Quiet after yesterday's burst Personal Commentary9/7/2000; 6:34:33 PM After yesterday's burst of news, a relatively quiet day. Amazon leaked some addresses to some people; it was attributed to a technical failure and from the description, I find that highly likely. Other then a reminder that there is always failure in human systems, not that big a deal .Carnivore will march on despite criticism... well, who expected anything else? The list of people and organizations the FBI has to answer to is quite short, and "the public" isn't on it, except I suppose in theory.On a more personal note, I'm engaged in what's called the "capstone project" for my undergraduate education. This particular semester, the class was broken into groups of 3 or 4 and dispersed amounst 10 or so local businesses, to do something to prove that we can work in teams and solve real-world problems. We will do this by spending a semester engaged in activities that will bear a striking resemblance to my job... oh well, who really goes to school to learn things anyhow?The prof gathered a number of different types of businesses, including things like Melting Moments (an ice cream shop), the MSU Bootery (a local shoe store, emphasis on boots), and the like. At the last minute, one of these stores dropped out and a law firm was added.Guess who gets to work with the law firm? (No, I did not swing the issue either way, nor did the prof know about this site, as far as I can tell. Still doesn't, as far as I know.)This is the last time I'll mention this (and you'll note the lack of details like names), because I'm sure it would make the law firm uncomfortable. It's just interesting to see how life turns out some times.

Point - Counterpoint: Digital Angel in your Children Personal Commentary9/6/2000; 10:27:09 PM You may recall the Digital Angel. Dan Gillmore engaged in a point-counterpoint debate with a collegue about whether or not they would put one in their child:

I side 1000% with Gillmore.The generation gap of the sixties is nothing compared to what this would cause. Children can't be kept on a leash; can you imagine what will happen when a generation of parents seriously tries? It's always dangerous to guess what sociological effect something will have, but this seems plenty plausible to me.On a more practical note, why not fight parental fear with parental fear: Will your child really be more safe with this perfect location data floating around the computer networks... or will pedophiles, kidnappers, and internet stalkers thank you now that picking a child to attack is a simple matter of running a query on the data to see what children are alone when and where. (They will get this data, even if it means getting a real job doing something legitimate with this data. This data will be leaked, it's too valuable to protect.)You must understand that destroying these devices will be possible. A well-designed device should be effectively unspoofable (although don't bet the child on the first ten or twenty iterations of the technology), but they will always, always, always be able to be silenced.Now, you've given the attacker a big pointed arrow straight at your kid, and the attacker has destroyed that arrow behind him. Where's your gain?

Legal Puzzle UCITA9/6/2000; 9:34:45 PM

  • Contracts between parties in multiple states can specify which state's laws apply to the contract, a necessary ability when you have 50 states.
  • UCITA goes online in Maryland in less then a month, and companies will be able to specify that the click-through contract will be under the laws of Maryland, putting it under UCITA.
  • The reason click-through contracts are legitimate contracts is that it is an explicit provision of UCITA.
So, my question is, if you are not in Maryland, and you are faced with a click-through contract claiming to be under the laws of Maryland, can this non-contract (in your state) bind you to the laws of the UCITA, or, since it's not really a contract in your state, does it not matter as much as it has not mattered in the past (which is to say, untested water)?Who cares if the contract claims to work under Maryland's law if it's not a contract where you're standing?

Napster and DeCSS: Is it about free speech or free stuff? General IP Issues9/6/2000; 4:36:07 PM The single most balanced article I've seen on the topic. Sure to be ignored because it's too sane.(No good pull-quote. It's actually a two-in-one essay:

  1. If you want music to be free, make like the free software people and make some free music and distribute it, don't steal commercial music.
  2. The content owners shouldn't be cracking down on people making fair use, they should be cracking down on honest-to-goodness pirates.)
Observation: If the music companies and movie companies weren't trying to rape consumers in the mistaken impression that we won't mind buying the same song 4 times (two cars, home, and work) and the same movie twice (once VCR, once DVD), I would not feel as sympathetic towards the "information wants to be free" people as I do (even though I disagree with them, too... this essay matches my opinions pretty well). It's a defensive reaction in me, trying to support the "information wants to be free" people as a counter-balance to corporate rapaciousness. I expect this to be a normal reaction as more people start to understand what these companies are trying to pull. If the companies would mellow, some of these problems may well go away on their own!

Ruling against MP3.com could cost $118 million Music & MP39/6/2000; 4:13:04 PM 'A federal judge today found that MP3.com willfully infringed the copyrights of Seagram's Universal Music Group, opening the company to enormous potential damages in one of the first trials to address the legal boundaries of Internet music distribution.'I'll just say this: That MP3.com can be found in copyright violation is OK. But I don't buy for one second that it was a willful violation when there was nobody on the planet who knew either way.To willfully violate the law, one must know that what one is doing is wrong. Frankly, the copyright situation being what it is on the web, "just do it and let the courts sort it out" is the only way to do business. If somebody else tries the exact same stunt tommorow, that would be "willful violation". In the meantime, this should be seen as testing the waters.(Had the members of the MPAA tried the exact same thing, I bet it would not be found "willful", even if it was a violation. Not that they'd do something like this.)(Perhaps the legal standard for 'willful' is different; I'm not a lawyer and I'm assuming there's some component of "must know the action is wrong". Still, the Findlaw dictionary defines it as "not accidental: done deliberately or knowingly and often in conscious violation or disregard of the law, duty, or the rights of others".)

