The FTC yesterday issued its proposed rule on email that contains "sexually oriented material."  The complexity of the scheme is mind-boggling, and I'm not sure how an emailer would know that his/her/its message is subject to the rule.

Stay with me here.  As USA TODAY reports,

Unsolicited pornography will have to bear a label reading "SEXUALLY-EXPLICIT-CONTENT:" in the subject line and the messages themselves will not be allowed to contain graphic material, the FTC said.

Sexually oriented material is defined by the CAN SPAM Act to be "any material that depicts sexually explicit conduct (as that term is defined in section 2256 of title 18, United States Code), unless the depiction constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters." 

The Title 18 definition includes "simulation" of various acts.  In a footnote, the FTC says that "[a]lthough the definition of "sexually oriented material" refers to "sexually explicit conduct," the Commission proposes substituting the word "content" for the word "conduct" in the Proposed Mark because the substance of an e-mail message is more accurately defined by use of the word "content."

So a message that "contains" a description of sexually explicit conduct is covered by the Rule, unless this description is a small part of the message, and has to bear the Proposed Mark.  What about messages that advertise related products or movies?  They don't "depict sexually explicit conduct," so don't have to be labeled, it seems.  What about messages that describe simulated sexually explicit conduct?  Do they need to be labeled?

More confusingly, isn't all of this a form of forced speech?  The labeled messages, once you decide to open them, can't contain any "sexually oriented material."  Instead, they can only include the phrase "SEXUALLY-EXPLICIT CONTENT" in some large font, plus opt out information and a mechanism for accessing the sexually oriented material.  Very boring messages.  Can this scheme possibly be constitutional?  And why would a message that only contains a link to the material be subject to the Rule in the first place?

What's additionally bothersome about all this is that the unsolicited commercial email camp made sure that it would never be subject to a labeling rule.  The CAN-SPAM Act says that

(a) IN GENERAL.—The Commission may issue regulations to implement the provisions of this Act . . .

(b) LIMITATION.—Subsection (a) may not be construed to authorize the Commission to establish a requirement pursuant to section 5(a) to include any specific words, characters, marks, or labels in a commercial electronic mail message, or to include the identification required by section 5(a)(5)(A) in any particular part of such a mail message (such as the subject line or body).

So that portion of the industry can't effectively be filtered out, even though it is probably much easier for a sender to know when it's sending an unsolicited commercial email than it is to know that it's sending "sexually oriented material."  Not that any labeling requirement makes legal sense, of course.

The USA TODAY story ends with a startlingly candid discussion with an FTC spokesperson:

Hile said the agency is especially interested to hear whether the measure will encounter any technical hurdles. Free-speech arguments will carry less weight as the agency has been directed by Congress to develop the labels, he said.

"We don't have a whole lot of discretion in this," Hile said. "I guess we can't prevent commenters from saying, 'What a stupid idea,' or 'It violates the Constitution' or whatever, but we can't do anything with that."

Or whatever.

At John Palfrey's suggestion, I've started using the h2o rotisserie system for my cyberlaw class. Tonight the first posts are available for the class to read -- not the public, so I can't link to what the class has said. I also spent much of the day interviewing students for a fellowship program.  Here's my report.

It seems clear to me that large lecture classes are very good for conveying generalized information and preparing for the bar.  They're good for talking about legal reasoning.  They're good for letting you sense the mood of the room about a particular topic.  But they're not good for individual participation, really, because they're so inefficient.  Everyone has to listen to one-at-a-time comments (or the lecturer).  You can't take in more.  Your inner dialogue is always running -- "boy, that's a weird thing to say," or "huh, interesting," or "what's next, let's move on" -- but if you actually started to murmur all this you'd destroy the class.  Terribly inefficient in terms of communications.  Very few channels of real conversations.

