majority to determine its rights and equality - is a live issue for the court in the next generation, and since it would be bizarre to argue that a Justice's sexual orientation will not in some way affect his or her judgment of the issue, it is only logical that this question should be clarified. It's especially true with respect to Obama. He has, after all, told us that one of his criteria for a Supreme Court Justice is knowing what it feels like to be on the wrong side of legal discrimination. Well: does he view Kagan's possible life-experience as a gay woman relevant to this? Did Obama even ask about it? Are we ever going to know one way or the other? Does she have a spouse? Is this spouse going to be forced into the background in a way no heterosexual spouse ever would be? A reader asks Jeffrey Toobin the obvious question:

From the description of your relationship with Ms. Kagan, I would bet that you have some insight on the claims of her sexual identity. One month ago there were reports that Ms. Kagan was gay and those reports were quickly followed by stern - offensive? - rebuttals by the Obama administration. This is apparently a big deal even though we aren't supposed to talk about "it." Mr. Toobin, did Ms. Kagan bring a date to your wedding? Why can't we discuss this matter? If she were married - to a man - there would not be silence. Would there be if she were married to a woman? Would she be nominated if she were?

To put it another way: Is Obama actually going to use a Supreme Court nominee to advance the cause of the closet (as well as kill any court imposition of marriage equality)? And can we have a clear, factual statement as to the truth? In a free society in the 21st Century, it is not illegitimate to ask. And it is cowardly not to tell.

Read it here.  In a follow up post, Sullivan then looks at the reaction of some conservative groups to Kagan's nomination:

Right Wing Watch rounds up reaction from the rump. Tom Minnery of Focus on the Family clarifies the stance of social conservatives:

Kagan's nomination is a triumph for liberal ideology and judicial activism. She has never been a judge, nor written a judicial opinion. In fact, she has very limited experience in the actual practice of law. Her resume reveals her to be an academic who has served liberal judges, liberal presidents, and liberal universities. Her entire career has been lived in a narrow slice of the judicial spectrum. Even with her sparse legal record, one thing stands out—her emotional and legal commitment to the LGBT agenda.

American Family Association and Americans For Truth are a tad more direct:

It's time we got over the myth that what a public servant does in his private life is of no consequence. We cannot afford to have another sexually abnormal individual in a position of important civic responsibility, especially when that individual could become one of nine votes in an out of control oligarchy that constantly usurps constitutional prerogatives to unethically and illegally legislate for 300 million Americans.

The stakes are too high. Social conservatives must rise up as one and say no lesbian is qualified to sit on the Supreme Court. Will they?

The days are past when this could be brushed under the rug. Let's have an honest debate, can we? The way to counter prejudice is through truth - not avoidance. For the right to oppose Kagan merely because she is gay - if she is - would be one more step toward their self-destruction. By staying mum, the Obamites may be playing yet another rope-a-dope. I just cannot see how in 2010, ambiguity is an option. I mean: who would claim that John Roberts' heterosexuality is somehow private? It is a demonstrably reported fact that there would now be no Protestants on the court - just Catholics and Jews. Why is this not an invasion of privacy, if asking someone about their sexual orientation is?

Read it here.  Finally, Sullivan then responds to Slate's Hanna Rosin, who, in a post for the XX Factor blog, argued the question should not be asked:

Hanna Rosin rules the question out of bounds:

As our own Emily Bazelon and Dahlia Lithwick pointed out last week, unless anyone comes up with actual proof that Elena Kagan is a lesbian—and NO, this is not an invitation to go hunting—the whisper campaigns and the whisper campaigns about the whisper campaigns should end. Whether that stops people from endlessly Googling “Elena Kagan” and “gay” is another story.

But, as Hanna notes, the president himself, by virtue of his criterion of picking Justices who have diverse experiences and have experienced discrimination, has already alluded to private facts about Kagan's life:

Law was not just an “intellectual exercise” for her, but something that affects the “lives of ordinary people.” Behind the law, he said, she understands that “there are stories of people’s lives.” This naturally led into a little biographical sketch of Kagan. We learned that she is the granddaughter of immigrants, that she comes from a family of teachers, and that neither of her parents is still alive.