To link or not to link? Free Speech9/6/2000; 4:02:53 PM A good summary article from Upside on the recent trends and ruling relating to linking. I think I've covered them all, but this is an excellent review (and if you encountered this story by browsing through my archives, this is an excellent article to start with).One thing jumped out at me though, relating the Ticketmaster vs. Tickets.com to Bidder's Edge vs. E-Bay:'The Ticketmaster v. Tickets.com decision therefore does not present a bright-line rule protecting those who seek to link or use spiders. Rather, it leads to a case-by-case factual analysis. The more that linking and spidering cause actual harm to an aggrieved party, the greater the chance of judicial prohibition of such activities.'Seeing the case in this light makes me realize why I approved of the ruling in Bidder's Edge vs. E-Bay, but was extremely uncomfortable with the reasoning used, which was a trespassing doctrine.Bidder's Edge was not trespassing in the sense of causing damage just by their undesired presence, they were actually doing damage by accessing E-Bay so much that they accounted for a significant percentage of E-Bay's bandwidth. It had nothing to do with linking and everything to do with what amounted to a small-scale Denial of Service bandwidth + computing resources attack.Judges should only look for real damages done, and not look at links at all. Bidder's Edge could equally easily simply be accessing E-Bay computers repeatly for the purposes of collecting statistics on applied psychology as seen in auctions; if 'linking' is the problem, then this behavior must be acceptable, despite the fact it still causes just as much damage. Linking is a phantom problem, trumped up only because they are easy to point at and show off in court. If Tickets.com could read Ticketmaster's site without undue damage* to the computers, and extract only information that is quite explicitly not protected by copyright, no matter what disclaimers Ticketmaster puts on their site, then more power to them.Links themselves should still not be looked at as somehow transmitting responsibility for the content on the other end.(* BTW, to the judge in the Bidder's Edge vs. E-Bay case, a bandwidth + computing resources drain is not like taking a hammer to a computer! There's more kinds of damage then just physical that one can do to a computer.)

Maryland's UCITA May Have National Reach UCITA9/6/2000; 4:01:36 PM 'In less than a month, the controversial software licensing measure UCITA will become law for the first time, in Maryland. And it's an event with potential national implications for all end-user companies.'...vendors can still cite Maryland law as their "choice of law" in a licensing contract, no matter where the vendor and licensee are located, said Jean Braucher, a University of Arizona law professor in Tucson and critic of the measure. "The key point is, you don't need any connection with Maryland, at least under UCITA," she said.'Pay attention, this will affect you. The IS department where I work, which has had a fairly lax policy on foreign software, will probably have to crack down... we probably can't afford people entering binding contracts just so they can play Squash Zippy the Bear or some other stupid Macromedia game. The new era of Trojan Horses is nearly upon us, and the damage they do may well go beyond any technical virus could do...

'Carnivore' unlikely to be validated Surveillance and Privacy from Government9/6/2000; 9:22:12 AM A surprising good article from USA Today, which tends towards fluff pieces on these issues.'Five groups of researchers have bowed out of the competition to evaluate the so-called Carnivore Internet surveillance system. And that likely will dash Justice Department hopes that a major university would validate its controversial eavesdropping device, participants said Tuesday....'"This is not a request for an independent report," says Jeffrey Schiller, a computer network manager at the Massachusetts Institute of Technology who was asked to work on the review. "They want a rubber stamp."...'The controversy surrounding the carnivore audit springs from several issues. Among other things, the Justice Department says:- Universities and any other contractors must agree not to publish anything the government deems sensitive. - Researchers may examine only those matters the government wants examined. - Teams must agree to clear all personnel working on the evaluation with the government.'Under these conditions, particularly the second, I wouldn't want to do it either. What good would the approval do for the government anyhow? The reviewers can't even catagorically state that they've actually examined Carnivore... it could well be a system trumped up just for the review.It will be interesting to see how Congress reacts to this.

FCC To Rule On Copy Protection Technology Dispute DMCA9/6/2000; 9:01:26 AM 'Led by the Motion Picture Association of America, copyright holders want the FCC to require that circuitry be built into nearly every digital TV device - receivers, VCRs and set-top boxes - that will prevent recording programs carrying copy protection information set by the program's owner. Negotiations between the MPAA and electronics manufacturers broke down early this year, and on April 14 the FCC, which had hoped the two parties could reach an agreement, said it "reluctantly" would make the decision.'I guess they're taking another shot at removing the ability to use VCRs for anything except buying prepared video tapes and consuming, consuming, consuming.Note that we've already been around this circle, you've probably seen it come up in the DVD & DeCSS coverage. The early 1980's Sony Betamax court cases established the legality of VCRs. Napster has been trying to use this case in its favor.Now the DMCA comes along and the MPAA wants to use it to strip us of these previously acceptable uses when we move to digital TV... and that move is itself being driven by the MPAA, not by consumer demand, for this very reason. Can we say "effective monopoly?"The sick part is, under the DMCA, the FCC is obligated to rule in favor of the MPAA.The Home Recording Rights Coalition has prepared a message form you can use to send your opinions to the FCC. Please do.

Digital Delusion Digital Divide9/5/2000; 1:37:45 PM 'The digital divide is a delusion because its proponents confuse access with opportunity. The notion that digital access both perpetrates and perpetuates economic and racial disparities would be laughable were it not for the fact that so many solemn-faced pundits and pols insist that it is so. Still, even the best of intentions should not be allowed to substitute for the rigors of genuine thought and integrity.'... The happy reality is that market forces have given more people more computing and telecommunications power cheaper year after year. Digital technology is becoming a mass medium quite independent of public policy initiatives that seek to replicate a "welfare state" ethic in cyberspace.'The American challenge is not "How do we improve access to the growing array of digital media?" but "How do we encourage people to make these media a productive part of their lives?"'