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.

The Names Council met last week and will be meeting again next week to discuss a PDP for how ICANN should react to registry "proposals" (the new buzzword -- an attempt to ensure that actions that do not necessarily add up to the introduction of a new "Registry Service" will nevertheless be subject to ICANN approval).

Midway through last week's call (here's a link for listening), at about 1:09, Christopher Wilkinson cleared his throat and balefully said the following (paraphrasing -- listen to the call to get the exact text):

My main point is to encourage the GNSO Council to avoid ideological terminology. We are dealing with a situation currently where many governments need to know where regulatory authority over the Internet lies. Currently it lies in the ICANN/GAC public/private partnership. It is not productive to the present debate to deny that ICANN holds regulatory power. It has to be there somewhere. It’s through ICANN that the Council is acting. [A registry representative had said that ICANN is not a regulator.] . . . . It is not helpful to tell the world that ICANN has no regulatory authority. If that’s the message from the private sector, then many governments will say that the existing public/private partnership is not enough.

This is an important moment, and we should pay attention to Mr. Wilkinson's message. His point is that someone must be in charge. Someone must hold the reins; someone must be telling the registries what to do, even if their contracts with ICANN don't require any prior permission in order to act. Regulatory power has to be there somewhere, Mr. Wilkinson is saying. And if ICANN doesn't show that it has this power, governments will Have To Step In.

This is in the context of the assertion by ICANN staff (listen to the call carefully) that it is not appropriate to allow registries to act without permission.

What's remarkable about this moment is that the hot potato of DNS standard-setting is still up in the air. The US government didn't want to appear to be in charge, and wanted to convince European governments that it wasn't in charge, and so it created (or called for the creation of) ICANN. ICANN was designed to keep other governments at bay. ICANN has, however, no particular delegated power beyond that accorded to it by the contracts it has signed with registries and registrars. In fact, it can't have more power than that, because if it pretends to be a regulatory agency it should be complying with the APA -- and if it pretends to be a regulator its private nature probably violates US law in a number of respects. Right now, though, it needs to pretend to be a regulator just enough to keep other governments happy (according to Mr. Wilkinson). But it's in a bind: it really isn't a regulator, and there's no reason for registries to agree to have their every "significant" (whatever that means) action approved by ICANN.

Mr. Wilkinson's sentiment -- regulatory power must be there somewhere -- also points to another sharp distinction that isn't being understood at the moment: At the moment, no one governs the Internet. ICANN isn't about Internet governance (whatever that means). ICANN worries about registries and number allocation. That's it. If the world wants to make rules about content and identity and intellectual property and cybercrime, the world will have to find another vessel. ICANN cannot bear that burden.

Wired has an interesting article today about Habitat, a project of the MIT Human Connectedness lab.

The system seems pretty limited. In essence, it provides verrrry slooow presence detection in a larger sense -- does your coffee table have a cup on it? or a book? or a cigarette? or a pen? If all of this means something to someone who is close to you, if these objects have deeper, familiar meaning, then you can have an always-on sense of how things are going with the other person. The Wired article contrasts this peaceful asynchronous awareness with the interruption of a phone call.

Now, I'm sympathetic to the time zone/interruption aspects of phone calls. And I'm constantly running up against the limitations of text as a presence detection medium. The Yahoo! Messenger and AIM services convey very little beyond a happy face ("I'm Available") and perhaps a line of text ("On Cell Phone"). That's not very reassuring to someone who is really interested in knowing how you are.

But the presence of a coffee cup -- I'm just not sure. It doesn't tell you very much. It has so much indirection in it as a symbol. It could mean that you just woke up, or that you're having trouble getting through the day, or that you like the design of the cup. It could mean that you were hoping to have someone over for coffee but the person hasn't shown up yet. It's lovely, but so limited. One can imagine the two in-touch people calling up -- interrupting -- just to say "Just what did you mean by having that coffee cup on the table?"

