I support ICANN.  It's better than the alternative for carrying out its very narrow mission:  making sure entries in the root don't conflict, staying on top of changes to the IANA database, and serving as a forum for the creation of consensus policies (within a constrained "picket fence" of topics) for which documented support exists.  Although there has been a "if you're not with us, you're against us" embattled feeling in the air where ICANN is concerned, I do think that the ICANN experiment in self-ordering for global names and numbers continues to be worthwhile, and I want it to succeed. 

But I do have some concerns about ICANN's recently-released Strategic Plan [pdf].  Complete with UN-style document numbering, it's clearly the product of a great deal of work by the staff and by consultants to ICANN.  The only problem is that it's a plan without limiting principles or a clear recognition of ICANN's limited role in the world.

Some specifics:

1.  Staff to double over the coming year; budget to continue to rise by leaps and bounds; new gTLDs and .net to provide revenue stream based on .75 per "transaction" (or "billable event") and slices of new registry services.

2.  Regional offices to open around the world; more meetings to happen, including sub-regional meetings; special funds earmarked for developing nations to be gathered and disbursed.

3.  ICANN to take a central role with respect to security; multilingual efforts to be substantially increased; better PR for ICANN to be provided.

There's a central tension here.  ICANN says, appropriately, that it's not going to handle spam or content issues or anything else.  Its job is to make recommendations to the US Department of Commerce concerning what changes should be made in the root zone file, and to maintain the list of IP addresses that the Regional Internet Registries hand out.  This is a very very limited job. 

The plan set forth in this document, while eminently logically presented, seems far out of proportion to this very limited job, for the following reasons:

a.  Most of ICANN's work could be (should be) done online.  Why have even more meetings?  Why have even more regional presences?

b.  By contract, the scope of ICANN's authority to set consensus policies has been sharply limited.  This plan contains no recognition of this fact.

c.  ICANN has to date made very little progress on items it says it needs more money to accomplish.  But the plan provides no milestones for the use of this additional money. For example, although the plan makes clear that root server security is one of ICANN's top priorities, ICANN has never succeeded in making any progress with these operators (and may never do so).  Same with formal agreements with ccTLDs.  The address space is well taken care of, but that's thanks to the RIRs -- not ICANN.

d.  ICANN claims credit for tasks it has very little to do with.  For example, ICANN points to the successful resolution of billions of name requests.  But that's thanks to private operators, not ICANN.  And ICANN has nothing whatsoever to do with coordination of technical parameters -- it hands that job off to root server operators, the RIRs, and the IETF.  To the extent ICANN seeks funding to "continue" these jobs, they can be done for free.

What ICANN does need is support for the volunteers who work on policy development -- we'd have a better answer to WIPO II if we had better help.  And ICANN does need staff to deal with registry and registrar requests that ICANN finish things it has promised to do.  But ICANN doesn't need more meetings, doesn't need regional offices, and doesn't need to generate funds to support work on connectivity and other issues in developing nations.  These things don't fit with its very limited mandate.

And ICANN certainly doesn't need money to continue endless work on tasks for which it has -- to date -- showed no particular aptitude.  Particularly where no performance milestones are present to limit its endless appetite for growth.  (It's amazing that this flurry of tasks and subtasks isn't linked to a visible docket sheet that people can follow online.)

Here's a question for ICANN.  Assume a guaranteed, no-negotiation-necessary budget of $5 million a year.  How would you carry out your tasks?  I have a feeling that it could be done.  It just doesn't take that much work to check entries in the IANA database, allow a new gTLD to open, or allow online work on consensus policies to go forward. 

I've had the benefit of two long plane flights and an enormous layover (16 hours) recently, so I have been having visions of internet governance.  What else is there to think about when you're completely unconnected from the world and the stranger next to you keeps unconsciously elbowing you throughout the long night?

Two books have made the journey with me:  Waldrop's 'Complexity' and Barabasi's 'Linked.'  Waldrop writes about the founding of the Sante Fe Institute, and the enormous interdisciplinary excitement of its early days.  One by one, the PhDs tell their stories -- they were alone, tootling along with their research, until they were brought together in Sante Fe and realized that other people had been working on the same problems.

Linked is aimed at getting us all to recognize the common characteristics of complex networks:  scale-free, subject to power laws, rich-get-richer growth patterns. 

So, add the two together:  what's the best way to govern a complex network that is self-organizing, emergent, subject to power laws, and living on its own?  The Santa Fe founders would say, "Watch it with care, but don't pretend that you can predict its course or channel its development."

I also have the ICANN Strategic Plan with me.  On the next flight (one more to go), I'll add it to the first two and see what results.  I wonder whether the authors of the Plan  have read the other two books.  Even if they haven't, ICANN Board members say the right things.  They're not governing; they're watching and facilitating.

The recent election was fraudulent.  Turnout was suspiciously high in the eastern portions of the country.  Voter intimidation and repeat voting took place nationwide.  Factory workers were told to request absentee ballots and then hand them to their supervisors -- thus keeping the workers from voting.  Thugs appeared, convicts and criminals, to beat people up and keep them from voting the way they wanted to.  Here's the map of this election:

(map from Yuschenko site -- site loads very slowly)

That's right:  it's the Ukraine.  This image shows (I think) what should have happened if the votes were counted fairly.  Yushchenko (red) would have beaten Yanyukovych (blue, and tied to Russia and the east).

