Archive for the 'The Internet' Category

LiveBlogging the FCC Conference Part IV

Posted in cyberlaw, The Internet on February 25th, 2008

Video Comments:

Sarah McKee (retired Federal Attorney): Wanted to hear from non-techies how the ‘net improves their lives, and about ‘net neutrality.  She plays music for cancer and other hospital patients.  To organize them, they need the internet, without it they would not be able to operate.

Copyright Bullies?

Posted in cyberlaw, Intellectual Property, Practical Lawyering in Cyberspace, The Internet, The Law on September 12th, 2007

The first week in our Lawyering in Cyberspace Course dealt with Cease and Desist letters, including those sent by copyright holders to individuals.

In one instance, the NFL had YouTube remove a video that a law professor had posted, mostly consisting of their overreaching copyright notice. She purposefully included some footage of the game itself, and entitled the video “SuperBowl Highlights.” This layered the irony of the act; her point about the wild claims of copyrights within the SuperBowl would be made not just by its repetition, but by the act of removing that repetition under a copyright assertion.

My first reaction to the conflict was visceral, and sprung not by the removal but by the claims I saw in that video made by the NFL:

This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.

What? Accounts? granted I have far to go in my understanding of copyright, but I believe you can only copyright expression, not facts. The NFL’s purported prohibition from talking about what happened in the game is therefore claiming more rights than they have. This reminds me of those little liability waivers in contracts of adhesion which parties have no hope of upholding in court, but nonetheless serve to discourage people from suing.

Furthermore, although fair use is a fuzzy doctrine, it looked pretty clear to me that this was well within the bounds of it. The purpose and character is non-commercial, and indeed political, the very essence of what is being protected. The NFL would seem to have no real property interest in the copyright notification itself (who is going to buy that?). The clip of the game itself is small and uninteresting, with no market in and of itself.

The initial takedown, prompted by NFL’s assertion of rights under the DCMA and complied with to keep YouTube within the Safe Harbor, appears to have been the result of mere carelessness. An assertion the NFL sloppily made of similarly-titled videos and/or those whose screen shot showed the game.

I’ll pause here, since this itself is problematic. Not all YouTube users are savvy law professors, who know they are in the right. Many would have no clue how to respond appropriately to get the video reinstated, a complicated procedure that requires specific claims and statements, and consent to jurisdiction they may fear making. The result will therefore be that many fair use videos will be removed, and free speech wrongfully silenced. Of course, the administrative hurdles to finding, watching, and evaluating every video present no clear alternative.

After the reinstatement, the NFL re-asserts its copyright, causing a second takedown. This is more focused, and individual. It is therefore more offensive, since they had a clearer indication that there were legitimate fair use claims here, perhaps even to the point of it being obvious there was no copyright violation. Since there was no harm to Viacom in showing the clip, as in taking away from their ownership in the game, why did they do it? At that point it becomes suspicious – they may be attacking her for the message itself.

Second Life – Part One (A Changing Society)

Posted in cyberlaw, Cyberlaw Project, Second Life, The Internet, Wikis on December 8th, 2006

The course has simultaneously been going on as an extension school course and a project for the internet community at large. Many of the meetings have been taking place in Second Life, a virtual community. In the beginning of the course, we were instructed to download the program and create an avatar. We were later paired up for tours of Second Life (but of course by then I had begun exploring on my own).

I was a beta tester for the Sims Online. In college, Sim City was about the best way to waste time; a shared addiction to that game united me with another young dormer who is now (11 years later) my husband. When the Sims was released I was nearly as enthusiastic, and would spend way too much time teaching my Sims to cook, making sure they slept. The Sims Online was a place to unite with others playing the game. You could join up and make pizza for profit, combine your profits to buy land and build a house.

When the beta test was up, I was offered the chance to stay on, keep my character and her money and all she had accomplish. Perhaps at the cost of all I had accomplished. A monthly fee plus my spare time was too high a cost . . .

Second Life, on the other hand, is free and far less addictive. Instead of doing repetitive tasks to earn money, you can create and share items, which people do, freely. Since an item can be replicated, it is far more of a collaborative environment. You can earn money in-game, and I’m sure people do, but many people are just there to learn, to create, and to share.

