Charlie Leadbeater has a terrific post on the threats posed by the fact that The Cloud (as in “cloud computing”) too often actually is a recentralizing of the Net by profit-seeking companies.

The easiest example cited by Charlie is Google Books, which provides a tremendous service but at the social cost of giving a single company control over America’s digital library. The problem here isn’t capitalism but monopolization; an open market in which other organizations could (the pragmatic “could,” not the legal or science fiction “could”) also offer access to scanned libraries would create a cloud of books not solely controlled by any single company. (The Google Books settlement threatens to rule out competition because without an equivalent agreement with publishers and authors, any other organization that scans and provides access to books runs the strong risk of being sued for copyright infringement, especially when it comes to books whose copyright holders are hard to find. The revision of the Settlement is less egregiously monopolistic.)

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It took a bunch of googling (thanks!) and some experimentation, but the following seems to work on a Mac (snow leopard) to send email programmatically, using RealBasic:

Dim mail as EmailMessage
Dim SMTPSocket1 as SMTPSocket

// create an instance:
SMTPSocket1 = new SMTPSocket

// The name of an available SMTP server:
SMTPSocket1.address = “smtp.YOURSERVER.com”
// The port number of the server:
SMTPSocket1.port = 25
// Your username for the server, if nec.
SMTPSocket1.Username=”yourname@yourserver.com”
// Your password:
SMTPSocket1.Password=”yourpwd”

// Create a new message:
mail = New EmailMessage
// The address you want it to come from:
mail.fromAddress= “your@address.com”
mail.subject= “Your Subject”
// The message:
mail.bodyPlainText = “Testing. Testing. Is this thing on?”
// Alternatively, encode message in HTML:
mail.BodyHTML = “<u>Testing</u> Is this thing <blink>on</blink>?”
// If you want a header:
mail.headers.appendHeader “X-Mailer”,”REALbasic SMTP”

// The address you’re sending it to:
mail.AddRecipient “person@somwehere.com”
// cc someone:
mail.addCCRecipient “another@recipient.com”

// Add it to list of messages:
SMTPSocket1.messages.append mail
// Send message:
SMTPSocket1.SendMail

// Wait for the sending to be done if you’re going to send another
while SMTPSocket1.BytesLeftToSend > 0
  SMTPSocket1.poll
wend

Please correct any boneheaded errors I’ve made. Thanks.

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After watching President Obama at the Republican Caucus, it’s clearer than ever that press conferences need to go the way of press releases. They are just too constricted for the opportunities and temper of the new connected age. The reporters are too interested in getting headlines, and would rather appear fair and balanced than chase down the truth. We do better, it turns out, when the President is questioned by people who can acknowledge that they really, really disagree with him.

So, what do we replace press conferences with? Or, more realistically, what can we supplement them with?

We know that Question Time in the British Parliament works well in Britain. But, it’d be good for democratic reasons to open it up to The People. Also, why should you have to disagree with the President to press him on an issue?

The problem, of course, is deciding who among us gets to ask a question. So, how about if questions were awarded to people who participate in particularly constructive ways , on any side of an issue, in the comments section of the White House blog (once comments are allowed)? This would be a mighty incentive for engaging civilly in the comments section.

But, then we’d need a way to decide who to pick. If it’s done algorithmically (e.g., have two buttons: I like this comment and I disagree with this comment), it can be gamed. If it’s done by human editors at the White House, it’s subject to charges of favoritism. So, how about if two or three known and respected people in their communities were chosen to select questioners from among the commenters; these people would represent different political views. New selectors would be chosen for each Presidential Q&A session.

Obviously, I don’t know exactly how to do this. But, in the Age of the Web it seems clear to me that we need to supplement press conferences with forums that replace objectivity with transparency, timidity with passion, and professionals with all of us.

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The weekly Berkman Buzz … some of what Berkpeople have been blogging about:

Ethan Zuckerman finds a box of rubber duckies in the forest.

John Palfrey provides a view into Joel Reidenberg’s “Transparent Citizens” talk.

OpenNet Initiative reviews the past year in Internet filtering and surveillance.

Judith Donath reflects on the complexities of deception.

Internet & Democracy discusses a recent DDOS attack.

Weekly Global Voices: “Russia: Anti-Government Protest Covered By Bloggers, Ignored By Media“

CMLP unpacks a decision on anti-SLAPP in Massachusetts, on journalism versus activism.

Dan Gillmor broadens the mission of journalism education.

ProjectVRM makes the pile higher.

Christian Sandvig: “Ich bin kein Erving Goffman!”

Doc Searls returns to Borg’s Woods.

As a non-ethnographer, I learned a lot from Christian Sandvig’s frank and amusing post about how scholars choose topics. He urges his colleagues to study large, important organizations even though they’re hard to penetrate.

And Dan Gillmor lays out the post-print journalism school curriculum, not so incidentally indicating how journalism as a profession and an institution is being redefined.

Also, John Palfrey’s live bloggage of Joel Reidenberg’s talk on transparency’s effect on the legal system was very helpful – and provocative – for those of us who missed the talk.

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In the spirit of my Be A Bigger A-hole Resolution, here’s a video of my talk at Reboot this summer. It leads to “Is the Web moral” segment, based on a talk I gave at the Drupalcon a few months before.

In it, I claim to be a cyberutopian (gosh the Web is wonderful) and a Web exceptionalist (the Web is way different from what came before), but not a technodeterminist (the exceptional goodness of the Web won’t happen by itself.)

[Later that day:] Ok, fine, if I’m going to stay true to my Resolution: I’m going to be on HubSpot.tv today at 4pm EST, talking mainly about cluetrainy marketing stuff, I think, although I hope we also touch on some other stuff as well. (I think I’m going to start prefacing the titles of this a-holic posts appropriately.)

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I woke up this morning with an idea to develop. I’m posting it here prematurely. Ironically (as you’ll see), I want more time to argue for it and tease it out. In fact, in part because I have to prepare for (= rewrite) a talk I give this morning, I’ll leave it at something like Twitter length: We will of course continue to write book-length, long-form arguments, but wide-form arguments are becoming more important (more important than they were and perhaps more important than long-form arguments). Wide-form arguments are spread out across the Web, and develop and apply an idea.

Yes, there are advantages and disadvantages, gains and losses. But, the assessment of them should (in my opinion) begin with an honest look at how important long-form arguments actually have been. It seems to me that most of the long-forms we think of as examples are actually a type of wide-form performed by a single person: Here’s an idea, and here’s some of its implications. The idea itself frequently is a short-form argument. Wide-forming the argument can develop the idea in unexpected ways and can apply it in unexpected circumstances.

Anyway, gotta go.

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As part of my Be A Bigger A-Hole resolution, let me note that the Harvard Business Review blog has just run a post of mine that looks at the history of the DIKW pyramid and why it doesn’t make that much sense.

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Joe Karaganis, of the Social Science Research Council, is giving a talk at the Berkman Center on a six-country study on media (music, film and software) piracy. The study began in 2004 and should be available in March.

NOTE: Live-blogging. Getting things wrong. Missing points. Omitting key information. Introducing artificial choppiness. Over-emphasizing small matters. Paraphrasing badly. Not running a spellpchecker. Mangling other people’s ideas and words. You are warned, people.

“The elephant in the room” they thought was piracy. Previous studies on access to media tended to avoid the issue of piracy. “The media ecology is still an ecology of piracy.” “We saw a role for a broader social-scientific approach to these issues.” The point of diminishing returns had passed for increasing the strength of IP laws, he says, so countries have been focusing on enforcement. “We began to frame a project that would ask a different set of questions.” It wanted to look not only the costs of piracy, but also at the benefits especially in developing countries. At first, they were more interested in skeptically examining industry reports, but many others started doing this, so it became less of a focus. They’ve tried to separate piracy and counterfeiting, which are usually considered together, because “they have less and less to do with each other in actual practice.”

Three areas of research:

Pricing: The persistence of high and relatively uniform media prices in the developing world; the industry wants to protect the value of their goods in Western markets rather than worrying about making it available in the developing world. Uniform and high prices plus poverty is pretty much the recipe for piracy.

The structure of policymaking: The primary role of the RIAA is to filter info about piracy into the US Trade Representatives and other policy-making organizations, through the IIPA. The IIPA has stimulated many studies on piracy globally and ahs set the terms of the debate.

Thge organization of enforcement.

Joe shows a table of prices of Coldplay’s Viva La Vida in six countries. The legal price ranges from $8.50 in India to $20.50 in S. Africa (US dollars), but compared to the local incomes, the price is $760 in India and a “mere” $75 in Mexico. But the pirate price in India is $0.40-$1.2, with a corresponding drop in the price compared to local income. The prices are much lower for legal copies of domestically-produced CDs. Same is true for movie DVDs. Where a local company owns its distribution, the prices tend to compete with pirates. Joe says that over the past 10 years, the price of pirated copies has dropped to very close to marginal prices. We’re at a transitional moment, he says, to purely digital media.