Here's another image showing which province went to which candidate:

(maps from the BBC)

The Ukraine Supreme Court has suspended the publication of the results of the election until it has a chance to examine the opposition's arguments.  Yanukovych's henchmen say: 

"No-one, not even the Supreme Court, has the right to cancel [the result]"

It's not really red v. blue -- Yushchenko's color is orange, and people wearing orange buttons in support of him have already lost their jobs in Kiev.

And we here in the US had a fair election. 

Full-bandwidth, human interaction is the highest technology we have.  A crowded funeral, an enormous demonstration, or a small group talking -- every time, some kind of resonance takes over. So have a happy Thanksgiving.  And don't work too hard when it's over.

Now that devices are frustrating fast-fowarding ("don't try to get up -- we own your attention -- don't skip this commercial") by making you view banners if you try to skip ads, the end of the advertising arms-race must be near.

Ads have to become inseparable from "content" in order to survive -- so woven in that we can't ignore or delete them.  Mainstream media is catching on to the far horizons of product placement. Newsweek reports this week that

companies are looking to place the customer inside an advertising game, or "advergame," almost indefinitely. "You are now in the world the advertiser has created for you," says advergame designer Dan Fergeson.

This is what Times Square does too, but you can always decide to duck down a side street. 

Here's a regulatory question:  how does the FTC decide what is deceptive about a fully-immersive advertisement?  Is it false and misleading to show someone a really great, enriching life inside an advertisement when the product being advertised is shoddy and grey?

I'd say "stay tuned," but the thing is that we may get to the point of not being able to tell when we're "tuned" intentionally to a mass media event -- and when we're just blindly talking to someone who is being paid to sell to us.

We're clearly surrounded by self-organizing systems, at all levels.  Things are becoming more interesting all the time. 

And, for me, things became even more interesting tonight when I tried to explain to a small group of people why we need a Net Day next fall.  The group had endless suggestions:

1. Don't depict an online "wave" -- that's just a mob!  (Answer:  Sometimes humans like to synchronize.  It might be fun to have a brief global "wave" during which individuals clicked to light up their part of the network map.) 

2. What abstract goals would a Net Day serve? (Answer:  Like Earth Day, a Net Day would raise consciousness by helping people see a picture of the network generated one pixel at a time by groups.  The picture could be created over the course of several months; individuals could work within groups to accept or change the colors and shapes generated by other groups "around" them.  Visuals coming.)

3.  Who's going to pay for Net Day? (Answer:  Enlightened companies and foundations who want to market the idea of a healthy network to mainstream people who aren't online yet.  But not everyone will agree on every online goal; adding more people to the network may be the only common global hope.)

I've been assured by some of the books I re-read (I do this a lot) that there is a place for us in the universe.  And Lee Smolin's Life of the Cosmos made me believe for one shining summer that I actually understood the evolution of galaxies (and therefore the evolution of people). 

That moment may have passed.  Time to re-read. 

But now I'm wondering if there's a way to show people -- without using a lot of text -- that there's a place for them online in the evolving electronic world, and that their individual actions shape the picture of the network.

We had a good conversation.  (One problem:  someone listening tonight said it would cost $100 million to adequately market this idea.  Hmm.  I hope that's not the case. Maybe it's better not to know how much effort this is going to take.)

It takes only 30 people in a stadium of 50,000 to start a wave going.  How many bloggers would it take to start Net Day off?

In general, a second Bush administration is good for tech companies.  It's unlikely that there are geeks in this White House who are anxious to place their stamp on the internet. 

But the next four years hold risks for speech.  Even the most innovation-friendly conservative loses his head when it comes to protecting kids from smut online -- material that is perfectly lawful for adults to view. 

It's not difficult to imagine that an alliance between the content industry and Christian conservatives could be joined to fight against a passel of things that start with P:  porn, piracy, and P2P.  The goal:  to frame the internet as a dark den of iniquity rather than an engine of economic growth and opportunity.  ("Someone should be in charge of this thing that is destroying our controlled distribution channel.")

In a kind of harmonic convergence, this pack of Ps can be tied together:  P2P systems can be attacked in hearings as full of porn and piracy.  And it's not difficult to predict that we'll see some one-off P-related initiatives that are aimed towards son-of son-of CDA attempts.  (CDT has a great resource page here.) 

Just yesterday, Sen.Brownback led a subcommittee of the Senate Commerce Committee in a remarkable P-attack hearing, targeting online pornography addiction.

There's a hysterical tone to the reports of this hearing.  It sounds like recovered-memory testimony, or the twinkie defense, or other famous witch-hunts across the ages.  "My God!  I had no idea this well-established syndrome was such a problem!"

Line up to watch the P-rade.  We'll all meet afterwards in court.  

Here are three thoughts tying together (1) the groundswell perceived by Jeff Jarvis with respect to the FCC's future and (2) the project of helping people see the differences between networks and hierarchies:

1.  The Flash Part.  Advances come through making things visible. Get people to see, for one day in September 2005, how they are connected to others online, whether as bloggers, members of an online community, or lurkers.  ("Net Ecology Day.")  Show this picture (which will be quite a sight) to people who aren't online often or at all.

2.  The Empirical Part.  Connect this picture (somehow) to money and opportunity.  Each of us believes we're above average and just about to escape from whatever rut we're in.  That's what gives us hope to go on.  If we realized just how badly things were actually going, we'd all be Eeyores.  So link Net Ecology Day to jobs, numbers, innovation, and opportunity.  Because people are able to be online and connect to others, jobs and revenues and all the rest are bubbling up, creating entirely new economies.  Show people who aren't netheads that they could be employed by being online.