Surely the combined forces of techonologists and social scientists can come up with richer, more interactive, but still asynchronous indications of mood/well-being. We've got the coffee cup, we've got the smiley-face -- but maybe we need an avatar who has more meaningful asynchronous action-oriented messages for the rest of the world.

The late lamented media critic Neil Postman urged us not to take in any new information after 8pm. This allows us both to think about what we have heard during waking hours and to go to sleep eventually. And keeps us from amusing ourselves to death.

I was fascinated by this recent New Yorker article. It's about a guy who is slowly and carefully reading every word of every New York Times article. He's given up on the sports section. But he's still far behind:

"Tobin reads the Times every day, struggling to find the two and a half hours necessary to get through it. He keeps stacks of newspapers in the front seat of his car and in spare cupboards, in case he finds himself without a paper in hand.

Tobin is behind in his Times reading. One year, five months, and four days behind, which places him in late June, 2002. In his daily paper, the United States has not yet invaded Iraq, the D.C. sniper hasn’t fired a shot, and Gray Davis is secure in Sacramento."

Mr. Tobin is paying attention. He's doing one thing at a time. It takes two and a half hours for him to read the paper, and if he doesn't have that much time he simply allows himself to fall behind. He's got time. In fact, he doesn't even really want to know the current news; he doesn't want to spoil the suspense of the stories he's following.

But he does read the paper -- very carefully. This is reminiscent of the recent Times coverage of the Malvo jury selection, in which a high school civics teacher (and potential juror) said (in essence), "I read the paper 364 days a year." Why only 364? Because the judge told the jurors not to read the paper that day. "I'm a human being," the civics teacher said. "I read the newspaper." The civics teacher had already formed an opinion about Malvo's guilt, so he was excused from serving. And the judge told him he could pick up a paper on the way home.

Take a look at this page. Or this one. How will Mr. Tobin keep up? How will human beings (like the civics teacher) possibly absorb all this? And how can we stop taking in any new information after 8pm?

Perhaps the answer is that the global brain is paying attention for us. We're all reading newspapers and reading blogs, and the line between newspaper and blog keeps getting blurrier. With any luck, we're creating higher levels of useful information (meta information, information about information) and getting better informed.

But some part of me is jealous of Mr. Tobin, and his slow and careful progress through yellowed back issues of the Times.

The CAN-SPAM bill has passed the House, and will likely be signed into law by the President soon. I predict that the bill will someday be viewed as something similar to the Anticybersquatting Consumer Protection Act -- a piece of nationalistic legislation that provides little real protection against offshore bad actors. But it does not, at least, do very much harm to the interests of would-be commercial email senders -- it allows anyone to send a commercial message that isn't misleading, as long as an opt out and physical address (?) is provided for the sender.

Spam is clearly a big problem, but it's highly unlikely that this bill will fix things. A great deal of spam comes from people who aren't subject to US laws. A second prediction: "trusted" email systems will become all the rage, and we'll soon be conversing only with those we choose as conversational partners. Maybe that's a fine solution. Maybe the internet shouldn't favor unsolicited, anonymous communications. And maybe digital certificates will finally be worth something to individuals.

There is a bill sitting on the desk of the Governor of Ohio awaiting signature. It is not very long:

1) "Audiovisual recording function" means the capability of a device to record or transmit a motion picture or any part of a motion picture by means of any technology existing on, or developed after, the effective date
of this section.

(2) "Facility" includes all retail establishments and movie theaters.

(B) No person, without the written consent of the owner or lessee of the facility and of the licensor of the motion picture, shall knowingly operate an audiovisual recording function of a device in a facility in which a motion picture is being shown.

(C) Whoever violates division (B) of this section is guilty of motion picture piracy, a misdemeanor of the first degree on the first offense and a felony of the fifth degree on each subsequent offense.