Threads of posts may have some benefits along these lines.  You can mutter (constructively, within rules of posting etiquette) and add to what's going on.  You can have several simultaneous conversations about the subject.  You can hear an individual more clearly, without always being focused on whoever is at the front of the room.  But there are also downsides -- if you relied on posted threads for a law school class, it would be a hit-or-miss form of learning.  It's hard to get a sense of the room.  

In the interview sessions today, I was reminded yet again of how much you learn about someone and how much you can (perhaps) teach them when you talk to them one-on-one.  The sense of the room in this setting is the magical third entity created in a conversation between two people -- the shared channel, which can feel almost tangible.  But it doesn't scale -- it takes a lot to have faculty members sit and talk to a single student.  It doesn't happen frequently.

So perhaps a good new model course would be a combination of lecture, thread, and tutorial.  Or maybe just thread and tutorial.  Skip the lecture.  You could meet with the class as a whole a few times during the semester, providing themes and suggested readings; prompt active threaded/rated discussions; and meet personally twice with each student for an hour or so.  It's work for the teacher, but it's more of a 21st century kind of learning (combined with ancient tutorial methods).  Post modern law school life.   

I've been a slacker as a blogger.  But I'm back!  I've decided what the beginning of a cyberlaw course is:  some technology, not enough for some and too much for others.  I've asked the class to discuss whether lawyers should have to learn about technology.  Maybe some of them will comment on this blog.

My new absorption is to learn about VoIP.  I don't understand how a router can tell whether a particular communication is a "telephone call" or an email.  As far as I know, the public internet wasn't designed to make sure that there aren't transmission delays.  But humans get very antsy when there's any delay in sound on a phone call.

So VoIP packets have to get priority, somehow.  How does this work?  Does IPv6 provide more information fields so that a router can give priority to a packet that's addressed in a particular way?  Is this why the FCC is looking for comments on IPv6?  Be patient with me, I'm learning.

The FBI wants VoIP to be classified as a telecommunications service, so that the FCC can regulate to ensure back doors to these communications (CALEA-like).  But I bet there are many ways to set up VoIP calls, some more elaborate than others, and it does seem that the FCC is not interested in having some elaborate CALEA mandate for every single one of these services.

And how would CALEA work for all IP calls?  How could you ensure that the back door was always there, without mandating that special routers and special addresses were always used by your citizens?  Wouldn't that amount to creating a new internet?

Yours in VoIP, Susan

David Pogue's story in Thursday's Circuits about the Apple GarageBand software got my attention.  Mr. Pogue is a musician, a pianist with a lot of history in musical theater, and his article is a hymn to the possibilities of GarageBand:

For $100. . ., Apple will sell you a four-octave, touch-sensitive MIDI keyboard that produces no sound of its own. But when plugged into GarageBand, its plastic keys trigger (from the Mac's speakers) the sound of a $50,000 Yamaha grand piano, an orchestra full of strings, the brassy sting of rock-hall trumpets, or any of 185 other sampled instrument sound variations.

At this point, GarageBand is a 64-track digital tape recorder. The program can even count you in with clicks - the software equivalent of, "And-a one! And-a two! And-a three! And-a four!" - and provide a metronome as you play.

I can hear his excitement.  This is neat!  This makes it possible for everyone to be a composer/arranger/producer!  Boy, this is going to be fun.  And, in fact, he goes on with an enthusiastic "this is neat" set of paragraphs:

In the "American Idol" era, it's clear that commercial talent, if not great musical talent, is always out there, untapped and undiscovered. How can a gifted singer or talented play-by-ear instrumentalist reach what could be a grateful audience? Not by mailing out demo tapes recorded with the church accompanist, that's for sure.

It won't be long before the GarageBand creations of no-name singers and players start popping up on Web sites - indeed, it won't be long before Web sites start popping up just to accommodate them - bypassing the talent scouts and gatekeepers of the American recording industry. GarageBand and the Internet give tomorrow's stars their own democratic recording and distribution channels.