He shows a chart of the structure of policy-making organizations, with industry associations feeding into the IIPA, which hands them off to the USTR, which then passes them through 85% of the time. Joe says the study has spent a lot of time unpacking the IIPA’s annual table of losses due to piracy in multiple countries; the data is opaque, although it’s becoming less so. (The IIPA does not compile info about the US.) The table shows “levels,” i.e., what percentage of media in a country are pirated. In Argentina, it’s 75% of business sw. In Brunei, it’s 100% of music.

A questioner points out that not every pirated work would have been purchased if it could not be pirated. Joe says the report goes into the methodological terrain pretty deeply. But, he says, “the default is secrecy” in these reports. “All of this is a black box, and very deliberately so.” He says that their credibility has so eroded that they’d do better to become more transparent.

The USTR can put you on a watch list, priority watch list, and a priority foreign country list “which is a fast track to sanctions.” The acceptance of the WTO, however, meant that sanctions could not be applied to WTO members (because it requires multilateral processes), so the sanctioned countries graph flatlined. The number of warnings, however, went up.

There are few prosecutions in most countries, but lots of raids to confiscate goods. The raids become the punishment. “The industry groups have successfully enlisted the police” but have run into obstacles on the judicial end. In the few cases that can be prosecuted, there are “spectacular punishments.” There has been competition for enforcement resources among companies that have access to them. The industry is so woven into the enforcement process, they can direct and even fund the raids. “There’s just no boundary between public and private power.” Film companies are the best at deploying state resources. The demand for enforcement gives rise to business models, starting with bribing the police, to blackmailing people who have been detected with infringing materials.

Q: Is it understood by the populace that they’re doing something illegal?
A: Yes, but it’s an everyday activity.
Q: Are people worried about being caught?
A: Other countries than the US don’t focus on consumer-level enforcement.
Q: In my country people don’t know it’s illegal.
A: In our research, there’s usually no ambiguity. The lower price is the figure.

Q: Correlations?
A: There are loose correlations between GDP and piracy, but they vary according to media type. The content business model is to keep prices high and just wait it out for incomes to go up. Of course, the price of tech is dropping faster than income is growing.

Piracy is de-formalizing, he says. It’s no longer the small storefront. It’s the street vendor and others less vulnerable to raids. Enforcement against retail optical disk sales has worked. But that just pushed it out into the street.

Q: Do the charts include works that are distributed as unlicensed as intended?
A: It’s a black box.

Q: Do people have a reason to buy legal works for anything except fear of enforcement?
A: There’s no fear of enforcement. People buy legal works only for other reasons. In several of the countries, there are home-grown enforcement campaigns that come from domestic artists.

Q: What will be the take-away of the report?
A: It won’t be liked by industry lobbyists because it departs from the theft narrative that has defined the debate. It’s written from the perspective of the developing economies, where the reasons and conditions for piracy are just not part of the piracy of debate. You never hear about problems of pricing, for example. Our goal is to encourage developing cvountries to ssert more control over their IP policies and enforcement in order to enrich their own culture.
Q: Is there anything a developing country can do about pricing?
A: Depends on the sector. E.g., the biz sw strategy is to allow rampant priacy to ensure universal adoption, and then they begin to enforce against the most vulnerable institutions: municipal gov’ts, etc. What’s the source of open source platforms here? Most govts have no demonstrated any consistent open source adoption strategy. A lot of half-baked strategies, but few fully implemented ones. But that seems to be an adequate outcome. They want a ubiquitous platform of supported sw, which they get with pirated copies of Windows and MS Office. The OS advocates are often being gamed by MSFT’s high-level strategy. “This is an optimal strategy for the software companies. Microsoft wouldn’t have it any other way.” The enforcement rhetoric doesn’t match the sw companies’ strategies. MSFT could enforce Windows 7 piracy in China, but if they did, Linux would be the standard overnight. They’re still growing 30%. If you’re an open sw advocate, piracy is a real problem [because it lets countries use Microsoft for free]. The President of Romania in 2007 at a press conf with Bill Gates in 2007 said that piracy is part of their relationship with MSFT. [It's a national freemimum policy - dw]

By the way, Joe says, they’ve found no connections between piracy and drug trafficking, prostitution, organized crime, or terrorism. There are little overlaps but nothing systematic. This is despite industry claims that piracy funds organized crime and terrorism.

Joe points to the famous Jack Valenti quote that the VCR is to the US film industry what the Boston strangler is to a woman at home alone. [God bless Valenti! We miss you, Jack! - dw] On the other hand, Robert Bauer of the MPA has said (Joe says) that we should treat piracy as a signal of unmet demand and that the task is then to “find a way to meet that demand.”

Q: To what are things like Blu Ray an attempt to stay a step ahead of pirates?
A: It recreates scare production, and thus the conditions for smuggling-based pirate economies. There are always opportunities for that to re-emerge. Blu Ray at the moment has no impact on the markets we looked at.

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…The Republicans are better at questioning the President than you are.

I learned more about both sides of the issues than I have by listening to official press conferences. Getting neutrality out of the way seems to help when the issues are by nature contentious. Having the media mediate puts into the middle a force that (a) fears that taking up the opposition’s side too strongly will look like partisanship, and (b) is looking for “news,” i.e., headlines. It turns out that getting to hear the back-and-forth of the groups that have skin in the game can be better than inviting in a skinless third party.

Of course, it helps that not only is our President articulate and informed, he tries to engage substantively and accords his opponents appropriate dignity. And it’s to the Republican’s credit that they invited him in, gave the session enough time, and treated him civilly.

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The Simpsons episode tonight — “Million Dollar Maybe — uses the same basic plot device as my young adult, self-published novel My $100 Million Secret: Homer wins the lottery but can’t tell Marge because he bought the ticket when he should have been at an event with her. In mine, Jake wins the lottery but can’t tell his parents because they’re morally opposed to it. In the Simpsons, hilarious events ensue. In mine, a young lad tries to do right and non-hilarious events ensue.

Speaking of ensuing, someone call a lawyer!

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Clay Shirky’s masterful talk at the Web 2.0 Expo in NYC last September — “It’s not information overload. It’s filter failure” — makes crucial points and makes them beautifully. [Clay explains in greater detail in this two part CJR interview: 1 2]

So I’ve been writing about information overload in the context of our traditional strategy for knowing. Clay traces information overload to the 15th century, but others have taken it back earlier than that, and there’s even a quotation from Seneca (4 BCE) that can be pressed into service: “What is the point of having countless books and libraries whose titles the owner could scarcely read through in his whole lifetime? That mass of books burdens the student without instructing…” I’m sure Clay would agree that if we take “information overload” as meaning the sense that there’s too much for any one individual to know, we can push the date back even further.

The little research I’ve done on the origins of the phrase “information overload” supports Clay’s closing point: Info overload isn’t a problem so much as the water we fishes swim in. When the term was popularized by Alvin Toffler in 1970’s Future Shock, Toffler talked about it as a psychological syndrome that could lead to madness (on a par with sensory overload, which is where the term came from). By the time we hit the late 1980s and early 1990s, people aren’t writing about info overload as a psychological syndrome, but as a cultural fact that we have to deal with. The question became not how we can avoid over-stimulating our informational organs but how we can manage to find the right information in the torrent. So, I think Clay is absolutely spot on.

I do want to push on one of the edges of Clay’s idea, though. Knowledge traditionally has responded to the fact that what-is-to-be-known outstrips our puny brains with the strategy of reducing the size of what has to be known. We divide the world into manageable topics, or we skim the surface. We build canons of what needs to be known. We keep the circle of knowledge quite small, at least relative to all the pretenders to knowledge. All of this of course reflects the limitations of the paper medium we traditionally used for the preservation and communication of knowledge.

The hypothesis of “Too Big to Know” is that in the face of the new technology and the exponentially exponential amount of information if makes available to us, knowledge is adopting a new strategy. Rather than merely filtering — “merely” because we will of course continue to filter — we are also including as much as possible. The new sort of filtering that we do is not always and not merely reductive.

A traditional filter in its strongest sense removes materials: It filters out the penny dreadful novels so that they don’t make it onto the shelves of your local library, or it filters out the crazy letters written in crayon so they don’t make it into your local newspaper. Filtering now does not remove materials. Everything is still a few clicks away. The new filtering reduces the number of clicks for some pages, while leaving everything else the same number of clicks away. Granted, that is an overly-optimistic way of putting it: Being the millionth result listed by a Google search makes it many millions of times harder to find that page than the ones that make it onto Google’s front page. Nevertheless, it’s still much much easier to access that millionth-listed page than it is to access a book that didn’t make it through the publishing system’s editorial filters.

But there’s another crucial sense in which the new filtering technology is not purely reductive. Filters now are often simultaneously additive. For example, blogs act as filters, recommending other pages. But blogs don’t merely sift through the Web and present you with what they find, the way someone curating a collection of books puts the books on a shelf. Blogs contextualize the places they point to, sometimes at great length. That contextualization is a type of filter that adds a great deal of rich information. Further, in many instances, we can see why the filter was applied the way it was. For blogs and other human-written pieces, this is often explained in the contextualization. At Wikipedia, it takes place in the “About” pages where people explain why they have removed some information and added others. And the point of the Top 100 lists and Top Ten Lists that are so popular these days is to generate reams and reams of online controversy.