(D) This section does not prohibit or restrict a lawfully authorized investigative, law enforcement, protective, or intelligence gathering employee or agent of the government of this state or a political subdivision of this state, or of the federal government, when acting in an official capacity, from operating an audiovisual recording function of a device in any facility in which a motion picture is being shown.

...

This means that no one can show anyone in a retail store how a VCR works. No one can use a phone that can stream TV or other video images in a store. No one can take a still picture in a store in which a movie is being shown on a TV screen -- without permission. How does this work? Why wouldn't this act be preempted by the Copyright Act? Why is it that we seem to need permission to do everything?

The text must be directed at people pointing cameras towards the screen in movie theaters, but it is drafted so badly and so broadly that it is hard to tell. I suspect that the governor will sign this bill, saying "I'm against piracy."

It looks as if copyright (or "paracopyright") is becoming the broadest set of laws we have.

After wandering around for a while today, I think a good approach to the broadcast flag issue is to compare it to the tobacco jurisdiction wars. I think I will suggest that "if FDA cannot regulate cigarettes, FCC cannot regulate consumer electronics devices." This should be sufficiently incendiary (so to speak).

The argument would be that courts shouldn't defer to agencies' broad/strained construction of their basic statutes where Congress has created a distinct regulatory scheme of its own. In tobacco, the Congressional scheme was called the Alcohol and Drug Abuse Amendments (and several other tobacco-specific pieces of legislation); in the broadcast flag arena, the Congressional scheme is called the Copyright Act. Although (perhaps) Congress may not have rejected proposals to give FCC jurisdiction over copyright protection, that's only because such a request would have been outlandish. But Congress (and the Library of Congress) clearly exercise authority over copyright policy. And I'm sure the FCC has said over the course of the broadcast flag wars that it has no jurisdiction over copyright. The recent Order is an abrupt about-face.

Additionally, the tobacco companies argued that Congress could not have intended to delegate a decision of such economic and political significance to an agency "in so cryptic a fashion." And the Supreme Court found that the FDA's reading of "safety" throughout the FDCA act was extraordinarily strained. Here, similarly, regulating all consumer electronics devices has enormous economical and political consequences for the US -- and the FCC's reading of its statute is contortionist.

The other appealing thing about writing about tobacco and copyright is that both issues have been so heavily and expensively (and elegantly) lawyered. It helps to have the biggest, most influential lobby in town -- if you're the Tobacco Institute, you can get the Court to shut down the FDA, and if you're the MPAA you can get the FCC to jump.

Today, ICANN issued a "Staff Manager's Issue Report on the need for a Predictable Procedure for Changes in the Operation of TLD Registries." ICANN has been worried about how it justifies Board decisions to amend contracts between ICANN and the registries, and has decided to do what it can to create a process. Here are the problems with the Issue Report:

1. Scope. The report suggests that the process will cover "significant actions by TLD registries that, because of their architecture or operation, could affect the operational stability, reliability, security or global interoperability of the DNS, that registry or the Internet." This means that anything a registry does -- even steps that don't involve Registry Services, such as offering value-added services or changing management structure -- could potentially be covered by the GNSO process. The paper notes cryptically that "the unsponsored registry operators have noted the need to account for contractual agreements in the development of the evaluation procedure." That's right -- at the moment, no approval by ICANN is needed or required or appropriate for most actions of a registry that don't amount to the introduction of a new Registry Service. Is ICANN suggesting that it will unilaterally re-do the contracts it has signed with registries? Doesn't it take two sides to amend a contract? How can ICANN establish an "evaluation procedure" for actions that a registry is free to take without evaluation?

A secondary scope issue is that sponsored TLDs have had "delegated" to them the right to introduce new Registry Services without any input whatsoever from ICANN. So even less scope of "evaluation" is appropriate with respect to the sTLDs. Is ICANN proposing to renege on the notion of "sponsorship" it labored so mightily (and over such a painfully long period of time) to create?