3.  The Netizen/Policy Part.  By September 2005, connect the visualization and the empirical evidence of opportunity to the dangers of overregulation of the internet.  Show how order can emerge from decentralized, productive actions (linking and working together), without any single government agency being in charge of online social policies.

This may help cheer up David Weinberger, if nothing else.

All ideas welcome.

I'm thinking of working on a major internet governance conference for next fall.  Please, everyone, talk me out of it.  It's an unbelievable amount of work; even the Nethead/Bellhead one-day no-papers no-presentations fest took enormous amounts of non-monetary resources to put together.  Why would I ever try that again? 

But tonight a wise friend of mine said, Well, I'm with you on the internet regulation front, because all regulation in this area is incumbent-driven and badly-done.  This reminded me of a cartoon in this week's New Yorker:

 

It's a blog about the state Attorneys General.  So it's a BLAG, not a blog.  And Jim Tierney is running it -- go take a look.

Also, Danny Weitzner of W3C has a new blog!  Very exciting.

Where's your blog?

Waaaay back in July 2004, ICANN's budget was set at $15 million.  I suggested that we not focus on the number (which represented a doubling over the prior year) but instead make sure that future budgets were (a) very closely tied to ICANN's mission and (b) scrutinized by watchdog groups with the resources to do something about overreaching.

I even suggested that ICANN wasn't interested in expanding its scope of activities.

Boy, was I wrong.

If you look at the recently-released ICANN Request for Proposals for .net (pdf file here), you'll see something remarkable on p.11:

[A]pplicants should assume that the following fees will be payable: (i) an annual fee to ICANN of US$132,000 for the first year, increasing by no more than 15% each year thereafter and (ii) registry-level transaction fees totaling non-refundable amounts of US$0.75 for each annual increment of an initial domain name registration and US$0.75 for each annual increment of a domain name re-registration registered by a registrar. . .

If this "transaction fee" of .75 per name becomes the model for future ICANN contracts, ICANN must be planning to have enormous resources at its disposal.  There are about 40 million names registered in the gTLD domains (.com, .net, .biz etc.  -- this category doesn't include the country code top level domains).

40 million times .75 is $30 million.  If something happens (a transfer, a renewal) to each one of these names once every three years, that's $10 million additional dollars every year.  Plus all the .75 fees coming in for each year of every new registration -- could be another $10 million a year.  That's a lot of money.  

These contracts are essentially non-negotiable -- indeed, ICANN states in the .net RFP that the assumption of these registry-level fees is "an absolute criterion."  Does ICANN have authority in its MOU with the Department of Commerce to require particular transaction-payments of registries?  Perhaps this is part of ICANN's strategic plan, which should be coming out tomorrow.  People will be looking for limiting principles in that plan. 

Given the .net fee structure, it may be that ICANN's ambitions are loftier than I thought they were.

ICANN has initiated arbitration (before the ICC's International Court of Arbitration) against VeriSign under the .net Registry Agreement, seeking declaratory judgments that many things VeriSign has done or attempted to do over the years (Sitefinder, ConsoliDate, IDN, WLS, and stemming the abusive actions of shell registrars when they destructively query the registry for secondary market purposes) violate that agreement. 

ICANN has asked the California state court hearing VeriSign's lawsuit to stay its proceedings in favor of this arbitration, because the two matters concern many of the same questions.  (The .com agreement says that both parties have to agree to arbitration, but the .net agreement allows either party to initiate arbitration without the agreement of the other.)

This is a religious war, but there's a contract at the heart of it.  What's at issue here is ICANN's belief that a registry is a public trust, and not a business. 

VeriSign signed a contract with ICANN that gives ICANN very narrow approval power (price and fit with specifications) over new services that are "provided as an integral part of the operation of the Registry TLD."  VeriSign's view is that these recently launched (or attempted-to-be-launched) services are not "integral" to its function of adding information to the zone file.  ICANN has never liked this contract, and appears to want to convert its contractual relationship with VeriSign into something much more like the relationship the FCC has with common carriers. 

VeriSign, for its part, has acted abruptly on more than one occasion (Sitefinder is the example that comes to mind) and is probably tired of having to ask for permission even for services that ARE "registry services" -- ICANN has read its approval scope more broadly than the contract may indicate, and it currently takes years for the process to roll to completion.

The .net registry is also now being competed for by other registry operators, and ICANN plainly would like to hand it to someone other than VeriSign:

ICANN has the right to terminate the .net agreement, in accordance with paragraph 5.4.5 of the agreement, if the arbitration panel finds that VeriSign has certain obligations under the .net agreement and VeriSign subsequently or concurrently violates those obligations. In addition, ICANN has the right to take VeriSign's conduct, as alleged herein, into account in connection with the future appointment of operators for new and/or existing TLDs.

So, once again, we're back in the swamp -- this time with ICANN on the offensive.  The California court will decide on December 7 whether to hold on to the case before it or defer to the international arbitration proceeding.

The FCC has filed a remarkable brief in the broadcast flag challenge pending before the DC Circuit.  (Public Knowledge is leading the plaintiffs in this matter.)

Some background:  Back in November 2003, the FCC issued an order (the broadcast flag rule) saying that all devices capable of receiving a digital TV signal (or storing DTV files) would have to comply by July 2005 with a set of technical mandates. 

The broadcast flag rule, distilled to its essence, is a mandate that all consumer electronics manufacturers and information technology companies ensure that any device that touches digital television content encrypt that content and protect it against unauthorized onward distribution.

