Artur Rubenstein's obituary of more than twenty years ago is well worth reading at any time.

There's a virtual graveyard of online obituary sites out there -- places where people tried to build a business out of allowing families to post memorial pages. It turns out that local newspapers can survive doing this, but it's a hard start-up quest. The funeral industry offers online memorials as a line item.

What happens when you die online?

There's a house that a man named Seabury Tredwell bought in 1835 for $18,000 on East 4th Street here in New York. It's now a museum, and for a small amount of money you can remind yourself how different the world used to be. Seabury's youngest daughter, Gertrude, lived there until she died in 1933 at the age of 93, penniless and lying in a four-poster bed hung with tattered, fraying curtains.

They found a bolt of fabric in the attic and re-did the bed curtains, and everything else is as it was in 1870 or so -- a family house around which the lower East Side grew up. You're supposed to be reminded of Henry James's Washington Square, and Gertrude has a sad story of love denied associated with her. But it reminded me of Being There, and the gardener suddenly stumbling outside his lifelong home into 1970s Washington D.C. (He tells someone that his name is Chance, the gardener, and she hears that as "Chauncey Gardiner" and takes him straight home.) Let's just say that the house stands very much by itself, isolated but real.

When someone asked the guide what the small round screens were that were sitting on the (now completely inoperable) piano, he said that people reading books or writing letters by the light of a candle would use these screens to keep direct light from shining in their eyes. Direct light was too much, even though the candle put out (puts out, I guess) only about 50 watts. People lived their lives in daylight or dimness.

He also said that even though there were eight children and travels and prosperous times and a farm in New Jersey, the family had left behind only three letters. Everything else had presumably been destroyed. The three letters were tantalizingly chatty and warm. As a result, the museum staff knows a lot about the furniture in the house but almost nothing about the people who lived there.

As you go out you notice the steep marble steps to the front gate, and you think about the people who kept those steps clean and watched the neighborhood change. All gone now, and no letters left behind.

So we now live in constant bright light, if we want to. Darkness has been completely overcome, and every bagel store is lit hotly and evenly -- not a shadow survives. We also leave very complete records of our lives (maybe involuntarily) as we move around the world. We write few letters (except for thank you notes), but we leave innumerable messages of various kinds everywhere. Our histories are well-lit (if we want them to be), and our networks transcend boundaries like Broadway or the Hudson River. I don't have a conclusion to offer, but it felt good to explore another world. No wonder the Victorians embraced the telegraph.

In this mid-holiday period, as the city settles down to serious movie-watching, it's important to remember to write a few thank you notes. For things, let's say, you received intentionally and gratefully. I try to do this, and this year I even have both cards AND stamps, so things are looking up.

And I got a tremendous boost in the thank-you-note department during a recent meeting when a copy of such a note was handed around. It was from a member of the group who had retired from active service (this was a meeting of a nonprofit board). And it said:

"Dear Board of Directors,

What a pleasant surprise I had upon opening my mail this morning. I certainly appreciate not only the wonderful plague you sent me but the words inscribed on it."

Now, this really ties everything together for 2003: SARS, volunteerism, A Christmas Carol (there's something of the Ghost of Christmas Future in that plague arriving), apocalyptic visions, and surprising things arriving in the mail. And what on earth were the words inscribed on it? "Abandon Hope"? or (particularly if you've seen The House of Sand and Fog this season) "Don't Forget To Open Your Mail"?

Still and all, it was a thank you note, and there's a reason to be grateful for almost everything. Even plagues, I guess.

Thanks to all.

I have a new favorite case. It is called Hush-a-Phone v. FCC, and it was decided in 1956 by the D.C. Circuit.

AT&T filed a tariff (a document that it hoped the FCC would approve that listed the terms and conditions and prices for AT&T's services) with the FCC. One of the terms of the tariff was that no devices that hadn't been provided by AT&T could be attached to AT&T's phones. If a "foreign attachment" was made to a phone, the telephone company claimed the right to suspend or terminate phone service.

Hush-a-Phone complained to the FCC in 1948 (note the long delay between the complaint to the FCC and the final decision -- eight years). You see, Hush-a-Phone had for 25 years made a cup-like device that could be attached to phones so that speakers could have private conversations -- "It is designed to permit the speaker to confine his voice within the enclosure formed by the device so that it is not heard by persons in the speaker's vicinity, thereby providing privacy of conversation and office quiet. It is also designed to improve telephone reception in noisy locations by keeping surrounding noises out of the telephone transmitter and thus out of the telephone circuit." But when vendors heard the AT&T threats, they stopped selling Hush-a-Phones. Hush-a-Phone wanted the right to sell these attachments.