2. Getting Bogged Down. It cannot be that ICANN wants to have a process towards a procedure towards a protocol towards a premonition of every sneeze that comes from the general direction of a registry. ICANN will need a staff of hundreds -- ICANN will need to become the FCC. Is this the goal? Can this possibly be the underlying motivation for this particular PDP?

3. Legitimacy. ICANN is not a regulator. No government body has delegated to it any particular authority. ICANN is asserting, however, an "APA" model of ICANN's legitimacy -- that ICANN's Board is a group of wise individuals who can be relied on to listen carefully to comments and make the best central decisions on behalf of the global Internet community.

The problem with the "Administrative Procedure Act" model is that the ability of the Board to listen does not, by itself, give ICANN the right to make decisions or be deferred to by governments, for a very simple reason: No one gave ICANN the power to make rules in the first place. (Indeed, a delegation of regulatory power from DOC to ICANN (which is a private party) would violate the nondelegation doctrine and raise substantial due process concerns.) While it is perfectly true that the Board of Directors of ICANN has the responsibility to act on behalf of ICANN as a corporation, and it is also true that ICANN has established this elaborate "policy development process" in order to gather comments on noticed rules from interested people, the idea of APA-like notice and comment rulemaking depends on a delegation of authority from a responsible body, including clear standards that limit the scope of agency discretion.

Here, there appear to be absolutely no limits on ICANN's discretion to block any particular action desired by a registry. And no one gave ICANN the power to tell any registry what to do -- unless that registry has agreed to do what ICANN asks. Finally, it is very likely that ICANN's actions will be effectively unreviewable. This is therefore an illegitimate assertion of power on ICANN's part, and there is no reason for any registry to accede to it.

The source of ICANN's legitimacy is, and can only be, consensus -- not ad hoc, anti-competitive reactions to the requests of special interest groups.

The ICANN consensus contract asks each potential participant whether they will agree contractually to implement and abide by a future rule, sight unseen, provided that most people support it and those parties substantially affected by the policy do not vigorously oppose it (or their objection is unreasonable).
This contract supports ICANN's legitimacy (and helps in understanding ICANN) because it provides a demonstration that each participant in the ICANN regime has affirmatively agreed to ICANN's jurisdiction for the limited purpose of making global rules with which most affected participants agree to go along. It is intentionally designed to produce only those rules that most people agree should be global -- and very few rules will fall into this category. Everything that is not the subject of a global consensus agreement will be left to local decision-making. Everything that is not prohibited should be permitted.

There is a great thread over at terranova.blogs.com about the conference. And I am very proud indeed of this mention from Richard Bartle:

"Fortunately, the lawyers at the conference did seem to have the "right" opinion (from my point of view) even though most were new to the field and few were actual games-players. I began to take heart during a talk by Yochai Benkler of Yale Law School, who gave a very good overview of the issues (if not any actual solutions). The turning point for me, though, was the talk by Susan Crawford of NYLS. In it, she discussed the notion of identity in virtual worlds, and asked whether people need a "law of identity" to protect these second selves from organisations (eg. VW companies) who can obliterate them at will. She came out against, which I would have stood up and cheered at if it weren't for my British reserve."

Bret Fausett points us to this article about the WSIS plans for a December meeting in Geneva. Attacks on ICANN are coming from several different directions, and the list of concerns includes "cybercrime and protection of intellectual property rights."

My thoughts on this go in several directions, as usual. First, it's not apparent to me that any government can "control" the internet -- and it's even less likely that that control can happen through the DNS. The most that governments will do will be to build walls between nations, requiring their ISPs to point only to approved sites. (China is well on its way to doing this already.) That's not controlling the internet, that's creating different, national internets. Second, control over what it takes to register a domain name won't necessarily provide control over cybercrime or IP -- domain name registrations aren't necessary to run a p2p system, and there are lots of other ways to use networks for copyright infringement, trademark infringement, and fraud that don't involve the DNS at all.