It does have a strong connection to many other things in the course, such as Creative Commons, Copy Left, the GNU Software License, and Wikis, especially Wikipedia. People operate by something other than market forces, in a decentralized way to build upon what each other has created and improve it. This is more than just technology, this is a change in culture itself fostered by that technology. Perhaps those of us who marvel at the technological age we are living in will not see it until the future, but we might be living though changes larger than we realize. . .

Project Idea

Posted in The Internet, The Law on September 21st, 2006

I’m beginning to formulate a tentative idea for a project for the class – potentially a Wiki. At its core, the class is about argument in the medium of the internet. I think i can take a particular interest of mine – MalWare – and create a proposed plan of attack that directly bears on the theme of the class.

I spent my 1L internship addressing some internet issues – including malware. I am well aware that it can be a tricky legal issue. Although some sites ‘drive by’ download these programs onto your computer, most come bundled with “free software” that is willingly downloaded. Since a user would not download the software if they knew it would hijack their computer, malware distributors never clearly disclose what is happening. The amount of disclosure ranges from none (clearly illegal) to a “click for the EULA” or EULA box in the consent box to at best a warning to the user that the software they are downloading “comes with free MyWebSearch”.

The two last are trickier issues. The Malware distributor i s clearly taking advantage of the fact that noone click on these “Terms and Conditions” or reads them. Indeed, the internet would be a cumbersome venture if we had to sift through pages of small font leglease anytime we had to consent to continue. Legally speaking, a judge can find this argument unpersuasive – and hold that it is simply the user’s problem that they didn’t read the terms. Depending on how vague the wording, how small the font, whether the terms are actually there or just a hyperlink – there still may be legal ground.

Full disclosure that another program is being installed is a more difficult case still.

Yet even in cases of clear lawbreaking, I don’t think that our AGs and the FTC can keep up with the amount of malware that is out there. Put those two factors together, and it is most definitely time for users of the internet to take things into their own hands. And here I hark back on my college days. I think we need activism.

What form it will take is up for debate. That is the very debate that I am hoping to get out of participants in CyberOne. Some possibilities are:

1. Massive boycotts of companies that are known and frequent purchasers of ad space in malware, such as Vonage. Without these companies sending out checks for each click, there would be no revenue, and thus no reason to send out malware (aside from true, identity-thieving spyware)

2. Activism, in the form of a letter-writing campaign or a ‘click-only’ boycott to those who advertise the adware itself. Today I saw an ad for SmileyCentral on MySpace and posted a bulletin advising people not to click on any ads in MySpace until they stop running banners for known malware. I asked that people repost the bulletin. I know the chances are slim that my bulletin will be circulated, but theoretically if it did and people took heed, MySpace would see its click-to-visit ratio drop and lose revenue – removing the incentive for taking money from such advertisers. It’s the same reason that you don’t see PeTA commercials on TV (and believe me, they have the money and try). They know they would offend their viewers and other advertisers.

I know that getting people to stop using MySpace would be difficult, but how difficult is it not to click on an ad? If other sites, such as search enjines were accepting ads from Claria (formerly Gator), AskJeeves, WeatherBug, etc, we could organize something similar, until people distributing malware find it difficult to get people to find their site in the first place.

The internet makes it easy to organize and get word around. If people could do these things in real life with much higher transaction costs, why can’t they do it here? Spyware is something people get angry enough about to participate. All it would need is the right momentum.


Posted in The Internet, Wikis on September 19th, 2006

I have previously discussed Wikipedia in relation to the way it is run and edited. I would like to turn now to discussion of Wikipedia itself.

A friend of mine is a year into his PhD, and in the grand tradition of grad students everywhere, is helping teach courses to the undergrads. Having spent some time teaching, I asked him how that aspect of the program was going. His one complaint? Students were using Wikipedia as a source, and could not understand why this was not allowed.

