One thing I’ve discovered this weekend, is there are some people who suck the life out of a discussion. They use their popularity, their rank, their legions of fans, to overwhelm and crush any opposition. No, crush is a melodramatic word. They nullify opposition.

Sometimes they’re sweet in their weblogs; sometimes they’re not. Typically they’re held up for admiration and respect, and given accolades and affection by many. Yet there’s a dark side to them, a seeming need to control everything around them.

When they become involved in a discussion, the focus changes from the topic to the person. I don’t know about others, but it almost invariably leaves me going, “Why do I continue doing this?” They take what joy I have in this space, this writing, and they taint it, corrupt it.

People complain about trolls, but anonymous people who come into a space and leave a bit of snark are nothing more than the buzz of a bug. Flap your hand, chase them away. No, these people are never treated like trolls. Ostensibly, they don’t act like trolls. But when they’re done, if the discussion is not dead, it’s certainly been redirected. And they’re satisfied; they have control. Even if all their control brought, was discord.

I’m not perfect, I know that. This is more observation than proclamation. People read Techmeme to see what discussions to get into. From now on, I’m going to read it to see which ones to avoid. It’s not a healthy place for me.


Friday stuff but on Sunday

I realize my job here is to create entertaining stuff for you, but the muse isn’t on me. I’ll leave you other people’s creative stuff.

  • From the Indiana University anthropology department, The Museum of Weird Consumer Culture. Fake testicles for your dog. I kid you not. (via Metafilter).
  • Fish genetically engineered to taste like fish. Huh. From Malaria, Bedbugs, Sea Lice, and Sunsets.
  • Missouri hereby apologizes for subjecting the world to Senator Kit BondWaterboarding is like swimming…. No, not everyone in Missouri is an idiot.
  • If you thought that was bad, during the ice storm recently, our Republican governor warned against price gouging, which is illegal. Instead of having us turn in culprits to the state’s Attorney General–Jay Nixon, a Democrat who happens to be running for governor next year–Blunt advised people to tell the Better Business Bureau or the Chamber of Commerce. Yes, and next time you come across a drug dealer, let Walgren’s know…
  • Jeffrey Zeldman, on the call to disband the CSS working group because of the Opera lawsuit:

    Apple and Microsoft and Netscape and Sun and Opera have been suing each other since the W3C started. What lawyers do has never stopped developers from Apple and Microsoft and Netscape and Sun and Opera from working together to craft W3C and ECMA specs.

    And even if this time is different—even if, just this once, the existence of a lawsuit will stop a working group from working—I’m not sure it’s practical or advisable to cut browser makers out of the equation. For one thing, have you seen what the W3C comes up with when browser developers aren’t involved?

    I can attest to this. I diligently followed the RDF working group’s effort. No browser developers were involved in it. Turned my hair white.

  • Granny Hackers make History. Good story but…granny? If I ever get a chance to meet Tim Berners-Lee, I’m calling him Grandpa. (via Michael Bernstein)
Legal, Laws, and Regs

Arbitration fairness and rape

updated See CL & P Blog for in-depth update on the hearings for arbitration fairness.

Congress had another subcommittee hearing on the Arbitration Fairness Act. The Consumerist live blogged the hearing, accompanied by the expected pithy comments. Senator Brownback kept harping on the Kansas Fence Law.

HomeOwners for Better Building publishes an opinion piece by Susan Antilla from Bloomberg, which had some very interesting information.

When Theodore Eisenberg of Cornell Law School and Geoffrey Miller of New York University School of Law studied the arbitration policies of 2,800 public companies during 2002, they found that companies were using arbitration for 37 percent of their employment contracts, but weren’t so keen on arbitration when it came to business-against-business fights between “sophisticated actors.” In all, 11 percent used binding arbitration for some contracts.

It was surprising that companies would assert that they liked arbitration’s low cost and simplicity, they wrote, yet opt for the courts when they were in disputes with other businesses.

Feingold suggested a possible reason at yesterday’s hearings, calling arbitration an “unaccountable” system where the law doesn’t necessarily apply.

Consumer crusaders echoed Eppenstein’s assertions at the Senate hearing. They are fighting powerful forces, though. The newly formed Coalition to Preserve Arbitration already has submitted testimony applauding the virtues of arbitration to both houses of Congress.

Mandatory arbitration doesn’t deprive anyone’s rights, the group said in testimony, reflecting the opinion of 19 coalition members including Sifma, the U.S. Chamber of Commerce, the American Health Care Association and T-Mobile USA.

When it’s their turn to sue, though, you rarely find corporate heavyweights racing to arbitration. The grade schooler might ponder this question after learning about those branches of government: If arbitration works so well, why don’t corporations use it when they have a complaint?

So, when corporations want to sue other businesses of equal or greater economic strength, they rush to the court systems, rather than choose arbitration. Huh, how about that. Makes you wonder about their motivations when they want to force arbitration on their customers/employees.