So I'm not sure what the WSIS is getting at, or what it would mean for the ITU to "take over the Internet." Taking it over would mean conditioning access to it, I suppose, which would only push still more communications into black markets (or "darknets"). And I really don't understand how there could be a common vision that will serve everyone's control needs AND provide internet access to developing countries. Finally, what does all of this have to do with ICANN?

ICANN's functions have nothing to do with control needs or internet access, in my view. ICANN is (or ought to be) no more than a web of contracts and a forum for discussion for issues that have to do with the stability of registries and registrars. If ICANN is trying to be more than that, it shouldn't, and it risks angering the ITU. For example, if ICANN tries to come up with some conditioning of access to domain name registrations predicated on "use of the name in connection with noninfringing content only," it will never achieve consensus on such a rule -- and, indeed, the current contracts prohibit ICANN from imposing consensus policies that have to do with the content of sites. If ICANN tries to require ccTLDs to adopt particular whois or registrar schemes, they'll rebel.

We seem to be lurching towards the worst end-state: an ICANN that wants to compete in popularity and in influence with the UN, and an ICANN that wants to have something to say about content on web sites and the publication of identity data. This ICANN will draw attention to itself and make the UN want to "take it over" -- and will make the UN believe that there's something meaningful to take over. Instead, we should have an ICANN of modest goals and achievements, that provides a forum for discussion and a non-governmental arena for standardization of registry technical practices -- and routinely opens up new TLDs of all kinds, as long as they meet minimum standards. Then individual governments can say what they want to to their ISPs and their registry operators.

So 8am on Sunday morning after the games conference found me at the doors of Cardozo, arguing with the security guard about letting me in. It is not easy to get into this building, but I managed it somehow. I went to my office and opened up the CD jewel box for SecondLife. All very exciting, right? And I was delighted to see that SecondLife was giving me a free year's worth of playing.

But it won't work. It keeps crashing. The IBM ThinkPad I bought less than six months ago doesn't have an adequate graphics card for this game (or, probably, any other top-line game). I called IBM and they said there was nothing I could do short of buying a new machine. Sigh.

If this is really the new frontier (and I'm prepared to believe it is), I'll have to break down and get yet another notebook. Research has revealed that the gaming notebooks weigh as much as a bowling ball.

Here's a collection of interviews/quotes about the future of online gaming. It's fascinating stuff. I talked to a couple of my Cardozo colleagues about the conference and they just couldn't take it in. The bit about McDonald's franchises being picketed by avatars particularly got them.

The draft paper I wrote about online identity for the conference is here. All comments welcome.

Suggestions for laptops also welcome.

I have been at the New York Law School/Yale Law School conference on online games and the law. A very experienced British game development guru is quizzing a US Army guy about America's Army -- a free recruiting tool/game. This is a somewhat out-of-body experience for me. "Granted, we're using taxpayer dollars to fund this effort. But because this game is so successful it's saved us money. We've managed to package this game with computer gaming magazines. Cost to the government: nothing. We save a lot through downloads. Our savings is around $14 million dollars." Question: who owns IP rights in this game? We do, sir.

Has the army been looking into games that would teach skills? No, sir. We're not using this as a teaching tool, America's Army. Your first mission is to complete four maps, for example. We're not teaching you how to fire a rifle. You'd have to go to boot camp for that, sir. We're informing, not training.

Later in the morning, I talked privately for ten minutes on camera with the very gifted David R. Johnson (not David C. Johnson, who was also at the conference). NYLS is preparing a time capsule of views about the future of online gaming. David's questions were cogent, but I was completely exhausted and wasn't able to speak very clearly. (This conference is endless, but fascinating much of the time.) If I'd been able to talk, I would have said: more worlds will be walled; people will tend to play themselves. I did manage to say that we manage to ruin every paradise and are incapable of sustaining utopias. So it's very unlikely that we'll do better in online worlds. I also said that it's strange how few of the theory people here actually play games. Fourteen year olds are playing these games. Theory people say "interactive gaming is the most important development since the printing press," but then go on to say that they don't play games online. Someone here whose business is selling virtual game artifacts says "this industry is small enough that everyone is here." So that's nice. A great conference, and bravo to Beth Noveck.