Thus, many of our new filters reflect the basic change in our knowledge strategy. We are moving from managing the perpetual overload Clay talks about by reducing the amount we have to deal with, to reducing it in ways that simultaneously add to the overload. Merely filtering is not enough, and filtering is no longer a merely reductive activity. The filters themselves are information that are then discussed, shared, and argued about. When we swim through information overload, we’re not swimming in little buckets that result from filters; we are swimming in a sea made bigger by the loquacious filters that are guiding us.

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I’m in a mixed up state. I’ve continued to re-organize the two chapters I’d written. They are now 2.5 chapters. And I’ve done a little new writing in that third chapter, since I’ve decided that if I’m going to talk about the history of facts (a big subsection that I think is on an interesting topic, but probably doesn’t fit into the book), I should also talk about the differences between facts and information.

So, I’ve cut and pasted, added new material, worked on transitions, and created an outline of the whole mess, but I’m too close to it and can’t tell if it works at all. I have to find a full day when I can sit down and read it all through. Until then, I feel like I’m cooking in the dark.

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The Sunlight Foundation has posted seven steps the government should take to help make campaign finance more transparent now that the Supreme Court has handed political discourse in the paid media to the highest bidders.

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Here is a letter Lewis Hyde sent to Judge Denny Chin who is considering the proposed Google Books settlement. I’ve also appended a supporting letter written by Eric Saltzman. The issue is that the newly-proposed trustee overseeing the handling of “orphaned works” (i.e., works that are still in copyright but whose copyright holders cannot be found) still does not have the power to adequately represent the interests of the rights holders, especially when it comes to allowing companies that are not Google to license the works. Granting Google a monopoly on these works seems like too much of a reward for Google’s scanning of them (which I’ve costs about $30/book), and does not seem to serve the interests of the rights holder or — more important, from my point of view — the overall social good of increasing access to these works. (Note: I am not a lawyer.)

So, here are the letters, minus some addresses, etc.:

 

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27 January 2010 

Dear Judge Chin:   

I write to amend the letter of objection that I wrote last August in regard to The Authors Guild, Inc., et al. v. Google Inc. (Case No. 1:05-cv-08136-DC).  My August letter is on file with your office as Document 480.   

I shall here limit my remarks to provisions of the amended settlement that are changed from the original settlement, specifically to the role of the newly proposed trustee for orphan works.   

I object to the fact that, despite the amended settlement’s creation of an Unclaimed Works Fiduciary (UWF), the monopoly powers that Google and the Books Rights Registry will acquire, should the Court approve the orphan works elements of the settlement, still stand.  The settling parties have limited the role of the UWF such that he may discharge some duties of the registry in some circumstances, but little else.  He cannot act fully on behalf of the rightsholders of unclaimed books; he cannot, for example, license their work to third parties.   

To put this another way, it is still the case that an approved settlement will in essence grant the settling parties unique compulsory licenses for the exploitation of orphan works.  But why make such licenses unique?  If the Court and the settling parties believe that they can authorize compulsory licenses of any sort, why not go the extra step and grant such licenses broadly so that competing providers can enter this market?   

To address the problem of monopoly in the market for digital books the UWF should be empowered to act as a true trustee.  As such, he should make every effort to locate lost owners, communicate to them their rights under the approved settlement, and pay them their due.  Absent their instructions to the contrary, he should deliver the works of lost owners to the public through the efficiencies of a fully competitive market.   

As Chief Justice Rehnquist has written in regard to the larger purposes of our copyright laws:  “We have often recognized the monopoly privileges that Congress has authorized … are limited in nature and must ultimately serve the public good…” (Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)).  In regard to both content owners and the public, then, the fiduciary needs to operate in an open economy of knowledge and, for that, he will need the freedom to license work to other actors.   

(Note:  I have asked my attorney, Eric Saltzman, to separately address the question of the UWF’s authority to license orphaned works to others; please see the attached addendum to this letter.)   

Yours sincerely, 

Lewis Hyde

Richard L. Thomas Professor of English

Kenyon College 

Addendum 

Eric F. Salzman

Re: The Authors Guild, Inc., et al. v. Google Inc. (Case No. 1:05-cv-08136-DC). 

Dear Judge Chin: 

My client, Lewis Hyde, tells the Court in his letter of January 27th that the new proposed settlement cannot be fair to the owners of the copyrights in the orphan works and to the public unless it allows the Unclaimed Works Fiduciary to make licenses to other providers to allow competition with the monopoly plan that Google and the Plaintiffs now propose to the Court.   

I would like to offer the Court additional support for Professor Hyde’s objection and suggestion.   

If the named plaintiffs or others who “opt in” to the settlement wish to sign on to it with their own copyrights (and if it survives any antitrust process), then that shall be their prerogative.  However, the combination in this class action lawsuit of inadequate representation and significant actual conflicts among the so-called class should make the Court skeptical of granting a monopolistic license of the absent members’ copyrights.   

If the Court does decide to approve a settlement of the case, it should not approve one where Plaintiff’s counsel have consented to deliver the licenses for the orphan works to just one licensee. 

It would be a complete fiction to say that Plaintiffs’ attorneys have adequately represented the orphan works authors and their successors in interest in this case.  The original settlement proposal clearly demonstrated counsel’s willingness and ability to compromise or, at least, to ignore the orphan works owners’ interests in favor of the named plaintiffs who engaged them and whose assent they needed to cut the deal.  

The problem of plaintiff counsel shaping a settlement attractive to the clients before them at the expense of absent class members is a well-discussed problem in class action jurisprudence.  This Court may take notice of an incentive in that direction, the more than fifty million dollars of fees that Google has agreed to pay to Plaintiffs’ counsel if the settlement goes through.   

Allow me to point out two methods whereby the proposed settlements seriously shortchanged the orphan works owners to enrich other class members at their expense.  

The proposed settlement provides that “Google will make a Cash Payment of at least $60 per Principal Work, $15 per Entire Insert and $5 per Partial Insert for which at least one Rightsholder has registered a valid claim by the opt-out deadline” (Emphasis supplied). According to the settlement, total payments will amount to $45 million.  

By definition, no orphan work Rightsholders could meet this registration condition.  Thus was the settlement engineered so that the rightsholders of orphan works and their successors-in-interest would not and could not get any share of the up-front payments total.  

Evidently, in dividing up the scores of millions of dollars that defendant Google was ultimately willing to pay up-front (i.e., unrelated to yet unproven forthcoming revenues) to settle the lawsuit, counsel felt no obligation to share any of it with the orphan works owners, even if the rightsholder should later appear and wish to register and claim that payment.  This very large slice of the pie would go only to the known rightsholders, their de facto clients. 

This economic discrimination against the orphan works rightsholders went beyond just up-front payments. It also took unclaimed (after five years) revenues from exploitation of the orphan works and assigned them to the known rightsholders of other books, thus promising still further enrichment of the client sub-class with actual control over the settlement.   

That particular feature drew such unpleasant attention to the bias in representation in favor of the known rightsholders (and disfavoring the orphan works rightsholders) that it was written out of the settlement proposal now before the Court.  Nevertheless, the Plaintiffs’ counsel who now urge the court to approve this revised settlement agreement are the same counsel who, in the first settlement go-around, assured the Court then (as they do now) that they had adequately represented the entire class, including the orphan works rightsholders. 

Commonality and adequacy of representation are two touchstones for class certification.  “The adequacy inquiry under Rule 23 (a) (4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods. v. Windsor, 521 U.S. 591 at 625 (1997).  

In Amchem, the Supreme Court upheld the Third Circuit Court’s decertification of the class because it found that “…the settling parties achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. The Third Circuit found no assurance here that the named parties operated under a proper understanding of their representational responsibilities. That assessment is on the mark.” Id at 595. 

As demonstrated above, much less than promising the “structural assurance of fair and adequate representation for the diverse groups and individuals affected”, the settlements that were and are proposed to this Court suggest that advantaging the named class members at the expense of the unrepresented orphan works rightsholders was a goal successfully achieved during the settlement negotiation. 

Accordingly, if the Court will entertain a settlement, it should itself take on the burden of making sure that the orphan works rightsholders interests are well protected.  At this point, the best way to do so is to free the orphan works from the monopoly straitjacket that the proposed settlement forces on them.   

Let the parties live with the deal they made for the parties who were, in fact, adequately and aggressively represented. For the inadequately represented sub-class, the orphan works rightsholders, the Court should empower the UWF (or similar fiduciary) to license their works into the open market. With this authority going forward, the UWF will, as well, be able to adjust licensing of digital rights in these works to the market conditions in an area that is still very new and sure to develop in ways that are, today, impossible to predict.   

Professor Hyde’s objection addresses the two enormous flaws in the proposed settlement:  1. the actual conflicts within the class together with the failure of adequate representation of the orphan works rightsholders, and 2.  the anti-competitive effect of the full copyright term license it would grant to Google only.  The first undermines both the process by which the settlement was achieved and, correspondingly, the public confidence in the courts.  The second hurts both the orphan works rightsholders and the strong public interest in access to the knowledge and creativity these books offer.   

Short of a initiating a new attempt at settlement — with new counsel for the orphan works rightsholders — the changes Professor Hyde proposes would achieve a result that would be fair for all the parties and for the public.   