Is Hanna really saying that a person's sexual orientation in today's society is less of an issue than the fact that she comes from a family of teachers or is the grand-daughter of immigrants? Please. The premise is absurd on its face.

Did Obama shy away from Sotomayor's ethnicity? So why is it somehow unseemly or a function of "whispers" to ask an obvious empirical question to which there is an empirical answer?

By the way, Hanna. I am not whispering. I am asking in the same voice and with same decibels as I would ask any question of a public official who may, in fact, rule at some point on the very constitutional grounds of my own civil marriage. The only thing that could conceivably put this question into the zone of "whispers" and "privacy" is homophobia - and yes, that means the homophobia of liberal journalists.

In fact, the entire premise of Hanna's post is that there is something wrong with asking someone in the public eye about their sexual orientation. There isn't. This is not the same thing as "outing" people. It is simply asking them to tell, and refusing to be co-opted by double standards. Kagan can refuse to answer; or she can tell the truth, whatever it is, and move on. Those are her options. But the press has only one professional option: to ask a factual question that deserves a factual answer.

But they won't. Of course they won't. There is almost a competition to refrain from asking - so as to burnish one's reputation for seriousness and integrity.

Read it here.

The reason I have reproduced all of Sullivan's posts on the topic is that I think he makes a compelling argument.  That said, I am very uncomfortable with the idea of "outing" anyone.  A person's sexuality is inherently a private and personal matter, and I think it is the prerogative of that person to decide to come out, if and when he or she feels comfortable doing so. 

(As an aside, I also think the position Sullivan takes is very easy for someone who has already come out and is openly gay.  Often I think there is an insensitivity among gay and lesbians who have already come out towards those who, for whatever reason, are yet to do so.  Ultimately I think that attitude is unfortunate and ultimately unproductive.  The gay, lesbian, bisexual and transgender community is better served supporting, instead of judging, one another.)

Nonetheless I think the issue of whether we should know whether Elena Kagan is gay is a difficult and interesting question, and my own thoughts on the matter are far from resolved.  I would be interested to know what you think.  Leave a comment on the blog, or post your thoughts on Facebook and Twitter.

PS. Slate's Jack Shafer approaches this issue from a slightly different perspective in "I Wish Elena Kagan Were an Uncloseted Lesbian":

The reason I advocate the nomination of a qualified homosexual is this: Only by sending one through the meat grinder of Senate confirmation—as we have with Catholics, Jews, blacks, women, and a Latina before them—can we begin to purge identity politics from the court. (Yeah, we're probably still in a time when there must be "black" and "female" seats on the court, but give it time.) By nominating a qualified gay to the court, the president would create an environment in which—eventually, I hope—a nominee's sexual orientation is given the same shrug we give nominees' religion, gender, race, or state of residence, and the nation will be better for it.

Hear, hear!  Read more here.

And don't forget to let me know what you think.

SCOTUSblog: "Special-edition round-up: Kagan nomination"

This evening as Tom confirmed earlier on this blog, NBC News’ Pete Williams reported that President Obama will nominate Elena Kagan to succeed Justice Stevens as an Associate Justice of the Supreme Court.  The Associated Press later confirmed this development as well, as did the New York Times, the Washington Post, CBS News, Politico, the Wall Street Journal, the Huffington Post, and CNN.  ABC News, FOXNews, Reuters, Above the Law, the BLT, and the Chicago Sun-Times also have coverage of the President’s choice.

At the Washington Post, Robert Barnes has commentary on Kagan’s background, as do Mark Sherman of the Associated Press, FOXNews, and NBC’s Mark Murray.  At the Atlantic’s Night Beat column, Marc Ambinder previews the next steps for the Obama administration in the confirmation process, and finally, Gerard Magliocca argues that Kagan is a “lackluster” choice for the nomination at Concurring Opinions.

via www.scotusblog.com

Advise and Consent

The trailer for the documentary Advise and Dissent, which examines the politics behind the nominations of Harriet Miers, Samuel Alito, and John Roberts to the US Supreme Court:

Advise & Dissent Trailer from Lumiere Productions on Vimeo.