A useful article from the Washington Post. Yes, most arguments on both sides of this issue are overstated. But the frustration and annoyance being felt by Static Control are real.

Note to self: Do not go into a movie theater and point a camcorder at the screen.

Still hoping for someone to leap up and say "FCC had no jurisdiction to enter the flag order" and "this is more like media concentration than do-not-call." I am going to spend a few weeks figuring out the jurisdiction question (how hard can it be? answer: harder than you think), and I'll report back.

In the meantime, a good Washington Post article is making the rounds.

And I'm very much looking forward to the State of Play conference this weekend. I've posted a new draft of my paper here.

If you are, you are not alone. The question is whether this will become a popular issue -- as with media ownership. The likelihood is that it will, but the problem with an uprising is that the FCC order itself is remarkably slippery. FCC can respond: "we're not hurting consumers or innovation -- all we have done is create an interim process, and we're all for new content protection (not copy protection!) devices. Bring on your applications! We're here to help!"

It's hard to fight against this, and the anti-flag contingent has to come up with very simple soundbites that get to consumers in the same way hatred of Clear Channel did (probably wrongly) in the media ownership proceeding. Something like: "once you buy your first approved digital TV, you'll have to replace everything in your house. And, gradually, you'll have to get permission to do most things you now assume you can do legally."

Tough argument.

The unsponsored registries have released a statement about the new draft Issues Report. You can read it here.

As I've said in the past, my personal view is that the registries should suggest their own process for Registry Services price/specification agreements with ICANN. This process could involve a suggestion by a registry that a particular service is indeed a Registry Service, as that term is defined in the agreement that registry has signed, and a request for agreement to a proposed price (if no specification issues are raised). If ICANN failed to respond to that request within a specified time, the Registry Service price that has been proposed should be added to the agreements and the registry should go ahead with that service. The registries have an interest in clarity and freedom of innovation, and ICANN has an interest in oversight; this process would address both of these sets of concerns. ICANN should be required to keep confidential any information for which such treatment is appropriate.

This new process would require a modest change to the existing registry agreements, but would actually be an implementation of the standards already set by these agreements.

My personal view is that ICANN should reject entirely the idea that there should be a PDP with respect to this contractual issue. This is not "policy" -- this is ICANN's internal process with respect to approving contractual proposals made by registries. If any constituency wants to suggest the creation of a new consensus policy that would be binding on all registries, they are free to do so.

I'm unhappy with what the FCC has done, because it seems to be boundless, unprincipled, and based on irrational assumptions.

Boundless: It covers all content, whether protected by copyright or not. It covers news; it covers public domain material; it covers anything broadcast (including data, including who knows what).

It covers all devices that include a demodulator. This will include PCs, software demodulators, and any other consumer device.

Unprincipled: The FCC doesn't have jurisdiction to enter this order. Here are their arguments:

1. we have ancillary authority over equipment manufacturers because
-- title I mentions "radio communication," and that term is defined broadly to include "facilities, apparatus, and services... incidental to such transmission"
-- but this is about reception, not transmission
-- exercising jurisdiction is reasonably ancillary to our performance of our responsibilities to shepherd the country into the digital age
-- but there's no evidence that transition being held back -- indeed, why are you in such a rush re legacy devices if the transition isn't happening? and no one is holding content back
-- but there's no evidence that we'll see different or more content being broadcast as a result of this rule
-- and why do we favor broadcast over innovation?

