Categories
Legal, Laws, and Regs

A busy Supreme Court

The Supreme Court issued four significant rulings today, before taking their summer break.

The first, which has been getting most of the attention, is the Grokster ruling. Though I’m not quite as complacent as Don Park about the ruling, I don’t believe it is, in actuality, the death of openness and innovation. After all, we’re still capable of generating and consuming RSS feeds; what other technology could we possibly need or want?

From the BBC report it would seem that the originators of a technology will be liable primarily if they promote the technology as a way of infringing on copyright. How this is to be interpreted is going to be a challenge, and will most likely bog down many a court system, but I don’t think anyone is really and truly surprised the courts made this decision–even with the reliance on the old Sony Betamax ruling used by Grokster in defense. From my admittedly limited knowledge of the Supreme Court, their task seems less a job of defining black and white, as much as it is delimiting various shades of gray; sometimes the difference between the shades of gray is hard for the untrained eye to detect.

On the one hand you had the old betamax technology and Sony not being held liable for copyright infringement, as Sony shows that the majority of use of the technology is for legal purposes. On the other hand, you have Grokster, where most users spend much of their time thumbing their noses at Hollywood and bragging about how they got such and such song, movie, and/or television show for free.

Regardless, this isn’t the death of P2P; this isn’t the end to innovation. You sell us all too short when you say that.

The second ruling was on the use of cable for broadband internet access. In this, the Court sided with the cable companies and the FCC and said they do not have to allow competitors to use their wires. This is a disappointment, as opening the wires would open up competition, and hopefully drive down prices.

However, David Weinberger points to Susan Crawford’s analysis of this ruling, where she says that the ruling does give the FCC control over most of the bits that flow on the Net:

This is very very big. This means that even though information services like IM and email don’t have to pay tariffs or interconnect with others, they may (potentially) have to pay into the universal service fund, be subject to CALEA, provide enhanced 911 services, provide access to the disabled, and be subject to general consumer protection rules — all the subjects of the FCC’s IP-enabled services NPRM. I’ve blogged about this a good deal, and now it’s coming true: the FCC is now squarely in charge of all internet-protocol enabled services.

Susan’s reasoning is that because net access now falls under an “information service” it falls under the FCC jurisdiction and, …the FCC can make rules about these information services under its broad “ancillary jurisdiction”.. Does anyone else see this?

From the publications I’ve read on this, this isn’t seen as an issue. What is, is the power given to the cable companies to control services such as VoIP. More, I’m concerned about what happens if DSL and cable work together to limit wireless access. For instance, the entire St. Louis downtown is wired for free use. Could this eventually be limited as somehow anti-competitive and therefore ‘harmful to innovation”, as the FCC would define it?

All I can say is: shop your beliefs. Not happy with this ruling and cable? Turn it off, and let them know why you’re turning it off. You can still download Stargate through BitTorrent.

Though both these items are getting wide play in weblogging, it is actually the two other ruling that concern me the most, and both have to do with the Ten Commandments.

The Court, in two separate rulings, stated that posting the Ten Commandments in Kentucky was unconstitutional, but a display in Texas was not. Why the contradiction? The Court decided the latter was part of a historical and political display that de-emphasized the religious nature of the monument. According to Reuters:

In the Texas case, Rehnquist said for the majority that the state has treated the monuments on the capitol grounds as representing several strands in the state’s political and legal history.

Justice Stevens, in minority dissent, :

…argued it was an improper government endorsement of religion. “The monument is not a work of art and does not refer to any event in the history of the state,” Stevens wrote. “The message transmitted by Texas’ chosen display is quite plain: This state endorses the divine code of the Judeo-Christian God.”

This opened a big ole hole into where religion ends and government begins. Now, when a religious artifact can be displayed, and when not, is going to be difficult to determine.

I didn’t now this but Missouri had one of the same statues in our state’s Capitol grounds. No one had ever complained about it. But from the story, it would seem that most people just ignored it. It is, after all, not art.

The point is, this is a crack. And its a scary crack. Of the rulings, the Texas one is the one that will disturb my sleep tonight. What good is open file sharing if you can’t share the Quran? And what good is it to have cheap broadband, if all that flows through it is what the American Majority wants to read, see, and hear?

 

May 12, 2012: And today’s hot download is a video of a popular purple dinosaur, you know who, singing “Jesus loves me, this I know, cause the Bible tells me so…”

Categories
Copyright Weblogging

The EFF’s Blogger legal guide

As much as I’ve tweaked the issue of Creative Commons and weblogging accountability, I would be remiss if I didn’t provide a link to EFF’s Legal Guide for Bloggers.

The guide provides some good overview of issues such as legal liability, copyright, and defamation. It isn’t detailed, but chances are if you need detail, you probably need a lawyer.

The guide does reference Creative Commons, but a very neutral overview of it, primarily pointing us to the CC site. If I think one section is weak, it is the section devoted to copyright, Creative Commons, and people making comments:

When a person enters comments on a blog for the purpose of public display, he is probably giving an implied license at least for that display and the incidental copying that goes along with it. If you want to make things clearer, you can add a Creative Commons license to your blog’s comment post page and a statement that by posting comments, writers agree to license them under it.