Very truly yours, 

Eric F. Saltzman, Attorney 

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The iPad definitely ups the Kindle’s ante. Unfortunately, it ups the Kindle ante by making an e-book more like a television set.

Will it do well? I dunno. Probably. But is it the future of reading? Nope. It’s the high-def, full-color, animated version of the past of reading.

The future of reading is social. The future of reading blurs reading and writing. The future of reading is the networking of readers, writers, content, comments, and metadata, all in one continuous-on mash.

 

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Tim Bray writes:

Compared to my laptop, the iPad lacks a keyboard, software development tools, writers’ tools, photographers’ tools, a Web server, a camera, a useful row of connectors for different sorts of wires, and the ability to run whatever software I choose. Compared to my Android phone, it lacks a phone, a camera, pocketability, and the ability to run whatever software I choose. Compared to the iPad, my phone lacks book-reading capability, performance, and screen real-estate. Compared to the iPad, my computer lacks a touch interface and suffers from excessive weight and bulk.

It’s probably a pretty sweet tool for consuming media, even given the unfortunate 4:3 aspect ratio. And consuming media is obviously a big deal for a whole lot of people.

For creative people, this device is nothing.

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I’ve been working diligently on Chapter Two, titled “Knowledge as Network.” Today, I threw it out and threw out Chapter 1 while I was at it. I’m radically restructing both.

I was 7,500 words into Chapter 2, so this counts as both a possible advance and a setback.

The Chapter 2 I had almost completed began with an anecdote about expertise, then talked about the evolutionary origins of knowledge as a way to know more than can fit into one human brain. Then, onto the development of systematic methods of knowing, starting with Abu Ali al-Hasan ibn al-Haytham. Then on to repeatability as a part of that method, and why repeatability really aims at our not having to repeat experiments; it’s too expensive. Then there was an acknowledgment of the change in our thinking brought about by Thomas Kuhn and then by what’s loosely called post modernism. (Very brief on the latter! It’d be longer if I understood it better.) The key point: Our system of knowledge is about putting in stopping points for inquiry, in part by providing a system that puts in stopping points for our investigation of credentials. The aim of the system is to get you an answer quickly so you can stop searching. The system works. One side effect: it creates experts.

The current draft of Chapter 2 (that is, the draft I’m replacing) then gives a brief history of experts by looking at the rise of think tanks, which correlates with Taylorism and the US progressive movement. I spend a couple of paragraphs on RAND since it gave us our modern picture of The Expert. This then leads to a section on the new networked expertise. That section begins by wondering why Isaiah Berlin’s distinction between hedgehogs and foxes has become so oft-referenced recently. It’s probably because hedgehogism hasn’t worked out so well for us, and because the Net looks like a fox’s dream. But my real point is that both of those approaches use the old strategy of knowledge: faced with a world too big to know, we limit the task either by limiting the field we cover (hedgehogs) or how deep we dig (foxes). At the level of the network, we now have a new type of expertise that transcends the hedgehog-fox distinction. (What’s happening is really quite Hegelian, although I don’t say that in the chapter.)

Then I look briefly at the Challenger Commission as a positive example of how expertise used to work, and contrast that with MITRE’s approach of giving clients access to a network of connected experts, some of whom may disagree. Finally, I ask the reader to hold a physical book in her hands (which she may well be doing while she’s reading this, of course) and consider the basic physical facts about it. I go through these one by one and show the correlation with the old idea of expertise. Change the medium from a book to a network and the properties of expertise should also change. This leads me to the final section of Chapter 2 in which I go through a typology of 6 forms of networked expertise, prefaced by a short discussion attempting to differentiate what I’m talking about from the Wisdom of the Crowd.

That’s what the chapter was. It had problems. It gives the reader another half chapter of history before getting anywhere close to the point. I can’t afford to postpone for yet another 4,000 words why the reader should care about this topic.

Yesterday, it was my turn to present to the little book writers group at the Berkman Center. I didn’t give them the chapters to read since I knew I’d be changing them drastically. After I described the outline of the two chapters, one of the participants — am I allowed to say that it was Ethan Zuckerman? — had the same reaction as my literary agent, who had read the first chapter: Interesting stuff to have gotten out of your system, but it needs to be moved further back. In the course of the conversation, it became clear to me that I need to hit the reader in the face early on with one of the most basic assertions of the book: The old strategy of knowledge has been to manage the overload by limiting what we know, but we are now developing a new strategy in response to the fact that the Net is hugely inclusive.

So, this morning I sat in front of a wide-screen monitor divided into three parts: Chapter 1, Chapter 2, Blank Chapter. I copied and pasted and quickly patched together a new Chapter 1. At the moment, it begins with a brief history of the data-information-knowledge-wisdom pyramid and uses that as an example of knowledge’s old strategy of managing overload by reducing it. This lets me get straight to the big, broad point. It proceeds from there, although I’m not sure I have it arranged right. (Maybe I should add back in all the stuff about information overload? Hard to know at the moment.)

I’ve only begun reconstructing Chapter 2. At the moment, I think it will be a history of knowledge with a focus on our culture’s idea that it’s like a building that needs a firm foundation. But that gets at an idea I might want to end the book with, so I’m really not sure at the moment what Chapter 2 should be.

But now it’s time for lunch. Nuking chapters sure builds an appetite in an author!

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Julie Cohen is giving a Berkman lunch on “configuring the networked self.” She’s working on a book that “explores the effects of expanding copyright, pervasive surveillance, and the increasingly opaque design of network architectures in the emerging networked information society.” She’s going to talk about a chapter that “argues that “access to knowledge” is a necessary but insufficient condition for human flourishing, and adds two additional conditions.” (Quotes are from the Berkman site.) [NOTE: Ethan Zuckerman's far superior livebloggage is here.]

NOTE: Live-blogging. Getting things wrong. Missing points. Omitting key information. Introducing artificial choppiness. Over-emphasizing small matters. Paraphrasing badly. Not running a spellpchecker. Mangling other people’s ideas and words. You are warned, people.

The book is motivated by two observations of the discourse around the Net, law, and policy in the U.S.

1. We make grandiose announcements about designing infrastructures that enable free speech and free markets, but at the end of the day, many of the results are antithetical to the interests of the individuals in that space by limiting what they can do with the materials they encounter.

2. There’s a disconnect between the copyright debate and the privacy debate. The free culture debate is about openness, but that can make it hard to reconcile privacy claims. We discuss these issues within a political framework with assumptions about autonomous choice made by disembodied individuals…a worldview that doesn’t have much to do with reality, she says. It would be better to focus on the information flows among embodied, real people who experience the network as mediated by devices and interfaces. The liberal theory framework doesn’t give us good tools. E.g., it treats individuals as separate from culture.

Julie says lots of people are asking these questions. They just happen not to be in legal studies. One purpose of her book is to unpack post modern literature to see how situated, embodied users of networks experience technology, and to see how that affects information law and policy. Her normative framework is informed by Martha Nussbaum’s ideas about human flourishing: How can information law and policy help human flourishing by providing information to information and knowledge? Intellectual property laws should take this into account, she says. But, she says, this has been situated within the liberal tradition, which leads to indeterminate results. You lend it content by looking at the post modern literature that tells us important things about the relationship between self and culture, self and community, etc. By knowing how those relationships work, you can give content to human flourishing, which informs which laws and policies we need.

[I'm having trouble hearing her. She's given two "political reference points," but I couldn't hear either. :(]

[I think one of them is everyday practice.] Everyday practice is not linear, often not animated by overarching strategies.

The third political reference point is play. Play is an important concept, but the discussion of intentional play needs to be expanded to include “the play of circumstances.” Life puts random stuff in your way. That type of play is often the actual source of creativity. We should be seeking to foster play in our information policy; it is a structural condition of human flourishing.

Access to knowledge isn’t enough to supply a base for human flourishing because it doesn’t get you everything you need, e.g., right to re-use works. We also need operational transparency: We need to know how these digital architectures work. We need to know how the collected data will be used. And we also need semantic discontinuity: Formal incompleteness in legal and technical infrastructures. E.g., wrt copyright to reuse works you shouldn’t have to invoke a legal defense such as fair use; there should be space left over for play. E.g., in privacy, rigid arbitrary rules against transacting and aggregating personal data so that there is space left over for people to play with identity. E.g., in architecture, question the norm that seamless interoperability makes life better, because it means that data about you moves around without your having the ability to stop it. E.g., interoperability among social networks changes the nature of social networks. We need some discontinuity for flourishing.

Q: People need the freedom to have multiple personas. We need more open territory.
A: Yes. The common pushback is that if you restrict the flow of info in any way, we’ll slide down the slippery slope of censorship. But that’s not true and it gets in the way of the conversation we need to have.

Q: [charlie nesson] How do you create this space of playfulness when it comes to copyright?
A: In part, look at the copyright law of 1909. It’s reviled by copyright holders, but there’s lots of good in it. It set up categories that determined if you could get the rights, and the rights were much more narrowly defined. We should define rights to reproduction and adaptation that gives certain significant rights to copyright holders, but that quite clearly and unambiguously reserves lots to users, with reference to the possible market effect that is used by courts to defend the owners’ rights.
Q: [charlie] But you run up against the pocketbooks of the copyright holders…
A: Yes, there’s a limit to what a scholar can do. Getting there is no mean feat, but it begins with a discourse about the value of play and that everyone benefits from it, not just crazy youtube posters, even the content creators.