The FCC dragged its feet. It held hearings. It took the matter under advisement -- for more than four years. FCC finally emerged with the opinion that the use of Hush-a-Phones impaired telephone service. How? Not by hurting any of the facilities of the phone company, but because the device was "deleterious to the telephone system and injures the service rendered by it." Apparently the Commission felt that when Hush-a-Phone was used the people on the other end of the conversation couldn't hear the Hush-a-Phone-ee clearly.

The court (Judge Bazelon) wasn't persuaded.

The question, in the final analysis, is whether the Commission possesses enough control over the subscriber's use of his telephone to authorize the telephone company to prevent him from conversing in comparatively low and distorted tones. . . .

To say that a telephone subscriber may produce the result in question by cupping his hand and speaking into it, but may not do so by using a device which leaves his hand free to write or do whatever else he wishes, is neither just nor reasonable.

The court found that the proposed tariff was an attempt to prevent the user's right to use his telephone in a privately beneficial way without being publicly detrimental. AT&T had said that it had a device that subscribers could use to achieve a quiet line (push-to-talk), but the court noted that

The mere fact that the telephone companies can provide a rival device would seem to be a poor reason for disregarding Hush-A-Phone's value in assuring a quiet line. The Commission's approach is well calculated to raise those very questions under the antitrust laws which petitioners seek here to raise, but which, in view of our decision, we do not reach. It also tends to raise another question which we do not reach, namely, the reasonableness of a tariff which places control over petitioners' business in the hands of intervenors in the first instance.

It's a very brief opinion -- just three pages -- and it is probably well-known to FCC fans. But I'd never heard of it before, and I'm cheering:

A system whereby intervenors may market equipment until such time as the Commission orders a halt, while petitioners may not market competitive equipment until the Commission givers them an authorization, seems inherently unfair. The unfairness is enhanced from time to time when the Commission's adjudicatory process bogs down. In this case, for example, more than four years elapsed between the oral argument of the exceptions to the Commission's initial decision and the final decision which left the initial decision essentially unchanged.

Super DMCA connections, broadcast flag connections -- they're all there.

Gary Marcus was on the radio today, plugging his new book: The Birth of the Mind. Like the guy who wrote The Future of Ideas, this guy has a big title. And, like TFOI, it sounds like a very interesting book.

Marcus said he had been a PhD student of Steven Pinker, author of The Blank Slate. He said that he felt he had taken what Pinker had written and had expanded on it -- saying that humans are "pre-wired" (rather than "hard-wired") to act certain ways, but that their environment can change them. Most importantly, the few genes that create the brain allow us to be "re-wired" -- make it possible for us to either play out our florid genetic destiny or, due to the influence of our environment, come out entirely differently.

This is based just on the jacket copy and a 20-minute interview, but it's great to hear about someone working on the relationship between psychology and the human genome. This man Marcus has spent a lot of time talking to seven-month-olds, and he swears they're much smarter than we think.

He also said that now that he has tenure it's easier to concentrate on cross-disciplinary work that doesn't fit into any received category. This is a theme that has been hitting us in our collective noses for some time now. If you read the Christopher Reeve interview in the Nov. 10, 2003 New Yorker, you'll hear the same song. I can't find a link to it right now online, but here's a short quote:

Reeve believes that too many researchers lack a sense of urgency.

As Reeve became acquainted with the scientific community, he grew frustrated by the widespread careerism. "Professors with tenure submit a grant application to get a little bit of money to try to have a little bit more success, which would then get them another grant and than another few years to achieve another little bit of success, but not to launch a major preemptive strike to get rid of the whole problem," he said. Later, he added, "I want things to happen quickly. I certainly want to benefit within my lifetime. I don't want to get out of this wheelchair at the age of seventy-five. I am fifty-one, and am now very healthy, and would like to be out of the chair very soon. I'm not willing to resign myself to being an advocate for research that will benefit people only after I'm gone. I'm not that noble." He laughed, but it wasn't a joke.

So, there's some link here to internet policy ("My point is, and I do have one..."). It would be good to use some cross-disciplinary and somewhat risky approaches to thinking about online governance -- particularly when it comes to spam, identity, and security. That's where peer governance may come in -- more on that tomorrow.

Michael Hawley of MIT is putting out the biggest book ever. Mr. Hawley is an inspiration -- he's a fine pianist, an imaginative computer scientist, and a photographer, but those titles don't really capture what he does.