 

In order to make this happen, the FCC has established a new and extraordinarily broadregulatory regime that mandates the use of "authorized" content protection technologies by virtually every consumer electronics product and computer product -- including digital television sets, digital cable set-top boxes, direct broadcast satellite receivers, personal video recorders (PVRs), DVD recorders, D-VHS recorders, and computers with tuner cards.

 

In the context of both the flag rule and the IP-enabled services proceeding that was the subject of Bellhead/Nethead earlier this fall, the FCC has said that it has "ancillary" jurisdiction to act.  Translation:  "Congress hasn't said that we DON'T have the power to do this, so we're going to go ahead on the assumption that we do." 

 

The FCC's brief, filed in response to PK's challenge to FCC's jurisdiction in the flag matter, is breathtaking.  FCC's position is that its Act gives it regulatory power over all instrumentalities, facilities, and apparatus "associated with the overall circuit of messages sent and received" via all interstate radio and wire communication.  That's quite a claim.

 

FCC believes that it has simply been restraining itself up until now.  Since 1934 (or 1927, depending on how you count), FCC has had power over all equipment used in connection with radio and wire transmissions.  When the need arises, it can exercise its authority -- including its authority over PCs, PVRs, and any new gizmo that has something to do with a communication of some sort.

 

As the FCC said in the November 2003 order,

"[E]ven though this may be the first time the Commission exercises its ancillary jurisdiction over equipment manufacturers in this manner, the nation now stands at a juncture where such exercise of authority is necessary."  In other words, the FCC is willing to do whatever it takes to make the DTV transition happens; it believes the flag is necessary to this transition, and not having explicit jurisdiction to act isn't enough of a reason not to act.

 

FCC can't deny that every single time it has made a rule affecting consumer electronics devices it has had explicit authority from Congress to do so.  But its brief argues that none of these statutes "demonstrate[] a congressional understanding that the FCC lacks general rulemaking authority over television receiving equipment."  ("Congress didn't tell us we couldn't act.")

 

The thing is, this rule doesn't merely affect TV receiving equipment.  It affects everything that RECEIVES digital files from TV receiving equipment as well -- every device inside any home network.  It affects the open-platform PC.  It's a sweeping rule.  And now FCC's jurisdiction to enact this rule is being argued in sweeping terms.

 

Why should we care about all of this?  We should care because if the FCC has the power to act on anything that has something to do with communication, we have only the FCC's self-restraint to rely on when it comes to all internet communications.  We should care because we want open platforms and open communications to continue.  We should care because the future of the internet is at stake -- the FCC will use its "ancillary jurisdiction" to impose "social policies" on any services that use the internet protocol, and will point to its broadcast flag action as support for its jurisdictional claims.

 

I'm wondering if the White House knows what is going on at the FCC.

 

It looks as if other people (maybe many other people) are working on personalized/social network search applications.  Over at Smart Mobs, Paul Hartzon has a post today about NeuroGrid.  You become a node and start informing a network with better metadata about documents.

W3C's work on a "resource description framework" (RDF) browser is, meanwhile, sparking some negative Slashdot commentary today.  Sample:  "A network of random connections of semantic concepts embodied as URIs is just not a friendly form of data for humans to manipulate directly, and I don't think it ever will be."  But some people are more positive: 

Browsing metadata is the next frontier in the evolution of the web. Some of the other RDF browsers popping up include Gnowsis [gnowsis.org], MIT Haystack [mit.edu], and Fenfire [nongnu.org].

Get out there and find some metadata.  Meta is bettah.  I like this recent post heading:  "I'll have a Low-Fat, Soy, Social, Local Search Latte, Please." 

Someone who went to law school in the early 1970s and now works as a licensing lawyer said to me today that he had had to beg his dean to provide some kind of IP course -- and all he got from his efforts was a one-term survey covering patent, trademark, and copyright, taught by a guy who used to run a movie projector and so was deemed to be the most likely to know about that kind of stuff.

No longer.  Intellectual property is hot, hot, hot.  IP law is swallowing up whole domains that used to be innocent of the rhetoric of property. 

Three stories for today:

1.  MSN has issued a Royalty-Free Protocol License Agreement that, as far as I can tell, requires that any application communicating with any MSN operating system has to license from MSN (for free) the right to use standard communication protocols -- to the extent MSN owns any rights in those protocols.  MSN isn't saying in this license agreement precisely what rights it claims to own.  But it is listing all kinds of protocols, including ftp and TCP/IP, as things that need to be licensed. 

Larry Blunk has written to the IETF expressing concern that this move by MSN "inject[s] a significant amount of unwarranted uncertainty and doubt regarding non-Microsoft implementations of these protocols." 

The agreement is non-negotiable.  

2.  Amicus briefs are flying in the Grokster case.  The betting is that the Court will take the case -- it will be hard for the clerks to ignore such an interesting set of issues.  EFF's brief is here [pdf]; PFF's brief is here [pdf]; and TFF is expected to file soon.

3.  Speaking of EFF, they're looking for amicus briefs to be filed by December 22, 2004 in the Blizzard v. Internet Gateway case in the 8th Circuit.  The district court decision [pdf] in that case upholds a very broad license agreement forbidding any kind of reverse engineering or fair use; key issues before the appellate court will be preemption and the scope of the 1201(f) exception in the DMCA for reverse engineering. 

And if you understood that last paragraph you are living evidence of the salience of IP law.

Clay Shirky has posted a wise and straightforward piece about small things software designers could do to target and support group users of software.

Providing ways to aggregate information about the state of the group mind -- ranking/filtering/applauding -- as well as ways to allow roles within groups to be filled by shifting members of the group, allows social complexity to emerge from simple technology.