JPalfrey asks CNesson what he thinks. Charlie says that having to assert fair use, to fend off lawsuits, is wrong. Fair uyse ought to be the presumption.

Q: [csandvig] Fascinating. The literature that lawyers denigrate as pomo makes me think of a book by an anthropologist and sociologist called “The Internet: An Ethnographic Approach.” It’s about embodied, local, enculturated understanding of the Net. Their book was about Trinidad, arguing that if you’re in Trinidad, the Net is one thing, and if you’re not, it’s another thing. And, they say, we need many of these cultural understandings. But it hasn’t happened. Can you say more about the lit you referred to?
A: Within mainstream US legal and policy scholarship, there’s no recognition of this. They’re focused on overcoming the digital divide. That’s fine, but it would be better not to have a broadband policy that thinks it’s the same in all cultures. [Note: I'm paraphrasing, as I am throughout this post. Just a reminder.]

A: [I missed salil's question; sorry] We could build a system of randomized incompatibilities, but there’s value in having them emerge otherwise than by design, and there’s value to not fixing some of the ones that exist in the world. The challenge is how to design gaps.
Q: The gaps you have in mind are not ones that can be designed the way a computer scientist might…
A: Yes. Open source forks, but that’s at war with the idea that everything should be able to speak to everything else. It’d

Q: [me] I used to be a technodeterminist; I recognize the profound importance of cultural understandings/experience. So, the Internet is different in Trinidad than in Beijing or Cambridge. Nevertheless, I find myself thinking that some experiences of the Net are important and cross cultural, e.g., that Ideas are linked, there’s lots to see, people disagree, people like me can publish, etc.
A: You can say general things about the Net if you go to a high enough level of abstraction. You’re only a technodeterminist if you think there’s only way to get there, only one set of rules that get you there. Is that what you mean?
Q: Not quite. I’m asking if there’s a residue of important characteristics of the experience of the Net that cuts across all cultures. “Ideas are linked” or “I can contribute” may be abstractions, but they’re also important and can be culturally transformative, so the lessons we learn from the Net aren’t unactionably general.
A: Liberalism creeps back in. It’s acrappy descriptional tool, but a good aspirational one. The free spread of a corpus of existing knowledge…imagine a universal digital library with open access. That would be a universal good. I’m not saying I have a neutral prescription upon which any vision of human flourishing would work. I’m looking for critical subjectivity.

A: Network space changes based on what networks can do. 200 yrs ago, you wouldn’t have said PAris is closer to NY than Williamsburg VA, but today you might because lots of people go NY – Paris.

Q: [doc] You use geographic metaphors. Much of the understanding of the Net is based on plumbing metaphors.
A: The privacy issues make it clear it’s a geography, not a plumbing system. [Except for leaks :) ]

[Missed a couple of questions]

A: Any good educator will have opinions about how certain things are best reserved for closed environments, e.g., in-class discussions, what sorts of drafts to share with which other people, etc. There’s a value to questioning the assumption that everything ought to be open and shared.

Q: [wseltzer] Why is it so clear that it the Net isn’t plumbing? We make bulges in the pipe as spaces where we can be more private…
A: I suppose it depends on your POV. If you run a data aggregation biz, it will look like that. But if you ask someone who owns such a biz how s/he feels about privacy in her/his own life, that person will have opinions at odds with his/her professional existence.

Q: [jpalfrey] You’re saying that much of what we take as apple pie is in conflict, but that if we had the right toolset, we could make progress…
A: There isn’t a single unifying framework that can make it all make sense. You need the discontinuities to manage that. Dispute arise, but we have a way to muddle along. One of my favorite books: How We Became Post-Human. She writes about the Macy conferences out of which came out of cybernetics, including the idea that info is info no matter how it’s embodied. I think that’s wrong. We’re analog in important ways.

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WeMedia is letting us all vote for our favorite “game changers.” Congrats to the two Berkman projects for making the list: Global Voices and Herdict.

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I’m very happy to say that I’ve been granted a Franklin Fellowship to work with the US State Department for the next year. I’ll be working with the eDiplomacy group that is working on providing Web 2.0 platforms for internal use, with the semi-secret aim of nudging State from a need-to-know to a need-to-share culture. (This is not exactly how eDiplomacy explains its charter, but it’s how I understand it.)

Franklin Fellowships were established by the State Department in 2006 in order to bring in people from the private and non-profit sectors. I’m working as a volunteer, with my travel expenses covered in part by a grant from Craig Newmark, founder of CraigsList. (Thank you, Craig!) Because I’ll be on-site in DC only a few times a month, I’ll be able to continue as a senior researcher at the Berkman Center. (I’ve also begun doing some work for Harvard Law Library’s digital lab.)

I’ve already spent time with the group. They’re, well, wonderful. They’ve already delivered tools for knowledge sharing (e.g., Diplopedia) and for connecting expertise across every boundary (e.g., The Sounding Board), and they’ve got some very interesting projects in the works. These are dedicated State Dept. employees, some with considerable experience under their belts, who are on fire about the possibilities for making State smarter, more innovative and creative, more responsive, more engaged, and more human, but always within the proper security constraints. Fascinating fascinating.

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Want to see one way to use the Web to teach? Berkman’s Jonathan Zittrain and Stanford Law’s Elizabeth Stark are teaching a course called Difficult Problems in Cyberlaw. It looks like they have students creating wiki pages for the various topics being discussed. The one on “The Future of Wikipedia” is a terrific resource for exploring the issues Wikipedia is facing.

Among the many things I like about this approach: It implicitly makes the process of learning — which we have traditionally taken as an inward process — a social, outbound process. By learning this way. we are not only enriching ourselves, but enriching our world.

My only criticism: I wish the pages had prominent pointers to a main page that explains that the pages are part of a course.

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Congratulations to StopBadWare, a non-profit that today has spun out of the Berkman Center. StopBadware maintains a database of malware sites from lists contributed by Google and Sunbelt Software, analyzes the data, provides some end-user services, advocates for sensible policies to minimize badware, and resolves disputes about particular listed sites. It is supported primarily by Google, PayPal, and Mozilla.

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On an etymological note, I believe there’s good reason to believe that the phrase “freedom to connect” that Secretary of State Hillary Clinton used in her speech on Internet Freedom ultimately came from David Isenberg. It might, of course, simply be an independent coinage, but David has run a conference by that name for several years, and lots of people now connected to the Obama administration either have attended, or know David or people who have attended. For example, in 2008, Alec Ross was on a panel. Alec is the State Department’s Senior Advisor for Innovation and reports to Sect’y Clinton. I would imagine that Alec was involved in Sect’y Clinton’s Internet Freedom event and the drafting of the speech.

With my usual prescience, I gave a talk at one of the Freedom to Connect conferences saying that “right to connect” would be a better phrase because rights imply corresponding duties. That is, if we have the freedom to connect, then the government can’t stop us. But, if we have the right to connect, then the government has a duty to help us connect, by (for example) making sure we all have access to the Internet. As it turns out, David’s sense of the workable phrase — the one that would catch on — was miles ahead of mine.

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Meanwhile, in support of my resolution to be an even bigger a-hole, here’s a link to an interview immediately after Hillary Clinton’s speech, in which I manage to confuse FDR’s Four Freedom’s with the Universal Declaration of Human Rights and possibly with the Four Teletubbies. (Also, for the record, the video labels me as a Harvard Professor. I’m not. I’m a “senior researcher” at the Berkman Center; being a professor is a much bigger deal. And while I’m speaking for the record, I am not a philosopher either. That, too, is a far bigger deal than the sort of writing I do.)

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I interviewed these two Googly Chrisses at Secretary Clinton’s address. The video is a little over 9 mins, but it’s IMPORTANT TO NOTE that there is a crucial disclaimer 53 seconds in…

Most of the discussion is about the problem of local belief systems and the desire to enforce some global values.

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The Guardian has gone meta-meta and produced a single portal for exploring the data the world’s governments are dumping into the public sphere. (Thans, Doc!)