Looking around at what Mr. Hawley has been up to took me to the Van Cliburn International Piano Competition for Outstanding Amateurs. Bios of past winners are posted. (Mr. Hawley won this competition at one point.) There are several computer-related careers described -- there's also a guy who "resides in New York City, where he is an Assistant Manager at Starbucks Coffee."

In many private conversations, I've said to myself and others that if I don't try to do more than an entry a day, and only write when I have something to say, blogging will be just another part of my life -- neither an obsession nor a chore, but something I do because it's worthwhile.

Well, I ran across a September '03 blog entry from William Gibson that made me think. He says that he's found "blogging to be a low-impact activity, mildly narcotic and mostly quite convivial." I'm with him there, although "convivial" would require that people who visit leave comments so that I can be in touch with them -- but never mind. I'm not William Gibson. It's convivial enough.

But then he goes on: what blogging really does for him is remind him that he's not writing. And he wants to go back to writing. So he's abandoning his blog. Here's the best part:

The bits and pieces that Joseph Cornell assembled in his shadow-boxes wouldn't have seemed nearly as interesting if he'd simply left them arrayed on the bench of some picnic-table –- and they certainly wouldn't still be there.

I crave the sweet and crazy-making difficulties that can only be imposed by the box, the Cornellian stage, the frame, of a formal narrative.

So he exits, saying he won't be blogging again.

I've seen those Joseph Cornell boxes, two years ago in a Surrealism exhibit in a faraway museum (in what now feels like a very faraway time). Here's one. Cornell worked over these boxes for years, going from his narrow cold home to flea markets to gather materials, imposing order and creating beauty within a box.

Blogs don't have structure. They're selfish pieces of text -- spread out by the author, then disappearing below the fold as time marches on. They don't stick together, these bits of text; they spray. And yet they take absorption and time to create.

Is it worth it? Is dot blog worth it? I'm still of the mind that the answer is "yes," at least for me. I'm not William Gibson, although I'd like to be (what's not to like?), and I need breaks from the other daily things I do. But there's a reason so many blogs are abandoned.

I thought the district court's opinion in Verizon v. RIAA that "the language and structure of the statute, as confirmed by the purpose and history of the legislation" dictated that Verizon had to respond to the subpoena was powerful. It did seem to me that the content industry and ISPs had made an arrangement in the DMCA to get particular pieces of personal information to the claimant quickly, and that § 512(h) on its face authorized the issuance of a ministerial subpoena to an "‘[internet] service provider" without regard to whether the ISP's function -- that is, whether or not it was actually storing the material. I guess I was wrong.

The DC Circuit ruled today that the notice and takedown provisions of the DMCA don't apply to the conduit functions of an ISP, and so therefore if Verizon isn't storing the material on its server it doesn't have to respond to a 512(h) subpoena. Verizon just can't "take down" something it isn't storing. RIAA argued that Verizon could just cut off the subscriber's access to the internet, but the court made short work of that argument -- that's a different remedy, the court pointed out.

The court dealt with the words, structure, history, and purpose of the statute very carefully. (Note for flag litigation: "The plight of copyright holders must be addressed in the first instance by the Congress; only the '‘Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.' See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984).") I'm persuaded.

But what I'm most moved by this evening is the energy that Verizon put into this case. I've heard Verizon policy people talk about this case, and I know they cared about it a great deal. Other ISPs just decided to respond to the subpoenas, but Verizon refused. Some have suggested that V did this because they wanted more file traders to subscribe -- but V points out that because people pay a flat fee it doesn't matter what they use their connection for. Although you could still be cynical, saying that V just wants to be popular and get more customers, what's wrong with that? They must have believed in the privacy of their subscribers to fight this hard. It's a clear, hard-fought, tremendous victory for Verizon, and it's a rare thing for a company to take on a matter of principle like this. I'm very impressed, and I'm glad I was wrong.

This is David Johnson's idea: Peer governance is our new goal. It must be that for some kinds of online collective action problems, relying on individuals to make decisions about their environments is more just, more efficient, and just plain more sensible than trying to make one-size-fits all rules from above. But peer governance has to involve individual energy, interest, and engagement in order to work (right?). Otherwise we'll end up with just one tool that everyone uses. Because we all synchronize.

Joho the Blog has a good post on "a government of citizens". I'm curious whether this idea will keep going -- once people realize that policy can be taken into their own hands, they won't need a government to implement what they want. Through tags and flows, filters and connections, they'll be doing the work themselves.