It's all about metainformational depth, tags, and flows.  If designers make it easy for users to apply tags to information, either manually or automatically (I LIKE this post; I LEAN in this direction; this guy is posting TOO MUCH), those tags can be aggregated to produce patterns that reveal the group as an entity with an interesting life of its own.

Clay suggests thinking about simple changes to existing software that would allow groups to flourish through the feedback familiar to us in complex adaptive systems.  He uses Craigslist and Slashdot as examples of gently-mutated software services that provide enormous value.  

If only search was group-directed, or at least group-oriented.  We must be at a very early stage of search engines -- right now, we fling ourselves into a list, and emerge exhausted.  Maybe some members of a group could be tagged as expert searchers.  Maybe groups could compete for the affection of new group members through the power and precision of their searches.  I'm not so interested in searching my own desktop, but I am fascinated by searching the desktops of the Bertrand Russells or Isaiah Berlins or William Jameses of today.  And I want to be able to find today what I found yesterday and tagged for later reading -- or that a group I'm interested in tagged for later reading.

Right now.      

And leave a message before 5pm tomorrow, Friday, telling him/her NOT to sign off on an amicus brief supporting cert. in Grokster.

Here's the list of phone numbers.

What's happened is that AGs are politely circulating a brief supporting a grant of cert. -- probably very few of them know what the larger issues are, and probably most of them believe that Grokster is a bad guy who should be punished.

All you have to say is:  "This is not an issue you should get involved in.  What's really going on here is that the studio plaintiffs are trying to overturn Sony.  Overturning Sony would have serious and damaging implications for the high-technology industry in our country -- an industry that contributes enormously to our national economy.  Don't sign on."

I'm in DC for the law professor recruiting conference.  The interviews are about to start, and I'll disappear for a few days.  So far, being here has been a blur of visits -- never enough time to talk.  And a lot of prognosticating about the effects (if any) of the election on tech policy.

The MPAA announced today that they'll be suing individual uploaders of pre-release films.  Some reactions:

1.  Current copyright law is broad, strong, and can be used as an effective tool by content creators.  No need to write new copyright laws reaching manufacturers and service providers.

2.  If in fact the MPAA is going after uploading of pre-releases, they should try to stop the bleeding at its source -- it must be that critics and reviewers and studio sources are leaking this content. 

3.  Why aren't better, legal downloading sites available for the consumers that would like to access this content and are willing to pay a reasonable amount to do so?

4.  It's likely that these suits will have a positive, dampening effect on uploading.  That's appropriate.  I'm not against litigation.  But I don't think litigation is a substitute for better business models.   

On today's NYT Op-Ed page, Paul Krugman and David Brooks both had columns in which they said the Times wouldn't let them endorse a candidate.  But they made sure to hint strongly as to their preferred choices.

In contrast to those columns, it was refreshing to have a swarm of blogger statements filling the center of the page.  The Times: "The Op-Ed page asked bloggers from all points on the political spectrum to say what they thought was the most important event or moment of the campaign that, we hope, comes to an end today."  And the bloggers went ahead and said what they wanted to. Wonkette did a particularly good job:

I was all set to vote for George Bush even after finding out that he wouldn't let me marry Mary Cheney if I wanted to. . . . But in the end, with the fate of the free world at stake and all, I've got to go with the guy who would admit that sending thousands of American soldiers and Iraqi civilians to their deaths to protect us from imaginary weapons was, in fact, a mistake.

So the bloggers had an endorsing voice, but the columnists didn't.

[sweeping segue...modulation]  I get very excited about the possibilities of technology in the classroom, and online ways of teaching.  But it's becoming clear to me that humans offered the ability to just talk to one another would prefer to do that.  Sure, the lecture to a large room is a dead form, but people like the compactness and richly informational nature of talking and listening in a quiet room filled with lots of other humans.

We had a particularly vivid example of this predilection this past weekend, when one of the State of Play panelists decided to speak through an online avatar.  So the panelist busily typed away, and another person in the audience read the avatar's words out loud into a microphone.  This seemed completely unnecessary and irritating.  The panelist was there!  She was in the room!  She should have been talking to us!  But, instead, we were stuck with a static avatar not saying very much (not even twirling) with a halting voiceover slowly saying what the avatar puppeteer had typed.

Online talk is best when it's necessary in some sense.  Because there's a classroom, and a classtime, and a regular session for chatter, we'd rather show up to class together than pretend to be deeply engaged in an online thread about the same sorts of subjects we're discussing in class.  It just doesn't seem efficient/necessary/satisfying to move part of the class online.  If we moved all of the class online, that might work -- particularly if we gave a lot of credit and recognition for what happened online.

Same with the bloggers on the Op-Ed page today.  Blogging works because it's the only way people can have a voice that is found by their peers without an enormous, expensive, authoritative structure supporting it.  it's necessary.  I bet a blogger who had lots of other more traditional ways to reach the public (an authoritative platform of another kind) would not be as interesting a blogger.  And might even forget to blog.

So:  it's a tradeoff.  Necessity has produced new forms of journalism online, and will soon produce new forms of online legal education.  In the meantime, the traditional ways of doing things are not going away.

But those poor traditional columnists aren't getting to endorse candidates.  It's a shame.  They should try blogging.

 

Many of you have voted already.  I'm going to PS 41 in the morning to vote.  Someone IMd me this afternoon, saying "I can't concentrate."  It's the election; tonight, three people said to me that they were worried about constitutional crises of various kinds tomorrow.