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Our son Nathan demonstrates the proper way to eat a carrot:

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The Berkman Buzz this week:

* Peter Suber takes stock of open access in 2009:
http://www.earlham.edu/%7Epeters/fos/newsletter/01-02-10.htm#2009

* John Palfrey reports from a reader privacy event:
http://blogs.law.harvard.edu/palfrey/2010/01/22/reader-privacy-event-at-unc-chapel-hill/

* danah boyd argues that privacy is still very much alive:
http://www.zephoria.org/thoughts/archives/2010/01/16/facebooks_move.html

* Fernando Bermejo wonders aloud about flash cookies:
http://blogs.law.harvard.edu/mossing/2010/01/18/tracking-the-trackers/

* Future of the Internet puts out a HIT about worker satisfaction:
http://futureoftheinternet.org/life-in-a-clickshop

* Difficult Problems in Cyberlaw looks for a fight:
http://blogs.law.harvard.edu/difficultprobs/2010/01/14/disputefinder-crowdsourcing-controversy/

* CMLP tries not to cut itself on the First Amendment:
http://www.citmedialaw.org/blog/2010/double-edged-sword-online-free-speech

* Doc Searls connects the dots of the Content-o-net:
http://blogs.law.harvard.edu/doc/2010/01/18/how-the-internet-becomes-the-content-o-net/

* OpenNet Initiative ballparks the number of Internet users being filtered around the world:
http://opennet.net/blog/2010/01/more-half-a-billion-internet-users-are-being-filtered-worldwide

* Weekly Global Voices: “More websites banned in Myanmar. Global Voices banned too”
http://globalvoicesonline.org/2010/01/18/more-websites-banned-in-myanmar-global-voices-banned-too/

* David Weinberger reacts to Hillary Clinton’s Internet speech…
http://www.hyperorg.com/blogger/2010/01/21/hillary-clintons-internet-policy-speech/

* …and Ethan Zuckerman weighs in as well:
http://www.ethanzuckerman.com/blog/2010/01/21/reacting-to-clintons-to-connect-speech/

* Internet & Democracy reads that the Kremlin tells governors to blog:
http://blogs.law.harvard.edu/idblog/2010/01/22/kremlin-tells-governors-to-blog-or-pack-their-bags/

* A year ago in the Buzz: “Inauguration Day Online”
http://blogs.law.harvard.edu/digitalnatives/2009/01/22/inauguration-day-online/

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First, my overall reaction to Hillary Clinton’s speech: It’s thrilling that a Secretary of State would claim “freedom to connect” as a basic human right. That’s a very big stake in the ground. Likewise, it’s sort of amazing that the State Department is funding the development of tools to help users circumvent government restrictions on access. On the negative side, it’s distressing (but not surprising) that the Secretary of State should come out against anonymity so we can track down copyright infringers. Of course, in response to a question she said that we have to strike a balance so that the anonymity of dissenters is protected even as the anonymity of file sharers is betrayed. I just don’t know how you do that. [THE NEXT DAY: I fixed a couple of typos in that paragraph.]

What follows are the notes I took during the presentation itself. They are, as always, rough livebloggage. Here’s a transcript of her prepared remarks.

I’m at the Newseum where Hillary Clinton is about to give a speech about Internet freedom. The venue is filled: an auditorium that seats a few hundred. HRC enters. (Joe Lieberman is smiling in the front row, damn his eyes.)

Her topic: How freedom applies to the Net. She thanks Richard Lugar and Joe “The Weasel” Lieberman for sponsoring some act that promotes Internet freedom. [I don't know what she's referring to, but somehow I bet I don't like it.] She takes a moment to note the gravity of the situation in Haiti. Communications networks have played a crucial role in our relief efforts, she says. The State Dept. immediately set up the “text Haiti” program that has raised $25M.

The Internet is forming a new “nervous system,” she says. Information has never been more free, she says. The U.S. believes that open access to info enables citizens to hold their gov’ts accountability, increase innovation, etc. But the same tools are used to work against freedoms. The same networks that organize people for freedom also enable Al Qaeda to spew hatred, she says. The same tech can be used to suppress dissent. Chinese, Tunisia and Uzbekistan have stepped up their assault on Internet freedom, she says. We stand for a single Internet, open to all. ["Single Internet" is code for "Boo, China!" but should also be code for "Yay Net Neutrality!"] This is based on our belief in free speech. We need to synchronize our technological progress with our principles.

The users of the Net ought to be assured certain basic freedoms:

Freedom of expression. She hearkens back to the fall of the Berlin Wall. The Net is this generation’s icon. Instead of a wall, it stands for connection. Some countries [=China] have expunged search results and have imprisoned people for non-violent expressions of beliefs. This violates the Declaration of Human Rights. Viral videos and blog posts are the samizdat of our day. E.g., Iran.

Then she exempts terrorist beliefs. And, in the next sentence, exempts those transmitting “stolen intellectual property.” And, she says, we must not allow anonymity to protect them. [What the what??]

HRC says she likes freedom of worship and the Net ought not to be censored on those grounds.

The Net can be used to advanced struggling economies. The Net and mobile phones can do for economic growth what the Green Rev did for agriculture. “Information networks have become a great leveler.” We should use them to lift people out of poverty.

But: Bad people use the Net for bad purposes. Terrorists, sexual predators, totalitarian gov’ts, child porn, slave trade. We need our networks to be secure, especially from evil organizations. We need more tools to allow law enforcement agencies to cooperate across boundaries. “Countries or individuals that engage in cyberattacks” should face consequences. We need to protect the “cyber information commons.” [Cool phrase to hear a Sect'y of State utter]

We should all have a freedom to a connect: To connect to the Internet, Web sites, or one another. It is like the freedom to assemble.

We can use the Net to help ensure Net freedoms.

How to apply this in practice:

The U.S. is ready to spend what we need to in order to advance these freedoms.

We need 21st Century statecraft, as they say at the State Dept.

We’re including Net freedom in what we’re proposing to the UN Human Rights Council.

We are funding groups to make sure that Net tools get to people who need them to so they can be used in rights-challenged countries. We are committed to providing tools and training to people in countries where the Net is under political censorship. Announcement: Partnerships to provide tools to empower citizens. Also, an innovation contest. She talks about a State group that has been working on this, including in Mexico and Pakistan.

“Information freedom” is not just good policy, but it’s a universal value and good for business.

She calls on China to look into the violations that caused Google to threaten to withdraw. Countries that censor risk “walling themselves off” from progreess.

Will we live with one Internet, one body of knowledge, one community? Or will what you see depend on what your censors let you? Asymmetric access to info leads to global instability.

Consumers want to rely that their Internet providers are giving them open, uncensored access. Those who lose that confidence will lose customers. [Unless there are monopolies.] We need to be confident that what we do on the NEt won’t be used against us. [Hence we need anonymity.] We are reinvigorating the Internet Freedom Task Force. The private sector has a shared responsibility to safeguard Internet freedom.

HRC also likes the Global Network Initiative, a consortium that establishes mechanisms sfor transparency and accountability. The State Dept. is having a conference next month.

Q: But we need anonymity to enable free speech in repressive regimes.
A: We have to strike a balance.

Q: But business is in it for the money.
A: Open Net is in the long term interest of business.

A: If a gov’t disaagrees with what a blogger is saying, get into the discussion.

A: We are expanding our outreach to Muslim youth.

[Now there's a panel discussion, but I'm not going to live blog it.]

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Ethan Zuckerman has yet another fabulous post, this one about how false reports about a supposedly impending earthquake in Ghana swept through social media. Fascinating and informative. As always.

The Knight Foundation, which runs its own contest to grant awards for innovation in media, has published a roundup report and analysis of such competitions.

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Tarleton Gillespie of Cornell is giving a Berkman lunchtime talk on the politics of online media. He’s been interested in how we are shaping cultural discourse through the confluence of tech, policy, economics, etc. Today he wants to look at how social platforms are shaping social discourse.

NOTE: Live-blogging. Getting things wrong. Missing points. Omitting key information. Introducing artificial choppiness. Over-emphasizing small matters. Paraphrasing badly. Not running a spellpchecker. Mangling other people’s ideas and words. You are warned, people.

He begins with YouTube’s announcement in Dec. 2008 that they’re going to become more conservative in blocking offensive videos: removing some, moving some behind an age firewall, and algorithmically demoting some so they won’t appear on the most popular lists. This combines traditional tactics with newfangled technical management of where things appear. We don’t really have a language for how these sorts of innovations work.

He asks: How do we take the tradition of asking questions about how commercial providers shape the public discourse … with the basis that these providers, especially the most prominent ones, are playing a role in determining what ends up online, viewed and possible? How do we apply this to new media? Three differences in how online media work: 1. Emphasis on user-generated content. 2. Gatekeeping or comprehensiveness? E.g., Google wants comprehensiveness for Google Books. That changes why they would include or exclude. 3. They cater “to active niche communities, trying to produce a coherent site, consistent brand, and commodifiable audience.”

“How do these sites promise to be everything and not everything at the same time?” How have they cultivated the notion that they provide everything in a neutral manner? How do they intervene in what they provide? “What obligations are we willing to impose, to protect free speech and ensure a healthy public discourse?”

What about the promises they make that makes them appear neutral? How do they articulate their services and sell themselves to the various stakeholders, setting the terms for how they’re judged? Part of the answer: They use the term “platform.” “The role this term plays is indicative of the type of positioning a youtube, facebook or flickr would like to establish.” These terms are carefully chosen and are carefully massaged. Why has this term fit so comfortable in these sites’ characterizations and why have we accepted it? E.g., before being bought by Google, Youtube referred to itself as a service and a community. Afterward, it became a “platform.” The term draws on the computational meme: an infrastructure on which tools can be built. Marc Andreesen disagrees because you can’t build tools for it. [This is the original geeky meaning, but its meaning has shifted, IMO - dw] It also has a political meaning. And architectural. All these meanings help the term resonate. There are a series of connotations that are powerful in this tool: An open space, egalitarian, wide, limitless, facilitating something of value.