Also: I liked this post about LinkedIn. How do you categorize a relationship? Answer: you can't say it in words, but you might be able to say it in terms of the strength of your informational bond (connectedness) and your willingness to receive messages from the other guy (filteredness). Categorization from above just can't capture that nuance.

If you have not read or heard it yet, I urge you to read or listen to (or, preferably, both read AND listen to) the address Justice Breyer delivered at Brookings/AEI on December 4. It is a lovely lecture, delivered with grace and precision, entitled "Economic Reasoning and Judicial Review." Like all good lectures, it has something for everyone.

For me, the most striking thing about this talk was not the careful analysis of three cases in which economic reasoning would have helped but didn't happen (for various reasons) but Justice Breyer's characterization of his own dissenting opinions as elements of an evolving legal conversation. When I was an undergraduate, I was always thrilled by A. Bartlett Giamatti's invocations of the various meanings/important elements of a liberal arts education (his essays had something for everyone too -- see A Free And Ordered Space and you'll understand). At about 57 minutes into his talk, Justice Breyer manages to tie the legal conversation and the liberal education together, and it's a great moment:

I do not mean to say that courts, in applying or developing copyright law or any other branch of law, directly follow public opinion. But I do mean to point out that the shaping of law in America is a highly democratic process. New law is less often decreed from on high by a court or a legislature than it "bubbles up" from below. Often the law-making process resembles a kind of conversation among many interested groups, including experts, specialists, commercial enterprises, labor unions, various interest groups, and ordinary citizens. That conversation takes place in journals, at seminars, in newspapers, at hearings, and in court proceedings. The decision of one institution is taken as a datum by another. It may be embodied in administrative rules, statutes, even constitutional interpretations; but none of these is permanent; all are subject to change or gradual evolution.

Michael Oakeshott, in describing liberal education, better explained what I have in mind. "The pursuit of learning," he said, "is not a race in which the competitors jockey for the best place, it is not even an argument or a symposium; it is a conversation. . . . [E]ach study appear[s] as a voice whose tone is neither tyrannous nor plangent, but humble and conversable. . . . Its integration is not superimposed but springs from the quality of the voices which speak, and its value lies in the relics it leaves behind in the mind of those who participate." Similarly, the development of legal methods and analysis is a collaborative, evolving process. The law is continuously renewed. To steal a philosophical boating metaphor, we renew it plank by plank while it floats upon the sea.

Take the time to listen to this talk if you can -- it's well worth it, and the "open-textured" approach espoused by Justice Breyer is civility itself.

I have a title for my next article -- so it is just about finished. The genius of courts is that they're not neutral or representative or anything else (or even more logical than other institutions), it's that they are not political -- they're not institutionally ambitious -- unlike the Mass Media Bureau of the FCC. So only courts can decide what the jurisdiction of an agency is.

We want certain decisions made by courts -- like whether the FCC had jurisdiction to issue the broadcast flag rule. No court should defer to FCC's decision about its jurisdiction in this regard, particularly in the absence of any explicit statute, and particularly because FCC has said many times over the years that it has no jurisdiction over copyrights. The fact that FCC changed the title of its rule from "copy protection" to "content protection" at the very last moment speaks volumes. This is really about copyrights.

Just as in the FDA situation, courts need to be strong and hold their institutional own. More later.

I have aged. I have been listening to the last Names Council call. You can listen to it too, here. I can't seem to tear myself away. It seems as if Christopher Wilkinson saw my last post -- he muttered something about hoping the casual comment he was about to make would not be "blogged all over the world." Thomas Roessler pointed out that an mp3 recording of the call would be made available. But, rest assured, I am not blogging Mr. Wilkinson's remarks.

I am, however, troubled by the overall confusion that appears to reign at this moment with respect to what this PDP is designed to do.

If registries don't need to ask permission before acting to introduce something that isn't a registry service, and let's assume that the SiteFinder service was not a registry service, then how would this PDP apply to such introductions?

What's the relationship of all this to a consensus policy? If this is a consensus policy process, then if the registries resist the policy, it must mean that consensus will, in the end, not be documented. A mere vote of the GNSO won't do it. The objection of the registries, if they do object, will be eminently reasonable and not designed to harm anyone else -- so it will block consensus. If anyone's an "impacted party," they are. A statement during this call that no one constituency has any more "rights" than another has no application to the consensus process -- which attempts to listen to particularly affected parties. If this isn't a consensus process, then why would registries adhere to the output?

What's the scope of the process that this PDP will guide? Who will decide what steps by registries have to enter into the stream of decisions to be made by ICANN?

I'm still listening. I'm getting older by the minute. I'm confused. If this is internet governance, we need some better governors.