...[W]hen you consider both the fledgling state of the 1.0 version of this program and the immense musical and commercial forces it could one day unleash, you might conclude that there is, after all, an i-name that might have suited this remarkable software: iPotential.

Mr. Pogue is excited, and he is convinced that this software is going to change the musical world.  It's got a low pricepoint, it's usable by regular people, and it's flexible (though too focused on pop sounds -- Mr. Pogue wishes for a solo violin once in a while).  I'm with him.  I get excited about this stuff too, and I truly believe (I believe!) making these tools available removes the mystery and perceived expense of making your own music.  I can imagine zillions of arrangements and magical new tunes being released into the unsuspecting cybersphere, to be listened to and shared by everyone.  Go, Apple!

So tools are emerging that let us manipulate all kinds of content.  We can carry video around with us, make it ourselves, share it.  We can do almost anything with music.  We can take pictures, morph pictures, phone pictures; watch television on our phones, watch ourselves on our phones, download scenes of other people talking on their phones, walk down the street talking on the phone and sending pictures.  Complete flexibility.

But there were two (maybe three) stories in today's paper that make this flexibility seem like jangling, meaningless chatter.  One was about Wal-Mart locking in employees over night:

For more than 15 years, Wal-Mart Stores Inc., the world's largest retailer, has locked in overnight employees at some of its Wal-Mart and Sam's Club stores. It is a policy that many employees say has created disconcerting situations, such as when a worker in Indiana suffered a heart attack, when hurricanes hit in Florida and when workers' wives have gone into labor.

The other was about a woman who has stayed on the outskirts of the job market for thirty years, working hard but never being promoted, always falling into problems that are caused by her other problems.  She loses her teeth because she's poor, and because she has no teeth she doesn't advance.  She moves from place to place to find work, and because of these moves her disabled daughter can't make any progress.  She just can't seem to get a break.  When social workers get together to try to figure out how to help her take care of her daughter, the one thing they don't consider is calling her employer to ask that she be put on a regular shift:

She asked a supervisor and got brushed off, but nobody else -- not the school principal, not the doctor, not the myriad agencies she contacted -- nobody in the profession of helping thought to pick up the phone and appeal to the factory manager or the foreman or anybody else in authority at her workplace.

Indeed, this solemn regard for the employer as untouchable and beyond the realm of persuasion unless in violation of the law permeates the culture of American antipoverty efforts, with only a few exceptions. . . . Wages and hours are set by the marketplace, and you cannot expect magnanimity from the marketplace. It is the final arbiter from which there is no appeal.

Putting these two strands together makes you ask what new tools could emerge online that would actually affect the lives of people in Vermont or Maine that can't make enough money to move through life comfortably.  They're isolated -- they're in places without real jobs -- but they have phone lines.  They don't care too much about morphing video or scoring a demo tape (maybe they do).  They need actual jobs.  What does this cyberlife do for them?

Finally, the third story, in Adam Liptak's review today of three books about the AOL/Time Warner merger.  His characterization of Kara Swisher captures the jangling sound I'm hearing this morning:

Her book sometimes reads like comments from the dais [at an internet business conference]. ''I am still a believer,'' she writes. ''In the wake of the crash, true faith in the eventual dominance of the Internet is not an easy thing to admit to. In fact, largely because of this one disastrous deal, saying you believe in the Internet as a revolutionary medium is a bit like admitting to a capital crime.''

. . . [T]he title ["There Must be a Pony In Here Somewhere"] captures something of Swisher's own attitude. She remains, she says over and over, thoroughly optimistic about the transformative power of the Internet.

    

New machines for aiding classroom teaching.  First -- for or against wireless? I'm for, with some groundrules.  Is there a switch you can pull on a classroom wall when you don't want wireless?  If there isn't, we should invent one.

Second -- how about a randomizer for calling on people?  That the professor could use to take notes about what happened?

Third -- how about a randomizer that the class could use for calling on other people in the class?