Just to clarify this: if you comment here, it’s going to display here. If you don’t want it to display here, don’t comment here. If after you comment, you regret the fact — delete the comment. If you can’t manage your own destiny with all this, and you sue me, I’ll send Microsoft after you. After all–I’m the only blogger that hasn’t condemned MSN Spaces and blamed the company for the upcoming fall of the internet. The company owes me.

Categories
Copyright

What we hear

Recovered from the Wayback Machine.

Lawrence Lessig posted a graphic of the spread of Creative Commons throughout the world. He used some interesting words to describe the colors:

As of Thursday, the current spread of Creative Commons. The green are countries where the project has launched. The yellow are close. The red is yet to be liberated.

(em. mine)

The red is yet to be liberated.

Joi Ito responded with:

A lot of progress but a lot left to do.

Yet no one, not one person has responded to the test challenge I did with the Creative Commons license, or the carefully written responses by Dennis Kennedy and Denise Howell at Corante’s Between Lawyers. It’s as if there’s a buffer around the license and absolutely no criticism or questioning of it is allowed.

What was more disappointing, though, was the fact that given this silence, the Corante folks still kept the CC license up at their site. Is it, then, that no one, including the CC people themselves, really take this license seriously? Then what the hell use is it, other than a way of marking yourself as a good weblogging citizen?

Categories
Copyright

Creative Commons follow up

Dennis Kennedy wrote an excellent follow-up post on the Creative Commons discussion this weekend. Excellent. I particularly wanted to note the following:

One of my biggest concerns about the Creative Commons license has been the lack of guidance from CC on practical interpretation and enforcement issues. I’ve held off commenting on the issue Shelley raised because I expected to see something from CC on the topic. Unfortunately, my daily check of the Creative Commons blog has shown mainly the usual victory laps being taken when a high visibility site or celebrity uses or mentions the CC licenses, although I’ll note that news of a tweak to one of the licenses has been mentioned. I make no secret of my belief that this approach is not especially helpful and opens the CC to the criticism that it is more of a marketing gimmick for CC than a serious effort to benefit the Internet community by providing a workable and well-accepted license.

The point is good: for the CC license to be anything but puffery, the CC folks can’t resort to ignoring challenges that have been raised; or using the usual weblogging tactic of sending in hordes of supporters to challenge either the person or their motives.

There is much more to read in Dennis post. It is, like Denise’s writing and commentary this weekend, a breath of fresh air in an environment that has, lately, become too close for comfort.

Categories
Copyright

The copyright theme

Recovered from the Wayback Machine.

I thought I would take my new Wordform theme out for a spin, let you all see what it looks like. It’s a work in progress, so it may not show correctly in all browsers.

I was inspired by the look at Corante’s Between Lawyers. Well, actually more than inspired — this look is almost a direct copy of the existing layout and style sheet from the site.

I got the inspiration for the new theme when the good folks at Between Lawyers were debating whether to include a Creative Commons license at their site. When they did, they added the license into the page with the addition of a note that Unless otherwise expressly stated, all material included in this weblog and its archives is licensed under a Creative Commons License. I looked to see if there was a copyright notice for the stylesheet and look, but couldn’t find anything within the page. I then assumed that since other copyright information wasn’t provided that abrogated my ‘borrowing’ of the look, it was fine to go ahead.

According to the license they have I must attribute this design to them (done), not use it in a commercial work (done), and not build upon or derive any work from it. This latter part is tricky because what does ‘build upon’ and ‘derive’ mean in the context of a style sheet? I assumed it means use the original stylesheet settings, which I have done — actually copying the original from Corante. Now whether me creating a new theme on the Corante stylesheet is ‘building upon’ the site’s look is a different story.

In the end I decided that I wasn’t building upon so much as redistributing the look, very similar to copying text from the site and republishing it in various weblogs. In this regard, then, I feel I am complying with the letter of the law. As for complying with the spirit of the law–hard to say: I’m not a lawyer, don’t play one on TV, and only have my judgment to go by in interpreting the license.

I will admit, though, that this was a lesson to me in the uses of CC licenses and how they are attached to specific items. Right now, most CC licenses are just plunked into a web page without any regard to precision–which, considering the nature of a CC license, always stuck me as a little odd.

My own use of CC licenses is much more restrictive. For instance, I add CC licenses for each specific component of the page I want to license, whether it is an image or the text of a post. Since I have full support for complex rich metadata in my weblogging tool, and don’t have to worry about adding multiple blocks of RDF/XML to my web pages, I can add as many license blocks as I want for each. To make it simple to discover the CC licensed objects, I even provide an alternative view of my metadata, called My World of Freebies that lists out the items per entry that are licensed.

Instead of RDF, I could have used microformats, and just added a “rel” tag pointing to the license to each item (image or text block)–this is what the Creative Commons folks are suggesting. However, without understanding what “rel” means in this context (after all, we have seen the “rel” attribute used for “nofollow”, as well as “tag” for Technorati tags) and ensuring that we all share a consistent understanding of how it is used, it’s use is still very imprecise.

I had planned on calling the new theme “Corante”, but decided that a better name would be the “Copyright Theme”. My thanks to Corante, though, for giving it to me.

screenshot of the Corante theme.

(By the way, I’m taking recommendations for Industry News and Industry Insiders.)