The term “platform” manages the conflicts among stakeholders for youtube. For users, it’s a platform from which to be heard. For advertisers, it’s a platform of opportunity. For media partners, it’s a distribution platform. For lawmakers, it’s a fragile, valuable platform that enables free speech. When they are talking about liability, they are merely a platform. Structurally, “platform” is not unlike “conduit.” [Hmm. I think that for advertisers, YT is a platform in that it's an open space where millions of users come together. - dw]

So, how do you begin to find a language for the technique and justifications online media make about what belongs on their site and what doesn’t. Facebook, youtube, and flickr adopt different strategies. Youtube maintains that it doesn’t look at content proactively but only when their users flag it. But they do look for spam and are obliged to look for child porn [actually, I think they are not required to proactively search out child porn — dw]. Youtube has a figure 8 model of community governance: Users flag content. Users can comment on the guidelines. Users can game the system, but Youtube can decide which flags to ignore. Users can complain about being flagged. So, while Youtube positions itself as non-interventionist, it actually isn’t. It says it’s defending the community according to the community’s norms, but those norms have been crafted by YT in accordance with its legal and economic interests.

YT’s algorithmic demotion of videos manages their front page. They don’t want it to look like a soft core porn site; those videos are there, but it’s not their image. Flickr does this carefully as well. Their front page tells you that this is a site for landscape photos, and birds, and arty shots. Amazon’s best seller list excludes “adult” literature. Not to mention (he says) Amazon’s removing from the Kindle a copy of 1984 that was posted in violation of copyright; what seems like ours isn’t really.

[I'm doing a terrible job capturing the questions. Basically, I just couldn't hear the first couple. Sorry!]

Q: [wendy] Platforms vs. intermediaries. “The lawyers tend to talk about intermediary liability or immunity, whereas economists talk more about platforms.”
A: Intermediaries such as ISPs have a different set of protections. YouTube wants the protections but doesn’t fit neatly into that definition. Viacom calls YTY a “distributor.”

Q: Couldn’t these platforms get out of the dilemma by providing curated and uncurated versions?
A: Flickr comes closer to that. It tries to have it all but not be visible about having it all. They have a “Porn is in the back” approach.

[me] We’re in a confusing time. We’ve invented new things that don’t fit the old vocabulary perfectly. What should we do about the lack of a vocab. Invent a new one? Be vigilant about understand how people use terms?
A: All vocabularies are strategic. We should unpack the terms and recognize that they’re doing work, and that the connotations matter. E.g., issues of liability depends on whether we see them as intermediaries or distributors. Is it about imposing a new vocab? Or maintaining vigilance? I’m torn about the impulses in those directions.

Q: We had a system that had user ratings. We a “text jockey” looking at msgs 24/7. We call them global ratings vs. contextual ratings. It’s gotten very very complex. E.g., cleavage photos have to have a head included.

Q: [jodi] How has the near real time feedback influenced accountability/exposure of algorithms and decisions? The Twitter/#amazonfail incident, for instance. Amazon was faced with a decision to respond or not, and then further faced with a decision of what to do about the allegation.
A: The Amazon FAIL revealed what was going on all along. Now the reaction can be faster, is more public.

[Missed some more questions because my hearing is getting worse.]

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I had not heard of Flash cookies until Fernando Bermejo’s Berkman talk last week. Now he’s inaugurated his new blog (well, it’s his second post) with a posting about a new study. Fernando writes:

the white paper concludes “that companies making inappropriate or irresponsible use of the Flash technology are very likely asking for trouble (and potentially putting the rest of the online industry at risk of additional government regulation)”. As for [end users], flash cookies are characterized as “super-cookies which are dramatically more resilient than cookies due to their implementation and a general lack of knowledge about their existence among consumer”.

To remove Flash cookies – which have some peacetime uses – go here.

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HuffingtonPost has a scene from Big Bang Theory with the laughtrack removed:

The stated point is that a show with the laughtrack removed is funnier, but in a different and unintended way. But, the experiment is more provocative than that. (Big Bang is filmed in front of a live audience.)

BTW, Big Bang is on our TiVo list. I sort of like it because it’s good within its genre, as opposed to, say, Two and a Half Men, which is bad within its genre, but also as opposed to, say, Frasier, which was superb within its genre, and as also opposed to, say, Seinfeld which was hilarious as a self-conscious awkward inhabitant of its genre. (Please note that these are what I find funny, not what I think you ought to find funny. Except for Two and a Half Men. Gotta draw a line somewhere :)

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I’ve been working slowly on Chapter 2, still waiting for it to take some recognizable shape. I had a little breakthrough two days ago when I realized I could stop writing an endless exposition of how knowledge has worked — a system of stopping points for inquiry based on a system of stopping points for credentialing — and could go straight to talking about experts. So, I started a new section and have been writing about why we have taken such a sudden interest in hedgehogs vs. foxes, even though most of us don’t care about Isaiah Berlin, Archilochus, or hedgehogs and foxes, for that matter.

I also had an idea for Chapter 1. That chapter just doesn’t open in a compelling way. But I gave an impromptu-ish 15 minute talk at Lawberry Camp (an open space day for law librarians) yesterday about the origins of the data-information-knowledge-wisdom hierarchy, and why it gets knowledge so wrong. Afterwards, I thought that that might make a good opening for the Chapter. So, I’ve made a note to that effect at the beginning of the current draft, and once I have Chapter 2 under better control, I’ll take a look at the opening of Chapter 1.

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Rebecca MacKinnon has a great post of wild-eyed common sense about Google, China, and the Net as a new global player. Summary: She’s glad to have Google on the side of an OPEN Internet, but she doesn’t want the world to be run by even a benevolent corporation. And, yes, she does note some of the ways Google has not been benevolent or OPEN.

Meanwhile, Ethan Zuckerman is speculating about why Google took its China stance when it did. The fourth possibility he lists is highly speculative and more than a little bit hopeful. But very cool.

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From Chris Csikszentmihaly, Director of the MIT Center for Future Civic Media:

CALL TO NEWS ORGANIZATIONS

In the response to the earthquake in Haiti, many organizations worked to create sites where people could find one another, or least information about their loved ones. This excellent idea has been undermined by its success: within 24 hours it became clear that there were too many places where people were putting information, and each site is a silo. The site Haitianquake.com began scraping – mechanically aggregating – the most popular such sites, like http://koneksyon.com and American Red Cross Family Links. As people within the IT community recognized the danger of too many unconnected sites, and Google became interested in helping, they turned their work over to Google which is now running an embeddable application at: http://haiticrisis.appspot.com/

We recognize that many newspapers have put precious resources into developing a people-finder system. We nonetheless urge them to make their data available to the Google project, and standardize on the Google widget. Doing so will greatly increase the number of successful reunions. Data from the google site is currently available as dumps in the standard PFIF format on this page , and an API is being developed, and licensed through Creative Commons. I am not affiliated with Google – indeed, this is a volunteer initiative by some of their engineers – but this is one case where their reach and capacity can help the most people.

Please feel free to contact me if you have any questions about the reasoning behind this request. Any questions about the widget or its functionality or features are best directed to Google.

Christopher P. Csikszentmihalyi.
Director, MIT Center for Future Civic Media

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Using a Javascript regex function written by Sam Hesler at StackOverflow (thanks!), I’ve posted a simple little page that lets you turn text that has URLs in it into text that has clickable, hyperlinked URLs. That is, you go from http://www.globalvoicesonline.org to
http://www.globalvoicesonline.org.

The page is: ConvertURLsToLinks.html. It’s quite bareboned, and I’m sure there are lots of sites that do a far better job with many more options. But, it worked well enough for the one job I wanted it for, so maybe it’ll work for you. At least it won’t destroy your original text (although keep the original just in case.)

The regex function I borrowed from Sam Hesler is:

function replaceURLWithHTMLLinks(text) {
var exp = /(b(https?|ftp|file)://[-A-Z0-9+&@#/%?=~_|!:,.;]*[-A-Z0-9+&@#/%=~_|])/ig;
return text.replace(exp,”$1“);
}

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Every week, the Berkman Center sends out an email rounding up some of the bloggage etc. emanating from the Center. Here’s this week’s (with my own mention removed). You can sign up for this weekly send here. (And I apologize if the formatting is screwed up; I’m not sure why there are double spaces where I put a single line break.)

 

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“Google announced today that it would cease (well, phase out) censoring the results in google.cn, the Chinese-language version of its famed search engine. It’s a pretty stunning move, both in its fact and in its execution. First, the announcement of “A new approach to China” may appear to have buried the lede. The lion’s share of the post is devoted to describing a series of coordinated attacks on the accounts of human rights activists, including those who use Google. It includes a link to the amazing story of GhostNet, discovered by fellow ONI researchers when the Dalai Lama gave them his oddly-acting laptop to examine.”

From Jonathan Zittrain’s blog post “Google takes on China” http://futureoftheinternet.org/google-cn

About Jonathan Zittrain:

http://cyber.law.harvard.edu/people/jzittrain

“Herdict is pleased to announce two additional language interfaces: Persian (herdict.org/Persian) and Russian (nardict.ru). Our hope is by adding additional languages, we’ll continue to expand the herd. And, since Herdict relies on you, the herd, to get the upto the moment information on internet filtering, the bigger the herd, the better the data. Have ideas on what other languages we should add? What about other new features?”