Fourth -- how about a group visualization tool that would show how a randomly generated group dealt with an issue? so the classroom could be in constant town meeting mode? yes, you could vote on how entertaining the professor was.

Just some thoughts.  Tomorrow:  ICANN's stld RFP.

There's a certain amount of kerfuddle/foofarah going on about Adobe's decision (in consultation with the Treasury) not to permit copying of currency. Is this agreement a good, working example of the accountable net (good private sector action not to "connect" with something that probably is illegal) or is it privatized government by parties who want continued government contract work and will easily knuckle under?

We could see this action as similar to Yahoo!'s not allowing people to sell lock-picks through Yahoo! stores. Lock-picks could be used for perfectly legal and even artistic purposes but the risk that they'll be used for illegal house-breaking purposes is great.

But, then again, I see the Yahoo! action as more a part of the accountable internet than the Adobe action.  Yahoo! really does connect to or facilitate the stores it hosts.  By contrast, Adobe has no real relationship to linking or filtering -- it's more like copiers intentionally not being good enough to make convincing copies of money.

So, on reflection, I see the Adobe action as kowtowing. Not being accountable, just being limiting.  A picture of a dollar is just bits, and there have been artists who have legitimately thought of and produced copies of currency as art.   Adobe's step is much more like a broadcast flag sort of attempt -- make it illegal to copy particular bits without authorization.

The problem is that the unintended consequences of Adobe's action may be great -- this may be the trimtab for copyright interests.  After all it's the PASSING of a bill to pay for something (or making available to huge numbers of people of a copyrighted work) that is illegal. The mere copying shouldn't be

I've been working on my cyberlaw syllabus over the last week, adding in all the things I want to read with my students.  (There will be a huge supplement to the casebook.)  Here's the challenge with which I need help:  cyberlaw is usually taught as a mish-mosh of modules -- a drop of privacy, a smattering of trademark, a heh-heh at the Barlow manifesto, a moment of copyright (and, in my case, a big dollop of the broadcast flag/analog hole debate), and some bemusement at internet governance.

But maybe the real subject is not the application of terrestrial law to the internet.  Maybe that's not even interesting.  Maybe we need to study what's emerging online and how or whether it consists of sets of rules that individuals and ISPs and corporations and governments are following.  But how do I reveal that?  How do we find it in a law school classroom?  What's on the exam (a frequent question I get)? 

Send me samples of what a real cyberlaw course should cover.  Maybe I should drop all this cybersquatting stuff and the old funny historical cases (and even the new funny cases), much as I enjoy them.  Maybe we should spend the whole term on ICANN and the broadcast flag and the CDT v. Pappert case. 

Let me know.  This is an authentic plea for commentary.

There's a great fight going on right now in Philadelphia. If you haven't seen the briefs in CDT v. Pappert, go take a look.

The case is about a Pennsylvania statute that mandates that Pennsylvania ISPs remove access to sites that the AG believes contain child pornography.  Now, child pornography is abhorrent and any ISP will cooperate in taking down such sites that it is hosting. But the problem is that in complying with the statute with respect to sites the ISPs don't themselves host, ISPs are (rationally) using either IP blocking ("null routing") or "domain poisoning" techniques, both of which (particularly the IP number blocking) result in rendering inaccessible millions of perfectly legal sites.

From CDT's/ACLU's opening brief: 

The research reveals that of the almost 30 million web sites analyzed, over 90% share an IP address with at least one other web site, over 75% share with fifty other web sites, and almost 50% share with over five hundred other web sites. . . .

The importance of this case cannot be overstated. [T]his case raises grave First Amendment implications for the viability of the Internet as a “vast democratic for[um],” where anyone can be a publisher and vast libraries of information are available at the touch of a button. . . In this case, the Attorney General in one state directed ISP blocking orders at just a few hundred illegal web sites – and as a result more than a thousand times more legal sites were blocked. Statistically, for each illegal web site targeted, more than one thousand lawful sites were blocked. If this law were duplicated in fifty states and vigorously enforced by even a few state officials, the Internet – a precious resource that has become a vital medium for exercising First Amendment rights – would be severely compromised. The Pennsylvania Statute sets a dangerous precedent, and it is critical to the future of the Internet that it be struck down.