Whatever happens, the internet has had a huge effect on this election -- and I predict that we'll have a peaceful, civil day tomorrow, in part because of our ability to watch facts roll out online, in a river of commentary and adjustments and fierce blogging.  As John Schwartz so eloquently said in the Times yesterday:

Despite the fractious modern-day discourse, the nation's founders would have surely loved the debate fueled by the Internet. The pamphleteers of their day could be nettlesome and scurrilous, but the founders wrote the First Amendment with the faith that good ideas generally win out in the marketplace of ideas. . . .

The fact that today's marketplace of ideas has vendors that pass off shoddy goods should come as no surprise . . .  But Internauts didn't abandon eBay, which calls itself the "perfect market," or other online shops. Instead, they approach those marketplaces with a healthy dose of skepticism.

Given time, we all might become savvy consumers in the marketplace of ideas as well.

I like the "internaut" coinage, and I'm particularly happy that we have a beautiful view of a thriving marketplace of ideas.  Online.

We'll be fine.

Leon Fleisher has a CD out called Two Hands.  For a long time he could only play with his left hand.  Now he has both again.  I love listening to this recording.  You can hear his joy at being able to use his right hand.

And he says being without that hand made him think differently about music. 

I’ve had to think about music in a much more detailed manner than I ever had before so that I could really describe what I’m doing…I think I became a far better musician; I became a far better teacher.

So:  don't take your hands for granted. 

Peter Ludlow was the key speaker tonight.  He said [very roughly paraphrasing]:  "Why do we need virtual worlds with Draconian terms of service allowing the world to destroy your creation and/or kick you off for any reason ("or no reason")?  Why not just go off and build your own thing with your friends in an open source environment?  Try Croquet.  Try Muppets.  Go ahead and learn to script.  It's really easy."  Ludlow was refreshing and straightforward.

Beth Noveck's conference is off to a good start.  It was entertaining to hear about A Tale In The Desert again.  It didn't sound fun last year and it still doesn't sound fun.  But it's good to think about governance.  If only we could make it fun. 

Second Life has a great PR campaign:  raise money, announce it the day of the conference, and have your journalist be the lead-off speaker.  Good work, guys.

I hear that SecondLife has just raised eight million dollars from Pierre Omidyar's group and others.  Dinner tonight is on them! [not really]

I'm very much looking forward to this weekend's conference, which I predict will be engaging, funny, and totally exhausting.  I'll blog, and so will many other people.

Huge victory in the Lexmark v. Static Control [pdf] case today.  Lexmark can't use the DMCA to keep its competitors from marketing cartridges that work with Lexmark's printers.

With luck, this opinion will become the Hush-A-Phone decision of our time.  "Of course," we'll say.  "It's unthinkable that someone could use the DMCA to stop competition." 

It was not always so.

Danah and Mary wrote about this a while ago, so this is old news, but Webnote is pretty neat.  As Mary says, it's like Third Voice.  But it's better at visually organizing notes on a screen.  And maybe it won't try to build a business model based on advertising -- that's what did Third Voice in.

I'm proposing a Net Ecology Day.  And it has to be visual, so that people understand the differences between hierarchies and networks and get the chance to care collectively about the health of this network of networks.

It's my belief that the ecology of the net is deeply threatened. It's not just the attacks on P2P networks or government thoughts about requiring authentication as a condition of online life -- although these developments and others give rise to concern -- it's about what seems to be a general sense that the net is a dark and dangerous place.  A seedy place.  A place that needs to be constrained. 

This overall reaction to the net provides breathing room for all kinds of initiatives, ranging from the FCC's broadcast flag rule to ISP gags required by national police.  But very few people are paying attention to the overal ecology of the net.

Earth Day came into being because Sen. Gaylord Nelson became concerned in the 60s that no one was paying attention to the environment.  He wanted to "shake up the political establishment and force [the] issue onto the national agenda."  He wanted "to show the political leadership of the Nation that there was broad and deep support for the environmental movement." He succeeded beyond his wildest dreams.

On April 22, 1970, twenty million Americans took to the streets to demonstrate for a healthy environment.  Since then, Earth Day has become a global phenomenon, mobilizing hundreds of million of people in support of environmental issues.  Not all these people would support everyone else's issues, but once they had Earth Day they could support the collective activity of worrying about the environment.  As Sen. Nelson puts it: 

Earth Day worked because of the spontaneous response at the grassroots level. We had neither the time nor resources to organize 20 million demonstrators and the thousands of schools and local communities that participated. That was the remarkable thing about Earth Day. It organized itself.  

Now we have a new environment -- the internet -- that is under attack.  Not everyone will support everyone else's issues.  But we need to draw attention to the threat in some shared, ritualistic, visual way that will cause a shift in perception.  We need an Earth Day for the internet.  And we're in luck:  the internet is particularly good at organizing itself.

Here's the suggestion for how this could work:  The central problem that we need to solve, the central complacency we need to overcome, is the general feeling that someone is (or should be) in charge of the internet.  We need to show the difference between networks and hierarchies.

What if, on one day a year, we globally built a picture of links together?  Each person could put a dot on the global page, identify it, and then draw a line to something online that they care about.  I bet the result would be a very interesting and dynamic network diagram that we could animate.  You'd see the thing pulse and change, as some links became thicker through popularity and clusters connected all at once.  Then, for one day, people could post this living, animated network diagram on their page or blog.  Very zippy.  We could make it possible for people to show "their" part of the network -- what they had decided was important.  (There are, to be sure, a few hurdles to overcome, but don't bother me with your petty technical difficulties (PTD)).