Slate's David Plotz on his 15 minutes of FoxNews fame

Slate Editor David Plotz reflects on being turned into a punching bag by commentators on FoxNews:

Barack Obama at the White House Correspondents' Dinner

On the weekend Barack Obama tried his hand at comedy at the annual White House Correspondent' Dinner:

Conan O'Brien speaks

On Sunday night in the US, CBS broadcast Conan O’Brien’s interview with 60 Minutes, in which he spoke  about losing The Tonight Show:

Watch CBS News Videos Online

WSJ Law Blog: "Our Tech-Savvy Supreme Court"

The Supreme Court justices are a bright bunch. But chances are you’re not going to see them at next January’s CES show or ever watch them on a Web video demonstrating how to create apps for the iPhone.

That much was driven home, it seems, during today’s oral arguments in the case City of Ontario v. Quon.

The case examines whether a California police department violated the constitutional rights of an employee when it inspected personal text messages sent and received by a pager owned by the city of Ontario, Calif.

According to this post, at DC Dicta, the Court asked some questions of the lawyers which, well, the justices’ kids and grandkids could have answered while sleepwalking.

According to the story, the first sign of trouble came was about midway through the argument, when Chief Justice John Roberts asked what the difference was “between email and a pager?” (Cue sound of hard slap against forehead.)

At another point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked. (Cue sound of louder slap against forehead.)

Justice Antonin Scalia stumbled getting his arms around with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

Maybe the justices are against cameras in the court because when they think of cameras, they think of those huge cameras on tripods with the cloth to cover the photographers and the supernova flash-bulbs.

via blogs.wsj.com

Unfortunately I doubt the High Court of Australia would be much better.  Certainly when I worked at the Queensland Supreme Court, the level of technological know how amongst most of the judges was very limited indeed.  I posted a podcast on this topic last year, E-courts only work with e-judges and e-lawyers, that you can listen to here:

US Law Schools ranked

The latest US Law School rankings from US News & World Report have been leaked online:

• U.S. News Inside Title Page
• Schools Ranked 1-50
• Schools Ranked 50-100
• Specialty Program Rankings by Faculty & Tier 3, Part I
• Tier 3, Part II & Tier 4, Part I
• Tier 4, Part II
• Part-Time Program Rankings
• Law School Diversity Rankings

Here is the list of the top 50 Law Schools, including my alma mater Columbia at number 4:

Tier 1:
1. Yale
2. Harvard
3. Stanford
4. Columbia
5. Chicago
6. NYU
7. Cal-Berkeley
7. Penn
8. Michigan
10. Virginia
11. Duke
11. Northwestern
13. Cornell
14. Georgetown
15. UCLA
15. Texas
17. Vanderbilt
18. USC
19. WUSTL
20. GW
21. Illinois
22. BU
22. Emory
22. Notre Dame
25. Iowa
27. Indiana
28. Boston College
28. William & Mary
28. UC-Davis
28. Georgia
28. North Carolina
28. Wisconsin
34. Fordham
34. Ohio State
34. Washington
34. Washington & Lee
38. Arizona State
38. Alabama
37. Colorado - Boulder
38. Wake Forest
42. BYU
42. George Mason
42. Arizona
42. UC-Hastings
42. Utah
47. Florida
48. American
48. SMU
48. Tulane
48. Maryland

The Sarah Palin Network

Tina Fey reprised her role as Sarah Palin on Saturday Night Live over the weekend with a funny sketch about the "Sarah Palin Network."