One of my favorite moments in the pleadings comes from this portion of the AG's brief:

A URL is neither a person, nor a real forum, nor a limited commodity. It is a little string of letters and numbers that acts as a superficial label. URLs are infinite in quantity. Even complete retirement of one will not diminish speech. Speech can always find another URL, and probably pretty close to the out-of-commission string. The new URL will be in the same cyber-space, accessible in the same physical places, as the retired URL. It can relate to the same IP address, which is the true computer address. Disablement of an ISP’s customers’ access to a particular URL for even an indefinite time does not implicate First Amendment rights

 

To which CDT replied:

 

[T]the Attorney General suggests that the state can disable URLs perpetually because they are not speech, and because they are limitless and fungible. But as Plaintiffs explained in their opening brief, under current case law URLs, standing alone, may in fact be protected speech. . . .;

And they are certainly not fungible. Users of the Internet often access web sites by "bookmarking" their URLs or remembering them. The fact that Amazon.com could provide access to its site through the substitute address "www.creamcheese.com" would hardly make the blockage of "www.amazon.com" de minimis for either the site owner or users. URLs often constitute valuable intellectual property that parties fight hard over in  rademark litigation. Nor are URLs unlimited. While as a theoretical matter it may seem that way, as a practical matter useful URLs are scarce. Indeed, the lack of useful URLs has directly led to pressure over the past few years to add a new "top level domain" (TLD) such as ".biz" to supplement ".com" and ".net."

In any event, Plaintiffs’ claim under Near and Vance does not turn on whether URLs are speech, are fungible, or are in short supply. Under those cases, the state simply cannot prevent speech from ever occurring at a particular location on the Internet because at one time it displayed illegal materials. . . . Furthermore, the Attorney General does not even address the fact that some Informal Notices have explicitly directed that access to an IP address be disabled. IP addresses are valuable and are currently in short supply (especially in certain parts of the world).

These overblocked sites are places. Their addresses may look like strings of meaningless text to the AG. But they are places nonetheless, and a prior restraint with respect to their visibility would be wrong. The law just hasn't caught up with the realities of online life. Yes, child porn is wrong, and that's what makes this a tough case to make a lot of noise about. But the soccer sites and community areas wrongly blocked by ISPs struggling to comply with this negotiated law (take a look at the history of the law's creation) deserve to be seen -- and we don't want more laws like this popping up in the US.

It's a fascinating and (on the CDT side) well-briefed case.  Wish I could be there.

For the last twenty years, people have assumed that "physical and social disorder in a neighborhood lead to increased crime."  This is the "broken windows" theory.

It turns out not to be true.  Improving order by fixing windows may or may not reduce crime.

But a professor of human behavior and development at the Harvard School of Public Health named Dr. Felton Earls has figured out that what he calls "collective efficacy" will have an effect.  The Times ran a story about him and his empirical work debunking the "broken windows" theory yesterday:

"If you got a crew to clean up the mess," Dr. Earls said, "it would last for two weeks and go back to where it was. The point of intervention is not to clean up the neighborhood, but to work on its collective efficacy.  If you organized a community meeting in a local church or school, it's a chance for people to meet and solve problems."

"If one of the ideas that comes out of the meeting is for them to clean up the graffiti in the neighborhood, the benefit will be much longer lasting, and will probably impact the development of the kids in that area.  But it would be based on this community action -- not on a work crew coming in from the outside."

Dr. Earls is also expecting to show that where you grow up is very important to your development -- he thinks that genetics plays a minor role at best.  As far as policy goes:

Dr. Earls said that rather than focusing on arresting squeegee men and graffiti scrawlers, local governments should support the development of cooperative efforts in low-income neighborhoods by encouraging neighbors to meet and work togehter.