2. we don't need an explicit statutory grant because
-- when Congress worried about our broadening jurisdiction they said that in the context of an explicit statute about manufacturers -- and here there isn't one
-- but the Congressional concern is still relevant
-- don't stick us with your statutory interpretation canons about Congress knowing how to grant explicit statutory authority -- that would limit our flexibility
-- but there's a good reason to limit your flexibility here
3. we must act now because
-- the nation now stands at a juncture where such exercise of authority is necessary
-- a circular argument for jurisdiction
-- why protect broadcast above innovation
-- these are narrowly tailored rules
-- this is another circular argument for jurisdiction
-- not in terms of their impact on the interoperability and functionality of machines

This will make a great jurisdiction lawsuit. Was lack of jurisdiction not enough of a reason not to do this?

More about principle: The FCC has established an interim procedure for Table A admission. Maybe I'm just cynical, but it seems obvious that the 5C suite of technologies will be the group that gets in first. The lock-in effects of that suite (and the overreaching license provisions that limit use of any non 5C suite machines) will be enormous.

More about principle: FCC purports to care about privacy, but the rule attached to the order requires that content if copied be bound to a particular device. A unique device. A device with a unique identifier. These sorts of issues usually prompt privacy concerns. Let's not even start on the "personal network" the FCC hopes to define.

And just one more note on principle (there are so many to be made here): FCC says several times that copy protection isn't their goal and that consumers will be free to make copies. In fact, they even changed the name of the proceeding from "copy protection" to "content protection" just to make everyone feel better. But this is so misleading. Once a piece of content is received by a flag-compliant device, it cannot be transmitted to or copied onto or displayed on a non flag-compliant device. Which means: copying is limited, and will require substantial upgrading of devices.

how can FCC possibly believe that they're not making rules that are copyright related?

Irrational assumptions

Yes, digital works can be copied. But that doesn't mean that the wishes of content owners should prevail over device manufacturers or the comments of thousands of people who wrote in to complain. Why does the FCC believe it has a mission to "forestall the development of a problem in the future similar to that currently being experienced by the music industry"? Why assume that the flag will have any such effect, other than to control machines and innovation? In fact, why assume that the flag is anything other than a staging device for later moves to close the analog hole (that'll be some proceeding) and shut down peer to peer networks? The FCC is being shamelessly used by the content industry. It's a bad day for regulators all around.

Looks like the FCC has finessed the important innovation-related issues by setting up an "interim" requirement to use 5C (which will have all the lock-in and interoperability problems predicted) while promising to fix the problems with the Table A process later. A very negative precedent for the future of machines. More later.

ICANN staff has posted a draft report about the issues they think are relevant to a registry services process for approval.

They are trying hard, but I think they are headed in a dangerously wrong direction.

Let's take the thick contracts that the unsponsored registries have now. The unsponsored contract now provides for prior approval for registry services IF they are for a fee (require an addition to App. G) or if they change the specs (for registry-registrar interaction). The contracts also require ICANN not unreasonably to withhold such approval (and to act reasonably promptly).

It could be a win-win for registries to establish an agreement with ICANN that the registry MAY start the clock on
such approvals by giving notice to the staff in some way registries agree on. Obviously, this would only apply to new actions that fall within the definition of REGISTRY SERVICES (and the registry would be agreeing to that coverage by giving the notice). ICANN staff could choose to notify other groups, subject to respecting requests for confidentiality that the registry had made.

ICANN would agree in this new procedural agreement that it could refuse to approve if (1) a price for a new service allows, an end run on the registration fee cap -- particularly if the service is not optional and the price is
way out of line with market value, or (2) the service changes the specification and breaks the Internet -- but (3) only if it acted within 30 days (ICANN would agree that failure to act within 30 days would mean approval).

This would require a small amendment to the contract. But it does not really change the substance of what is
already in the contract. This would give unsponsored registries some certainty -- they'd get prompt responses and
could protect their confidential information.

If ICANN didn't agree with the assertion of confidentiality, it could refuse to approve the service.
Then we'd have a dispute that could be resolved in accordance with the dispute resolution terms in the contract. ICANN would get a clear restatement of its powers, could stop worrying about antitrust (and calling in competition experts, as Twomey is planning to do), and would get early notice of changes.