The answer to that was mentioned in class, and is simple. Professional editors vet each article; they are written by scholars and fact-checked before publication. Once published, it would be hard for someone to break into your home and edit the articles. Even though such vandalism is often caught quickly on Wikipedia, it is still possible. And while encyclopedias have been found to have nearly as many mistakes, they are still considered, for these reasons, to be a more verifiable source.

Although I do have to ask – who uses encyclopedias period as a source for a college paper? I seem to remember that being something that ended in seventh grade, when our subject matters turned more complex and more in-depth research was required. Except for the occasional tangential topic, you’re going to need a more heavy-handed resource to cite.

In any case, one of the ideas I came across in my venture into Wikipedia article writing was that it was, after all an encyclopedia. This is one of the 5 Pillars of WP itself. It states:

Wikipedia is an encyclopedia incorporating elements of general encyclopedias, specialized encyclopedias, and almanacs. Wikipedia is not an indiscriminate collection of information. It is not a trivia, a soapbox, vanity publisher, an experiment in anarchy or democracy, or a web directory. Nor is Wikipedia a collection of source documents, a dictionary, or a newspaper, for these kinds of content should be contributed to the sister projects, Wikisource, Wiktionary, and Wikinews, respectively.

Wikipedia is not the place to insert your own opinions, experiences, or arguments — all editors must follow our no original research policy and strive for accuracy.

So, for example, you are not to make an entry about your mom. She may be grand, it may be 100% true, but it doesn’t pass the notability test. It is worth noting that even this is not a rule of Wikipedia in the true sense. Jimbo Wales, founder of Wikipedia, (and fellow at the Berkman Center, which is behind the course itself) has given his official imprimatur to the notion that there are no rules etched in stone. Nonetheless, as discussed previously, there are some policies and guidelines that have gained such universal acceptance on WP that they are, for the most part, followed.

Even this idea cannot be followed consistently. If you do make that entry about your mom, one of the volunteers who has devoted enough time to editing to gain sysop status will likely flag it for deletion and insert a section on your user talk page about why. I assume that most will accept such a decision, as I did. (my entry was not about my mom, but fell in more of a grey area that nonetheless fell outside the strictest sense of the notability standard)

But what about entries for current events? In the WP article about spinach, there is a section on the recent e coli outbreak. Is this notable? Certainly. Is it encyclopedic? Well, not quite. If you traveled 20 years into the future and opened the Encyclopedia Britannica (assuming, of course, that Wikipedia and other online sources don’t kill it), I think it is unlikely that the entry on spinach will contain a paragraph, letalone a long section, about the outbreak. It is notable here and now, but in the greater scheme of things it is not a notable part of the definition and history of spinach itself.

Is there a little warning box marking it for deletion? No. Although one like-minded person on the discussion page did state that:

IMO the outbreak, while notable as news, is not particularly relevant to the spinach article and deserves footnote status at best. Perhaps a note that spinach, like all leaf vegetables, has been occasionally contaminated with E. coli. — WormRunner 19:42, 19 September 2006 (UTC)

and there is a box suggesting a split (the event itself would be an entry), by and large the discussion has been limited to the nature and content of the section itself, not its propriety. The WikiPolice have added boxes for expansion, cleanup, and an update on the section, giving a tacit confirmation that it does belong in the article.

And so we see a contrast between things that are just plain not notable and those that do not warrant notability in a timeless, encyclopedic sense. This may well be entirely proper – it is, after all, a constantly changing and updating medium. As time passes, the article will be further edited. I suspect that when enough time has passed, the section will shrink, become its own historical section (in the broadest sense of ‘history’ imaginable) or even be edited down as that one user suggests to a mention that there have bee, from time to time, outbreaks.

In an ever-changing medium like Wikipedia, is timelessness necessary or even desirable? And if not, have we created a new kind of encyclopedia (aside from the obvious ways in which we have) one which documents notable elements of the here and now?

Wikis and Contributions

Posted in cyberlaw, The Internet, Wikis on September 19th, 2006

Among the projects assigned to the law students is the ‘adoption’ of a week of class, with a particular topic. We are all free to edit the wiki. At first, I assumed I would dive right in. After all, after only one day of class I had submerged myself in the Wikipedia I had previously only waded in. (OK, enough swimming metaphors). I had written two new Wikipedia entries, instead of just making slight edits. Within a day, I was shot down by the sysops, who had posted a ‘welcome’ message in the discussion portion of my userpage and questioned the notability of my topics.