Then, by contrast, we could provide a "movie" of an animated hierarchy plodding along.  Blump, blump, blump.  Frozen and boring.

With these two pictures, one of them built in real time, collectively, by people around the world, we could see the difference between a network and a hierarchy.  We wouldn't need permission to do this.  We'd just need a good symbol and a good PR campaign.  Just one day a year.  In the fall.

If anyone is worried about the ecology of the internet, we need to reach the world to explain why we're worried.  It's not enough to reach a few classrooms.  We need a dynamic picture that, like early religious icons, can transmit  ritualistically the meaning of the internet to a network-illiterate world.  Religions figured this out long ago.  Truth is transmitted to our successors through ritual and music and pictures, not just the written word. 

Of course, this idea of net ecology is not a religion, it's a science.  Or is it?

The Computing Technology Industry Association (CompTIA) published today a short set of Bush and Kerry answers [pdf] to questions about technology policy.  For my money, the most interesting pair of statements came in response to the following question:  "What is the appropriate role for the federal government in addressing concerns about content over the Internet?"

President Bush immediately jumps to children, and gives a weirdly focused answer.  Let's take it apart. 

We must give our Nation's children every opportunity to grow in knowledge while protecting them.

Does this mean that the chief responsibility of the federal government when it comes to online content is to act as a terrified parent?  Is the internet assumed to be a dangerous, threatening, dark and seedy place? 

Parents have the first responsibility for protecting children online, by paying attention to their children when they are on the Internet, and by preventing children from giving out personal information online.

Okay, apparently the Administration is not alone in being a parent.  Parents can also be parents.  But we're really focused on those threatened kids.  Is the internet just a place for scaring children?

My Administration is standing with parents by waging a nationwide effort to prevent the use of the Internet to sexually exploit and endanger children.

Yes, apparently the internet is mostly for the exploitation and endangerment of children.  Which happens in chat rooms and by way of P2P services of various kinds.  We must get rid of this P2P idea.

My FY 2005 Budget would double funding for Justice Department programs that investigate and prosecute child exploitation and obscenity over the FY 2001 level. My Administration has successfully defended the Children's Internet Protection Act (CIPA), which requires schools and libraries to filter content that is harmful to minors if they are to receive Federal money for Internet access.

So the main role of the federal government when it comes to the internet, which is a dangerous, dark, and oppressive place, is to prosecute.  And to insist on filtering.  Rather than encouraging the development of tools that facilitate user control of their experiences (both in terms of filtering and making useful connections), the government is going to protect us on its own.

I signed into law the Dot Kids Implementation and Efficiency Act to create a new child-friendly domain on the Internet, which functions much like the children's section of the library, where parents can feel comfortable allowing their children to browse.

How many active, non-defensive registrations have there been in .kids.us?  According to Michael Gallagher's (NTIA official; rumored to be the next FCC Chairman if Bush wins) testimony in May 2004, "Currently, kids.us is home to thirteen active websites."

That's right.  There are 13 great places for kids to go online in kids.us. 

And that's it -- that's the end of the President's statement.  Granted, he was operating under strict word limits.  But still, it's worth wondering what's going on here.  Between protecting children (after all, even the oldest among us are  God's children, right?) and assuaging security concerns, the Administration we've got is going to be very forceful about constraining this awful, grimy, set of "internets" -- it'll take money, it'll take prosecutors, it'll take reams of international agreements, but someday we'll rein it in.

Sen. Kerry was able to talk about issues other than child safety in his response.  Here's his answer in full:

Concerns about content over the Internet range from parents worried about the proliferation of pornography to musicians worried about their works being stolen on peer-to-peer networks.

I am a big believer in technology and science. I strongly support attacking bad behavior -- putting child pornographers behind bars and prosecuting individuals engaged in mass piracy. But, regulating technology should be a last resort to solving any content problem.

I believe that technology will solve most content concerns. Software available to parents to filter out pornography is helping parents protect kids. Legal music and movie services are on the rise, with services like iTunes and iPods revolutionizing the marketplace. The role of the federal government is to remain vigilant in the protection of our children and in standing up for the protection of intellectual property. And, it is the role of the federal government to ensure that law and regulation encourage the development and deployment of new technologies.

He's worried about children and he's worried about IP, but Sen. Kerry seems to sense that technology is not all bad. 

Either way, whoever is elected, we may need an Earth Day for the internet.     

It's hard to choose between The Note and TheRegular.  The Note has the political junkie voice of Mark Halperin, lionized in this week's New Yorker.  TheRegular has a slashdot approach to political news -- and although it's just starting, it's going to be great.  The Note is (in a sense) a slashdot affair as well, but the collaborative filtering is done by Halperin and his team.  TheRegular has all of us (as soon as we start participating) helping out.

We're still at a primitive state when it comes to online blog-like news.  Why can't we see issues coming towards us, in a radar-screen-like way?  Why are we so tied to text and comments -- things that disappear "below the fold" if we're not watching every minute of the day?  Why don't we have structures for our obsessions that allow us to wield large amounts of data visually and gracefully?  When will our screens become pliable and musical? 

On the other hand, the nation is TheTired of electioneering.  Maybe it's just as well that TheRegular and The Note are just sending us text and friendly static colors.  Maybe more multimedia approaches to deliberation are overwhelming.  Let's get this election over with and then move on to changing our relationship to the screen.