Political Avatars

Political campaigns are often competitive and can get unpleasant at times but, as Jeff Greenfield reports, a new level of election aggressiveness has emerged on the Internet.Political Smear Ads Go High-Tech (and Oddball)

Watch CBS News Videos Online

via www.cbsnews.com

Search engine neutrality

A great deal of the debate on the regulation of the internet over the past decade has focused on net neutrality.  So it seems appropriate that on the eve of a new decade, there is a provocative op-ed piece in the New York Times on search engine neutrality:

AS we become increasingly dependent on the Internet, we need to be increasingly concerned about how it is regulated. The Federal Communications Commission has proposed “network neutrality” rules, which would prohibit Internet service providers from discriminating against or charging premiums for certain services or applications on the Web. The commission is correct that ensuring equal access to the infrastructure of the Internet is vital, but it errs in directing its regulations only at service providers like AT&T and Comcast.

Today, search engines like Google, Yahoo and Microsoft’s new Bing have become the Internet’s gatekeepers, and the crucial role they play in directing users to Web sites means they are now as essential a component of its infrastructure as the physical network itself. The F.C.C. needs to look beyond network neutrality and include “search neutrality”: the principle that search engines should have no editorial policies other than that their results be comprehensive, impartial and based solely on relevance.

The need for search neutrality is particularly pressing because so much market power lies in the hands of one company: Google.

...

Without search neutrality rules to constrain Google’s competitive advantage, we may be heading toward a bleakly uniform world of Google Everything — Google Travel, Google Finance, Google Insurance, Google Real Estate, Google Telecoms and, of course, Google Books.

Some will argue that Google is itself so innovative that we needn’t worry. But the company isn’t as innovative as it is regularly given credit for. Google Maps, Google Earth, Google Groups, Google Docs, Google Analytics, Android and many other Google products are all based on technology that Google has acquired rather than invented.

Even AdWords and AdSense, the phenomenally efficient economic engines behind Google’s meteoric success, are essentially borrowed inventions: Google acquired AdSense by purchasing Applied Semantics in 2003; and AdWords, though developed by Google, is used under license from its inventors, Overture.

Google was quick to recognize the threat to openness and innovation posed by the market power of Internet service providers, and has long been a leading proponent of net neutrality. But it now faces a difficult choice. Will it embrace search neutrality as the logical extension to net neutrality that truly protects equal access to the Internet? Or will it try to argue that discriminatory market power is somehow dangerous in the hands of a cable or telecommunications company but harmless in the hands of an overwhelmingly dominant search engine?

Read the full op-ed here. 

JibJab: Never a Year Like '09

2009 would not be complete with a JibJab video looking back at the year:

Try JibJab Sendables® eCards today!

Learn how they made the video here.

“Seinfeld and the Law: ‘A Seminar About Nothing’”

The Volokh Conspiracy drew my attention to this Continuing Legal Education online seminar in South Carolina:

Fans of the famous 90‘s sitcom, Seinfeld, may not have realized it, but they were watching a show rife with complex legal issues. Not only were there numerous lawsuits and potential lawsuits within the storyline of the show, but one episode even sparked a real-world suit against the network. In this unique seminar, Robert Rushing uses the milieu of Seinfeld to discuss a wide range of legal concepts. Don‘t miss this chance to brush up your legal knowledge in a unique and entertaining way.

The following is a list of each episode mentioned and the related legal issues:

“The Puffy Shirt” — Contract law, meeting of the minds, the Mirror Image Rule, damages
“The Wink” — Real property conveyances, contract law, actionable conversions
“The Old Man” — Elder law, conservatorship, competency, informal agreements
“The Seven” — Contract law, promises, rhetoricals, warranties, ADR, quantum meruit
“The Soup” — Real property
“The Soup Nazi”- Libel, false light cases, intellectual property (real-world lawsuit)
“The Serenity Now” — Products liability, disclaimers, causation
“The Alternate Side” — Tort law, proximate cause, liability and agency
“The Pie” — Tort law, intellectual property
“The Sniffing Accountant”- Libel, slander per se (in-show lawsuit)
“Newman‘s Speeding Ticket” — Ethics, perjury, Rule 303
“The Marlborough Man” — Ethics, ex parte communication, Rule 7–104 (in-show lawsuit)
“The Finale” — Character evidence, modus operandi, relevancy (in-show criminal trial)

I've often thought it would be fun to run a Law and Popular Culture elective, but I wonder if enough students would be interested in studying something like that in Australia.