From the Herdict project blog post, “Herdict welcomes two new languages to the flock” http://blogs.law.harvard.edu/herdict/2010/01/13/herdict-welcomes-two-new-languages-to-the-flock/

About Herdict:

http://www.herdict.org/web/about

“Zuckerberg says that people are more comfortable sharing and being open than they used to be, and Facebook is just catching up with where society has already gone. Of course this is nonsensical reasoning, unworthy of someone who took a course in computational theory from me (yes, he did).”

From Harry Lewis blog post “Zuckerberg to the World: Privacy? Forget About It” http://www.bitsbook.com/2010/01/zuckerberg-to-the-world-privacy-forget-about-it/

About Harry Lewis:

http://cyber.law.harvard.edu/people/hlewis

“There are a couple of laws in California that the U.S. Supreme Court should consider before it announces tomorrow whether or not the Proposition 8 trial can be broadcast on YouTube: § 240 and § 422. These two laws don’t address same-sex marriage, discrimination, or even access to courts, as you may have expected. Instead, these sections of the California Penal Code make it a crime to either assault or threaten to use violence against another person.”

From Justin Silverman’s blog post for the CMLP, “Will This Revolution Be YouTubed?” http://www.citmedialaw.org/blog/2010/will-revolution-be-youtubed

About the Citizen Media Law Project:

http://www.citmedialaw.org/about/citizen-media-law-project

“The Internet is free and open infrastructure that provides almost unlimited support for free speech, free enterprise and free assembly. Nothing in human history, with the possible exception of movable type — has done more to encourage all those freedoms. We need to be very careful about how we regulate it, especially since it bears only superficial resemblances to the many well-regulated forms of infrastructure it alters or subsumes.”

From Doc Searls’ blog post “The Net: Free infrastructure for speech, enterprise and assembly” http://blogs.law.harvard.edu/doc/2010/01/13/the-net-free-infrastructure-for-speech-enterprise-and-assembly/

About Doc Searls:

http://cyber.law.harvard.edu/people/dsearls

“So, why do companies behave like this? Why do they act on the Web in ways that nobody would act in person, whether at a party or even in the privacy of, say, a doctor’s office? The answer is that the Web isn’t human. At least not yet. You are not a human being on the Web. In fact, as Paul Trevithick put it (at one of our first VRM meetings at the Berkman Center), the Web has no concept of a human being.”

From Doc Searls’ blog post for ProjectVRM, “Where Markets are Not Conversations” http://blogs.law.harvard.edu/vrm/2010/01/09/where-markets-are-not-conversations/

About ProjectVRM:

http://cyber.law.harvard.edu/research/projectvrm

“At the forefront of the security on the Internet, there lies the security problem of identity. How can internet users maintain their right to privacy while at the same time securing identity information when necessary? IP addresses are the means by which information is passed from one destination to another online, and play a role in identity online. Given the number of IP addresses available in its current iteration IPv4 and the increasing number of devices that utilize IP addresses, the urgency for a new solution is becoming apparent.”

From Dharmishta Rood’s blog post for Difficult Problems in Cyberlaw, “Cybersecurity: solutions that provoke questions” http://blogs.law.harvard.edu/difficultprobs/2010/01/10/cybersecurity-solutions-that-provoke-questions/

About Difficult Problems in Cyberlaw:

http://cyber.law.harvard.edu/cyberlaw_winter10/Main_Page

“Hosting an international event – a conference, a sporting event – is a classic strategy for rebranding a troubled nation. Concerned that your rigged elections and abysmal human rights record makes you look a little backwards? Host an international meeting on information technology to prove you’re firmly rooted in the 21st century. (Yeah, that went well.) Concerned that you’re better known for violent civil war and land mines than for your booming oil industry and bustling capital? Host the Africa Cup of Nations!”

From Ethan Zuckerman’s blog post “What happens in Cabinda doesn’t stay in Cabinda” http://www.ethanzuckerman.com/blog/2010/01/11/what-happens-in-cabinda-doesnt-stay-in-cabinda/

About Ethan Zuckerkman:

http://cyber.law.harvard.edu/people/ezuckerman

“Wednesday January 13th: The day after the terrible 7.0 earthquake which has left Haiti in an undefinable situation, Radio Kiskeya announces the persistence of the communication challenges [Fr] the island is facing: ‘…No radio nor TV station is available in Haiti this morning. Radio Kiskeya’s office has suffered damages. The telephone network is out of order.’ However, the Haitian blog from Le Cap Haitien, le Réseau Citadelle has been able to publish news as early as Tuesday 12th, when the disaster happened.”

From Fabienne Flessel’s blog post for Global Voices, “Haiti: Le Cap Haitien sends some news” http://globalvoicesonline.org/2010/01/14/haiti-le-cap-haitien-sends-some-news/

About Global Voices Online:

http://globalvoicesonline.org/about/

More Berkman Center community reactions to Google’s announcement about its Chinese search engine:

* Difficult Problems in Cyberlaw, “#GoogleCN news roundup”: http://blogs.law.harvard.edu/difficultprobs/2010/01/13/googlecn-news-roundup/

* Internet & Democracy, “Google Threatens to Pull Out of China, Cites Censorship and Cyberattacks”: http://blogs.law.harvard.edu/idblog/2010/01/13/google-threatens-to-pull-out-of-china-cites-censorship-and-cyberattacks/

* Harry Lewis, “Google: We’re Re-Thinking China”: http://www.bitsbook.com/2010/01/google-were-re-thinking-china/ and “Vaidhyanathan on China”: http://www.bitsbook.com/2010/01/vaidhyanathan-on-china/

* OpenNet Initiative, “Google’s China Decision Could Have Far-Reaching Implications”: http://opennet.net/blog/2010/01/googles-china-decision-could-have-far-reaching-implications

* Ethan Zuckerman, “Four possible explanations for Google’s big China move”: http://www.ethanzuckerman.com/blog/2010/01/13/four-possible-explanations-for-googles-big-china-move/

* StopBadware, “Google’s new stance on China raises interesting badware questions”: http://blog.stopbadware.org/2010/01/13/googles-new-stance-on-china-raises-interesting-badware-questions

* Donnie Dong, “Google’s Angry, Sacrifice and the Accelerated Splitting Internet”: http://english.blawgdog.com/2010/01/googles-angry-sacrifice-and-accelerated.html

* Global Voices Online, “China: Google’s possible exile leads to cyber protests; Netizens on move”: http://globalvoicesonline.org/2010/01/13/china-googles-possible-exile-leads-to-cyber-protests-netizens-on-move/

* Rebecca MacKinnon, “Google puts its foot down.”: http://rconversation.blogs.com/rconversation/2010/01/google-puts-its-foot-down.html

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The next FCC workshop is on “Consumers, Transparency and the Open Internet.” It’s is in DC on Tuesday. It should be interesting…

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I was both surprised and delighted — and how often do those things go together? — to see that Cory Doctorow reviewed the 10th Anniversary edition of cluetrain at BoingBoing. Thanks, Cory!

(Sorry for the self-promotion, but, as you may recall, being a bigger a-hole was the only resolution on my New Year’s list.)

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I just found out that last week or so, the national broadband strategy’s deadline was postponed by Congress from Feb. 17 to Mar. 17. According to Phil Bellaria, Scenario Planning Director, this will enable the team to circulate the report within the FCC for additional comment and polishing. (I just interviewed Phil for BroadbandStrategyWeek, but it’ll take a few days to post the video.)

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As part of FCC’s Open Internet tour, I got invited into one of the many group meetings the FCC has been holding, along with Nicholas Reville of Miro and Cara Lisa Powers of PressPassTV.org.

Nicholas talked about how difficult it would be for Miro to attract video producers if they had to worry that carriers might block or slow their traffic. Why not instead go to one of the Big Brands that can afford to pay the tariff? Miro — an innovative, public-spirited non-profit — would be unable to compete.

Cara compared the crappy local news coverage of a spraying of bullets in Dorchester with the responsible and careful job done by high school students, and pointed out that videos like those (enabled by PressPassTV) compete with the TV news offered by triple-play access providers. (Comcast is going to own NBC, after all.) The community is better served if she is able to compete on equal footing.

* * *

Since I didn’t have anything concrete and helpful to say, I took my five minutes to say the following (roughly):

The Net as a medium is not for anything in particular — not for making calls, sending videos, etc. It also works at every scale, from one to one to many to many. This makes it highly unusual as a medium. In fact, we generally don’t treat it as a medium but as a world, rich with connections, persistent, and social. Because everything we encounter in this world is something that we as humans made (albeit sometimes indirectly), it feels like it’s ours. Obviously it’s not ours in the property sense. Rather, it’s ours in the way that our government is ours and our culture is ours. There aren’t too many other things that are ours in that way.

If we allow others to make decisions about what the Net is for — preferring some content and services to others — the Net won’t feel like it’s ours, and we’ll lose some of the enthusiasm (= love) that drives our participation, innovation, and collaborative efforts.

So, if we’re going to talk about the value of the open Internet, we have to ask what the opposite of “open” is. No one is proposing a closed Internet. When it comes to the Internet, the opposite of “open” is “theirs.”

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