The Hill writes that all this legislation is part of a string of similar legislation occurring now, because of the Democrats and the American Association of Justice–that’s the trial lawyer association–finds the climate more positive to put forth their their unreasonable demands. What are some of these demands? Requiring drug makers to add safety information to drug labels and forcing courts to release vital safety and health information from court cases where the transcripts are sealed–the lousy bastards.

The Pro-mandatory arbitration group, especially National Arbitration Forum–My nominee for biggest corporate scum on earth is now trying a different tactic, since the ‘fairness’ of the arbitration process has been, more or less, blasted out of the waters. Now they’re saying if mandatory arbitration is abolished, the court systems would be overwhelmed by cases.

First, arbitration not only requires the court system, it can require it twice: once to enforce a mandatory arbitration agreement that is disputed, and the second time to uphold an arbitration decision. In fact in these cases, the results are more likely to go up through the chain of appeals than typical civil cases. They’ve been in the Supreme Court several times. So, eliminating mandatory arbitration agreements and returning arbitration to its voluntary status will, most likely, decrease the burden on the court system, rather than burden it. And hey! If arbitration is so great, people will volunteer for this alternative, right?

The biggest news on the mandatory arbitration front last week, though, was the story of Jamie Leigh Jones.

Jamie Leigh Jones was a contractor hired by Halliburton/KBR for work in Iraq. Not long after arriving in Iraq, she was brutally raped and held against her will by KBR employees–kept in a shipping container and told if she didn’t keep quiet, she’d never get a job in Iraq or back home. The only reason she escaped is one of the KBR employees guarding her lent her his cellphone, and she called her Dad. Her Dad, in turn, called his Congressional representative, Representative Ted Poe, a Republican from Texas. Poe got the State Department to go over and rescue her.

That was two years ago. Why no criminal charges? For one, the Congressional bill giving immunity to contractors in Iraq would have prevented such justice.

Legal experts say Jones’ alleged assailants will likely never face a judge and jury, due to an enormous loophole that has effectively left contractors in Iraq beyond the reach of United States law.

“It’s very troubling,” said Dean John Hutson of the Franklin Pierce Law Center. “The way the law presently stands, I would say that they don’t have, at least in the criminal system, the opportunity for justice.”

In addition, neither the Justice department nor the State department investigated the crime. Why? Because it was left in the hands of KBR to investigate the crime. The company who has shown itself to be so fair to women. The same organization that promptly ‘lost’ the rape kit collected after Ms. Jones was rescued, and who has, since, not done a thing about the crimes against this young woman.

In a statement, KBR said it was “instructed to cease” its own investigation by U.S. government authorities “because they were assuming sole responsibility for the criminal investigations.”

Halliburton has since divested itself of KBR and says it shouldn’t be named in the suit. Na ah, Halli, you were involved at the time of the crime. Since Halliburton/KBR weren’t interested in punishing those who perpetuated this crime, Ms. Jones sought the only justice she could: in civil courts. But guess what?

Since no criminal charges have been filed, the only other option, according to Hutson, is the civil system, which is the approach that Jones is trying now. But Jones’ former employer doesn’t want this case to see the inside of a civil courtroom.

KBR has moved for Jones’ claim to be heard in private arbitration, instead of a public courtroom. It says her employment contract requires it.

In arbitration, there is no public record nor transcript of the proceedings, meaning that Jones’ claims would not be heard before a judge and jury. Rather, a private arbitrator would decide Jones’ case. In recent testimony before Congress, employment lawyer Cathy Ventrell-Monsees said that Halliburton won more than 80 percent of arbitration proceedings brought against it.

NAF has company for scummiest corporation on earth.

The Daily Kos is running a campaign to get people to contact their congressional representatives and urge them to support the Arbitration Fairness Act. Right now, 60 congressional delegates have signed on as co-sponsors but the battle is far from over. The heaviest corporate hitters are turning their might to defeat this bill.

There has never been another act in Congress that so divides Corporate America from Citizen America. There has never been another act that can return justice to more people than this act. People like Jamie Leigh Jones. People like you and me.



Snowing outside


Den of thieves

Recovered from the Wayback Machine.

Susan Mernit has a quote from professional photographer, Lane Hartwell, about setting her Flickr stream to private because of image theft.

What spurred this on was the popular Web 2.0 Bubble video, which I also linked, and which didn’t credit any of the people whose work it used. Hartwell wrote:

Matt Hempey, the creator of the video, saw fit to give Billy Joel credit for his song, and saw fit to give himself and his group, the Richter Scales credit but failed to contact me and ask my permission to license this photo, which is marked all rights reserved. I was not credited, and there also are no photo credits for any other images that appear in the video.

Today, Wired has an article on Lane Hartwell, where she states:

“I wasn’t upset by the video itself,” Hartwell said, but the brief flash of her photograph — without compensation or credit — still rankled. “I thought, ‘Where does somebody just get the right to take this?’”