The link to the accountable net is clear:  what we need are tools that help peers (both individuals and ISPs) work together cooperatively to combat the emergence of security/spam/identity bad neighborhoods on their networks.  Unilateral or top-down decisions to "clean up" neighborhoods may not have long-term effects.

Note Earthlink's snide response to AOL's announcement that it's including spyware tools in its next release to consumers:

Jerry Grasso, a spokesman for Earthlink, a competitor to AOL, said the company welcomed the initiative. "We applaud any Internet service provider that's trying to help their customers better protect their Internet experience," he said. "We, of course, did it last quarter."

heheh.

 

 

The New York Times ran an op-ed the other day by Brian Greene, author of The Elegant Universe.

Today's scientists seeking to combine quantum mechanics with Einstein's theory of gravity (the general theory of relativity) are convinced that we are on the verge of another major upheaval, one that will pinpoint the more elemental concepts from which time and space emerge. Many believe this will involve a radically new formulation of natural law in which scientists will be compelled to trade the space-time matrix within which they have worked for centuries for a more basic "realm" that is itself devoid of time and space.

This is such a perplexing idea that grasping it poses a substantial challenge, even for leading researchers. Broadly speaking, scientists envision that there will be no mention of time and space in the basic equations of the sought-for framework. And yet — just as clear, liquid water emerges from particular combinations of an enormous number of H20 molecules — time and space as we know them would emerge from particular combinations of some more basic, though still unidentified, entities. Time and space themselves, though, would be rendered secondary, derivative features, that emerge only in suitable conditions (in the aftermath of the Big Bang, for example). As outrageous as it sounds, to many researchers, including me, such a departure of time and space from the ultimate laws of the universe seems inevitable.

I really liked The Elegant Universe -- and particularly its focus on string theory.  Time is relative; there's a difference between intuitive time that we rely on to measure our days, and physicist time, which accepts that time depends on where you're standing.  And maybe strings are the most elemental particles around.

But, wherever we're standing, we're probably reading end-of-the-year lists. 

"Only connect," says E.M. Forster. But what if there are too many connections to comprehend? Sync tells us that everything connects to everything else, and that there is sync in chaos as well as in tides. It's a tremendously exciting book, and reading it late at night gives you the heady sense that you're just about to understand the universe completely.

But the New York Times reminds us that people collect mountains of paper (and can sometimes be buried by these mountains) in part because they believe they see connections that are crucial:

Pathological hoarding can affect people of all ages, and it seems to be related to obsessive-compulsive disorder, added Dr. Frost, who has researched the problem for a decade and recently received a grant to develop a model treatment to be tested on about 40 subjects at the Institute of Living in Hartford and at Boston University.

There are three facets to the problem, he said: enormous emotional difficulty throwing things away; compulsive acquisition — sometimes by buying things, but often by picking them up for free — and a high level of disorganization and clutter.

Many of the people afflicted seem to be unusually intelligent, he said. "They see more connections between things, which leads them to value those things much more than the rest of us do. "

But today I'm going to assert that seeing connections is worth the risk, and leads to more than messy living rooms. I was fascinated by Sync's account of Brian Josephson's absorption with parapsychology.  (Josephson won a Nobel Prize in 1973 for his work on superconductivity, but hasn't been doing mainstream physics for the last 30 years.)

It has always seemed to me (I'm going out on a limb here) that the brain can communicate, can joggle other brains, without speech or gesture, and that scientists just haven't figured out why. We have a long way to go in understanding what our brains can do; we may just be stewards of memes and coordination networks that are far beyond our little comprehension.  Maybe by continuing to see connections, and by believing that there's a heartbeat to the universe, we are coming very slightly closer to understanding our own capacities.

On the other hand, it may be that I just haven't been getting enough sleep, and Josephson is a nutty Nobel who has strayed.  Let's check back in 20 years and see.

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.