The New York Times is reporting that the RIAA is starting another round of lawsuits this week. RIAA's president, Cary Sherman, told the Times that "People who engage in illegal file-sharing should be aware, whether or not they hear about it this month, that doesn't mean the enforcement program has been reduced in any way. If anything it will be increased.''

Here's my view about this. The RIAA is trying to be careful to sue only downloaders of significant numbers of songs. What these downloaders are doing is clearly illegal. And to the extent these suits alert more people to the existence of copyright law, that's a fine thing. These suits are well-founded and legitimate. The DMCA allows the subpoena process that the RIAA is using, and I don't see that process as a tremendous problem (I'm aware this is a heretical view). The RIAA is now warning people of its proposed actions, which helps.

On the other hand: there is still an enormous amount of resentment out there among the younger set about the expense of music. Its price doesn't seem to match what it's worth to millions of consumers, and the fact that expensive CDs will be copy-protected only adds to the upset. There's no particular reason not to have price competition as between major labels, and Universal's suggestion of a couple of months ago that it would lower its prices was very welcome. (Universal quickly ran into an MSRP issue with retailers, but we trust that will be straightened out eventually.)

The continued misfit between what the public wants and what the labels want seems significant to me. (Enormous exception: cheap sources of downloadable music that can be easily burned onto portable media.) Let's choose a product other than music -- say, bicycles. If all bicycle manufacturers said all bicycle purchasers have to buy a particular form of bicycle, and that no bicycle can be loaned to a friend, we'd be upset -- and some black-market bicycle makers would show up with cheaper goods that consumers liked. What's so special about songs? Why do they get such special treatment? It must be true that all law is becoming intellectual property law -- it's like the growth of Chinatown. It's taking over. Little Italy, seen as a land of competition, choices, and value (take this leap of faith with me) is shrinking. We're left with shards of rights, compliant devices, and expensive tunes.

So: I'm all for the lawsuits, that's fine, but you can't build a marketplace through litigation. Just as you can't demand that you come from a happy family, and make that true by fiat, you can't create loyalty to a product or a service by suing some of your customers.

Judge Posner of the Seventh Circuit has issued a brief, plain decision here. I don't know him, but reading the opinion you can almost hear the irritation in his voice.

It appears that a database designer had municipalities plug in information about real estate properties into the designer's database. The compilation of data is likely copyrightable (because of the categories chosen by the designer), but the designer is trying to use that compilation copyright (and the contracts it has signed with the municipalities) to block anyone from gaining access to the admittedly public domain data contained in the database -- data that wasn't even collected by the database designer. There's no other way to get this data.

Posner deftly (and very quickly indeed -- pay attention, law reviews) dismisses each claim brought by the database designer:

From the standpoint of copyright law all that matters is that the process of extracting the raw data from the database does not involve copying Market Drive, or creating, as AT mysteriously asserts, a derivative work; all that is sought is raw data, data created not by AT but by the assessors, data that are in the public domain.

No infringement here. And even if the raw data were inextricably intertwined with the database design, or compilation of categories,

if the only way WIREdata could obtain public-domain data about properties in southeastern Wisconsin would be by copying the data in the municipalities’ databases as embedded in Market Drive, so that it would be copying the compilation and not just the compiled data only because the data and the format in which they were organized could not be disentangled, it would be privileged to make such a copy, and likewise the municipalities. For the only purpose of the copying would be to extract noncopyrighted material, and not to go into competition with AT by selling copies of Market Drive.

And, finally, a nice discussion of a not-frequently-used doctrine: copyright misuse. As Posner puts it, "To try by contract or otherwise to prevent the municipalities from revealing their own data, especially when, as we have seen, the complete data are unavailable anywhere else, might constitute copyright misuse."

The argument for applying copyright misuse beyond the bounds of antitrust, besides the fact that confined to antitrust the doctrine would be redundant, is that for a copyright owner to use an infringement suit to obtain property protection, here in data, that copyright law clearly does not confer, hoping to force a settlement or even achieve an outright victory over an opponent that may lack the resources or the legal sophistication to resist effectively, is an abuse of process.

Posner doesn't even need to get to that claim (not that the somewhat hapless data seeker made it), because he's already gotten rid of the claims presented. He finishes off by pointing out that sui generis database protection isn't relevant (even if we had such a law), because the designer didn't gather the data, and there's no possible breach of contract claim -- because the entity seeking access to the data isn't a party to any agreement with the designer.

A victory for rationality. And a warning to those who would use copyright claims to convert otherwise freely-available material into private property.