An unlikely YouTube star from the New York State gay marriage debate

techPresident reports on an unlikely viral video star:

Staten Island state senator Diane Savino isn't exactly a household name, even in New York City political circles. But a YouTube video of her impassioned, funny speech on floor of the New York State Senate in favor of a marriage equality law -- which blended heartfelt testaments to the quality and durability of the intimate relationships of her gay friends with sassy references to a reality TV program involving a dwarf bachelor -- is being widely passed around through blogs and Twitter. The video, posted by the technology team at the New York State Senate, has been viewed more than 160,000 times in the last 48 hours. The senate's second most popular video, involving debate over an esoteric tax provision, has about one-tenth of the views.

Roger Avary's tweets get him into (more) trouble

On Tuesday I blogged about how Hollywood scriptwriter and director Roger Avary was tweeting from prison (see here).  However, in a curious turn of events, it now turns out that maybe he wasn't in prison at all.  Gawker has the story:

McMilian's blog post led authorities to realize that Roger Avary wasn't in prison at all. Rather, he had somehow ended up on a work furlough program, which allowed him to hold a day job and merely bunk up at night with fellow furloughees. This is both not the hardscrabble prison life everyone thought @avary was describing, nor the prison sentence Roger Avary was supposed to be serving. So guy got nabbed and they sent him to real prison, prompting @avary to tweet:

LAT is preoccupied with how Avary ended up in furlough instead of jail, but what I want to know is, (1) Was @avary faking his prison badassery, since he was never in prison in the first place? (2) If so, was it a ploy to make us think he is irrepressibly hip and A Clockwork Orange-y? Because that would be pretty lame. (3) Alternately: Is the jailhouse equivalent of a work-study program actually as disgusting and terrifying as I always imagined real prison to be? Meaning @avary wasn't trying to deceive, it's just that we soft-bottomed media folks foolishly assumed that his scary tweets were from the belly of the beast, when in fact they represent a relatively pleasant penal existence, and when @avary gets to real prison it's going to get really crazy.

Read more here. 

Tweeting from prison

The Telegraph reports that Hollywood scriptwriter and director Roger Avary is tweeting from prison while he is serving time for manslaughter:

Roger Avary, who received an Academy Award for Pulp Fiction, is posting daily tweets with grim, sometimes poignant tales of prison life.

Avary was sentenced to serve a year behind bars in October after admitting causing a car crash that killed his passenger and injured his wife.

Since then the @avary account on Twitter has been updated more than 20 times with tweets apparently chronicling his days inside Ventura County Jail in California.

While the authenticity of the account has not been verified, a friend and former colleague Neil Gaiman recently posted a tweet identifying the tweeter as the incarcerated Avary. He wrote: "It's riveting, horrible strange. Jail in 140 character lumps."

Avary's tweets, if genuine, point to a grinding prison regime enlivened by occasional crises.

Here are some of his tweets:

You can follow his stream here.

Moving Numbers

Zolitics, which describes itself as "the world's first political entertainment network", is posting a funny, smart political web series called Moving Numbers.  Here is a trailer:

Moving Numbers "Truth" Trailer from Zolitics on Vimeo.

You can watch the series here.

Sesame Street turns 40: one, two, three ... forty

This week Sesame Street is turning 40.  To celebrate I thought I'd embed my favourite Sesame Street mash-up video, The Count Censored:

The noughties: "Decade in Review"

Newsweek 20/10 marks the first 10 years of the new century:

Audioboo: Sunday morning political talk shows

I've posted a quick Audioboo review of the main Sunday morning political talk shows in the US from the perspective of an US political junkie based in Australia:

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.