On one, they were right. I headed over to the pages that discussed notability and the discussion page paired with it. There was no complete agreement – and so with the organization (or lack thereof) of Wikipedia I could have simply disputed the deletion, pointing out that there are no hard and fast rules about how notable something needs to be. After all, there is no lack of band space, just a concern about disambiguation (crowding Wikipedia with many minute essays with similar names to notable ones, causing confusion) and just an over saturation. And, after all, it is an encyclopedia.

But there did seem to be general consensus about what should and should not be added in a particular area. The communitarian (anarcho-syndicalist commune?) format of Wikipedia works because people generally follow such consensus. I realized that there was no set consensus for the other subject, so I edited and expanded the entry to make it more obvious what was notable about the subject.

The finishing comment from the sysop urged me to clean up the article. I bristled a bit at that. Wasn’t the whole idea of Wikipedia that the entries are the result of a drafting process by other users? Why not just let it sit, letting others expand and write the entry, achieving the neutral tone that is so much easier with many cooks (I only promised not to make tortured analogies about swimming, remember?)

So back to my Week project – why had I done barely anything? Perhaps I was hesitant after being chastised by the volunteer so prolific he was crowned admin. But the class wiki is not the same, indeed expansion is in our interest at this stage, if only to ‘get things started’. I think the very idea that I bristled it had been compounded by the group aspect. Just as I expected others to ‘clean up’ my article, I was taking it for granted that the fact that other names were on my list meant that they would be expanding it – taking the pressure off of me. And putting it on. After all, this is a group project – who am I to decide its direction or express a point of view?

This is not a sitcom of a blog entry. I do not have some comment about how I figured it all out in the end and wrapped it up into a neat little package. I suppose that is why this is a class– and this is the stage where recognizing what I need to figure out is a necessary first step. The others will come later.

The internet and education

Posted in The Internet on September 16th, 2006

When I entered college, the internet was nothing like it was today. HLS has us manage our courses online, adding and dropping classes and on-campus interviews, viewing assignments and countless other things on the internet. In contrast, the internet was barely used by my undergraduate school. When we entered, the dorm computers were still DOS-based and we had no college domain. We had 25-character email addresses with funny symbols and the word ‘bitnet’ in there somewhere, stemming off of CUNY’s domain. We did expand computer labs and have web access (and abbreviated email addys) by the time I graduated, but the extent of the usage for academic purposes was still limited a single professor who had a website for one class.

This is not a tech-backward college – it was the first on the NYC area to have a campus set up for wifi access. It was just a different time. To give some perspective, this was about a year after Yahoo was started, and a scant few months after it was known as “Jerry and David’s Guide to the World Wide Web”.

The computer labs were used for gaming, for e-mail, for ICQ and, mostly, for typing papers. (There wasn’t much quality research to be had on the internet.) And as to the latter, it was quite often a source of distress. Windows would crash. A lot. I know that some kids today think they know crashes- they don’t know crashes.

It was almost guaranteed that if you stayed on a computer long enough, it would freeze for no apparent reason, and nothing short of a hard reboot would get that mouse moving again. Sometimes it would just shut off. In these days before AutoRecover, AutoSave was our best friend. If we had accidentally logged onto a computer that didn’t have autosave engaged – disaster. Cumulatively, I probably lost 20 pages worth of papers. When you have just spent hours writing a three page paper (this was also a time when that seemed like a lot, somehow) to have it vanish was heartbreak. I am sure the rewriting process managed to deliver a better finished product, but that was no consolation at the time.

I think that is part of the reason why I have a different philosophy on technology than some of my young classmates, for whom Word was always more than an oft-crashing word processor. I still often take notes by hand – I am not dependent on computers. And yet I am anxious to use technology in many ways and study it – it is still something exciting to me because I don’t take it for granted and can remember a time before it. That background delivers an apparent contrast of shunning and embracing technology at the same time.