Dennis Overbye of the Times had a beautiful article today about Dr. David Gross posing 25 questions about the future of physics.  Gross, a recent Nobel Prize winner, talks heroically about the intertwined disciplines in which physicists are interested.  He's talking to his "dream conference" of physicists, and he says the conference could have lasted a week -- because they only took two and a half days, everyone had to talk very quickly, and there was no time for questions.  He has a picture of a curve to describe the quality of talks:  "If you have no time to talk at all, the quality is zero; if you talk for a month, the quality is pretty small...length of time for the highest quality talk is between 10 and 30 minutes -- no more. ... After five minutes, you either understand everything and don't want to hear any more, or you understand nothing and don't want to hear any more."

He stresses that the most important product of knowledge is ignorance.  Science is shaped by ignorance.  So what questions do we still have to answer that are driving the field of physics?  Gross got a lot of help from his fellow physicists in creating this list.

The first four questions: 

1.  How did the universe begin?  how far back can we probe? can string theory determine what happened at the point at which the universe was created? was there a time before the big bang? is time itself an emergent concept -- so that we're formulating the question incorrectly?

2.  Dark matter -- 25% of the universe is dark, and we don't know what it is.  What is the nature of dark matter? how does dark matter interact with ordinary matter?  is it wimpy (this must be a physicist term of art)? can we detect it in the laboratory? what's its distribution in the universe? what does this tell us about structure formation?

3.  Dark energy -- which is 70% of the universe -- what is the nature of the dark energy?  Is it just a cosmological constant?

4.  Astrophysics.  How do stars form?  How do planets form? (this is the growth area in astrophysics, based on average age of the attendees)  What is the frequency of planets that can support life?

Gross really seems to be having fun giving this talk. 

So:  for the cyberlaw/IP world, what 25 questions would we ask?

 

 

HBO is saying that fair use applies only to broadcast, not to cable:

Q:  "Has the law changed? Please help me understand what is (and is not) legal for me to do with HBO programming. I have grown accustomed to making and often sharing copies of programs with friends and family.

The laws on copying distinguish between broadcast and non-broadcast programming. Broadcasters are required to permit consumers to make a single copy of broadcast programming for time shifting purposes. However, the law allows non-broadcast programming networks to decide what copying privileges they wish to extend to consumers."

HBO's position has support in Section. 1201(k)(2) of the DMCA, which says that pay-per-view/subscription television can take advantage of copy control technology required to be part of VCRs.

The interesting question is how subscribers to HBO will feel about this.  Are they so used to making copies that they'll leave HBO in droves?   Will they generally abandon cable for online sources of content?  Probably not. 

More from HBO's FAQ:

"Q:  Is only HBO doing this, and why?

HBO has decided to begin implementing copyright protection technologies now with the increasing proliferation of digital consumer electronic equipment. As television transitions from analog to digital technology, it will become important for distributors of high value programming to take similar steps."

Hang on to your old open devices. And don't look to cable and satellite providers to provide you with lots of choices.  Bit by bit, the analog hole is going to close.

This morning on MSNBC, two stories ran back to back. The first was about the FTC going after spyware.  The second was about Google's new beta product, Desktop Search.

Spyware, bad.  Desktop Search, good.  But what, really, is the difference?

Spyware, according to the FTC, "installs adware and other software programs that spy on consumers' Web surfing."  Desktop Search "keeps a copy of every Web page you visit and lists those pages in search results with the date and time of your visit."

A key difference is that you "consent" to the installation of Desktop Search, and you can un-install it easily. Spyware, by contrast, doesn't ask for permission.  But how informed is a consumer's "consent" to installation of Desktop Search?  Will people really understand that their instant message communications are being stored, that their "deleted" emails are actually retained for later searches, and that others using their PC will be able to access all of this information?

Over on Slashdot, people are excited (if a little contemptuous).  One comment:  "Software a son could love, but a mother could install."  Someone did say that Google gets a lot out of this --

Unless you choose to opt out, either during installation or at any time after installation, non-personal information collected will be sent to Google.

But that doesn't seem to be bothering a lot of the commentators -- Google says it's getting usage pattern data.  One Slashdot commentator did say:  "It's a lot less fun when your Google search finds your OWN porn."

The discussion about privacy and spyware and electronic places is incremental.  Today is a good snapshot day:  when mass media reported sound bites about "spyware" and "desktop search" back to back and no one experienced cognitive dissonance. 

Here's why we have no problem with "desktop search":  we aren't really worried about being watched.  We're really really worried about being in an abusive relationship with someone we don't even know. 

 

Yesterday, I received a letter from US News & World Report.  It said, "As part of its spring 2005 report on graduate and professional schools, U.S. News & World Report is conducting a survey to identify the law schools having the top programs in intellectual law.. .. This survey is being sent to a sample of law school faculty listed in the AALS Directory of Law Teachers 2003-2004 as currently teaching a course or seminar in intellectual law.  Your participation in this survey in greatly appreciated."

For good or ill, the U.S. News rankings of law schools are looked at carefully.  So I knew instinctively that this was an important moment.

Who has the best program in intellectual law?

It's good to know that U.S. News cares about intellectual law.  Someone needs to.  I was relieved that Brian Leiter had visited Cardozo just the day before.  This signaled to me that clearly Cardozo had a strong intellectual law program.  So it was easy to vote for my own school.

And it wasn't hard to find a few other schools to vote for.  This profession is lousy with intellectual law specialists.  I sent back the survey in triumph.  I knew I'd contributed to the state of legal education in America.

I'm not troubled by having ranking systems out there, and perhaps we ought to embrace them even more emphatically than we do.  It's snarky to question U.S. News's proofreading.  But it did make the enterprise feel a little shallow.