Hartwell had her lawyer issue a takedown notice to YouTube. Mathew Ingram believes that Ms. Hartwell, and her lawyer, are in the wrong when it comes to copyright:

In any case, I think Ms. Hartwell needs to remember one thing: copyright law wasn’t designed to give artists or content creators a blunt instrument with which to bash anyone and everyone who uses their work in any form, for any reason. The copyright owner’s views do not trump everything, and never have. A split second view of your photo in a parody video doesn’t — or at least shouldn’t — qualify as infringing use. Period.

A question to the lawyers: does use of a work without giving credit violate copyright law? I would assume it would, though from this page not giving credit is considered plagiarism, but not necessarily a copyright violation.

ValleyWag had an earlier writing on this, and still includes a viable link to the video. In the post, Owen Thomas writes:

I’m not a lawyer, but I’ve heard plenty of lawyers say that fair use is a murky and difficult area of copyright law. The role of photo credits in copyright law is likewise not entirely clear to me. Giving credit where credit’s due simply strikes me as the polite thing to do. And surely not that difficult.

I suspect that the members of Richter Scales were simply lazy. The photo Hartwell took of me is the first search result for me in Google Images. It’s not particularly apt, either; I was working at Business 2.0 when she photographed me.

Thomas also goes on to quote YouTube’s Terms of use, and one thing it restricts is the use of photos in slideshows without getting permission, first.

Regardless, not giving credit should be heavily discouraged, rather than applauded. The Richter Scales group did this video not for the common good, but as a way of generating attention and publicity. How, then, can they assume that the creators of the photos used in the work wouldn’t also feel the same way about their work, contained within the video?

Is it a case, then, that I can go out and grab posts from Mathew Ingram and other writers, and use these to create weblog posts, without giving credit or linking the originals, call the total a ‘parody’, or better yet, ‘art’, and Mathew would not see any harm in such? After all, I meet his interpretation of fair use: I’m using published work, parts of the whole (the whole being the entire weblog), using in a post, which will eventually fall off the main page, and I can’t see how this would hurt Mathew commercially. I mean, does he sell his posts–five for a dime?

Tom Stachowitz writes:

This woman is a professional photographer and if someone wants to use an image of hers – even if it’s for something completely noncommercial – she deserves to be respected. How can anyone reasonably assume that you can just go out and take whatever piece of creative content you like without paying for it or even making a note of where it comes from? Worse, how can people defend the practice?

To me, the payment wasn’t as much of an issue as using the work without giving credit. I imagine that if the Richter Scales group had dropped Hartwell an email, told her about the project, and promised to give credit–and then gave it–Hartwell most likely would have given them permission. But they assumed and took and basked in the glory that they received for their work, without once giving a nod to the creators of the photos. They took, they did not pass on.

TechWag did mention that the heart of this problem could be not that her photos are online, but where they’re located: Flickr. People have taken to using Flickr like fisherman take to lakes stocked with fish. Flickr has tried to limit this by putting up a DIV element covering the photo so it can’t be right click copied. To copy the photos now, you have to deliberately look for the photo in the page and access it directly to bypass this barrier. This goes beyond “Oops, I thought it was OK to copy”.

I get requests, about every week or two, typically from naturalists sites or organizations to use bird or insect photos. I’ve never said no, and have generally given the sites free run to use any of my photos, as long as they give me photo credit. Asking for photo credit does not inhibit their use of the pictures.

I’ve now posted a photo use policy in the menu, which means such sites don’t specifically have to ask permission, first–if the use is not for profit. One thing that hasn’t changed, though, is asking that I be given photo credit.

If we get to the point where we assume all photos online are ours for the taking, without giving credit, rather than advance the state of art, we may inhibit it, as more photographers choose either not to put their works online for viewing–or choose to put them behind privacy barriers. Worse, if we get to the point where it’s “OK” to take pictures, or writing, or code, or anything of this nature without giving credit, we’ve become nothing more than a den of thieves.


In comments to Mathew Ingram’s post, Michael Arrington writes:

Shelley, Lane’s attorney is abusing the DMCA for his/her own goals. And copyright has nothing to do with “giving credit.” It has to do with being forced to license work unless it falls under fair use, which this clearly does.

Mathew is right, you are wrong. But since Lane is a woman, it really doesn’t matter what she did as far as you are concerned. She’s a woman, so she’s right.

One could also turn that around back to Mr. Arrington: since it was a ‘woman’ photographer who issued the takedown against a ‘man’ video creator, according to Mr. Arrington, Hempsey is automatically right while Hartman’s automatically wrong.

Taking this one step further: I, a woman, disagree with Mathew, a man, while siding with another woman. And therefore, according to Arrington’s logic, that makes me doubly wrong.

Second update has a more detailed look at the issue, both as an amateur photographer and friend to Hartwell, as well as links to several sites with comments.

Third update

Excellent coverage of commentary at Wired including a comment from Terry Gross, the IP lawyer that Hartwell hired.


Lane Hartwell’s post on this issue.