Day One

Posted in cyberlaw, The Internet on September 11th, 2006

I just sat in on my first session of Cyber One: Law in the Court of Public Opinion. Many of the projects and assignments of the course will use internet technology, such as blogs, wikis, Second Life, and possible webcasts. Were are encouraged to participate in the Class Wiki and indeed are assigned to create a blog? wiki? for one week of the course in collaboration with other students.

I thought this would be an ideal medium to keep track of the course in my own personal way, to keep an account of my thoughts and to use as a sandbox for possible contributions to the materials. Of course, there will be much that I will want to post here that will be of little use to the class as a whole, so I saw a need, apart from perhaps a userpage on the wiki, to have my own little space.

Possible topics include reflections on the course materials, collections of links to them and other useful sources, and my own thoughts on the matter.

Today we covered very broad, philosophical topics. The emergence of self is directly keyed to the recognition of and interaction with others; it is through our thoughts on their own views of us that we are able to develop a sense of self. The riddle explains it, and it will be tied into the course through a similar version of that interaction on the internet.

The reading was quite thought-provoking. The internet is unique in that it encourages collaboration without formal or structured relationships and develops the good of information without incentives. So we have a non-market production, previously rare or unheard of. I saw a lot of myself in it, thinking of the countless wikipedia articles I had helped edit, only a handful now contain links to my website (and those only when on-topic). Indeed my website and my news blog are information goods I created without incentive. Well, perhaps the small incentive of links to my CafePress store. Still, that is a lot of work for a mere $70 in t-shirt commissions.

The course reflects back on itself, and on this theme in two ways. The book used for the site was not assigned and stocked in the bookstore, but links to the pertinent sections are available from several sources online for free. By providing his book without royalty, the author has at once demonstrated his theory, established and information good (although this one of less questionable value) without a market incentive. Additionally, Prof. Nesson is planning to lobby to offer the course pass-fail, so our contributions will likewise be less incentive-based.

That being said, embarassment and pride are the most traditional forms of incentive used here; grades are determined in many courses by a single exam and class participation is elicited by random cold-calling in the infamous Socratic Method. Students who showed up to a single session of one class (and to zero of the other courses) are still strutting around campus, implying they at least accomplished passing grades without participation. The incentive of grades is therefore not sufficient to explain participation, (from the vast majority who do show up) especially when mediocre grades are no bar to sucess afterwards.

Yet this is a community, and although many classes contain 80+ students, there is still a sense of accountability, of identity that is not found in the internet. Therefore, the motive behind less obviously incentivised behavior there is not so easily explained.

2400 Baud

Posted in The Internet on September 11th, 2006

You see, I am semi-unique in that I was an early individual user (as opposed to university and government user) of the internet. Back in those days, (1993) most home users were restricted to dial-up accounts; although my friend would beta test a cable modem for his dad’s cable company less than two years later, and universities and businesses had T1 lines. Downloading photos was a major committment on a 2400 baud, and indeed the world of BBSs is distinct in many ways from the internet today. At that connection rate, chat, MUDS and other text-based enterprises populated the internet, and dial-ups were often local affairs. (Although AOL did have nation-wide dial-ins, it sucked even worse then than it did today, it being early on in the days of hours of busy signals)

This aspect of BBSs made them truely unique. Although we did have users from other parts of the countries telnet in occasionally, most screenames you saw in the main chat were local. Regular “meets” in real life transformed the medium into a sort-of virtual version of an actual reality, a way to stay in touch with those who you had run into Nathans, or Fuddruckers, or Donuts.

Several people I met on my first BBS are still close friends today; at least 5 were at my wedding. Two started their own internet database programming company, and by a combination of genius, hard work, talent, and being early adopters were able to secure Sam Ash as a client. Building on this, they now have Wall Street offices and a dozen employees, and clients such as the US Navy and Douglass Elliman. It was quite a bit more fun to eat lunch at their offices, under giant murals of my friend’s face made from dozens of printed sheets, than in the stuffy, redwell-filled law office I worked in.