Leonard Slatkin did a great thing last night:  he made an entire hall of jaded, sophisticated concertgoers (bathing in the cream bath that is Carnegie Hall) really listen to Beethoven's 9th.  And it's all related to the current battle between innovation and intellectual property overreaching.

Slatkin turned around and talked to the hall about Mahler's re-orchestration of this symphony.  He pointed out that Beethoven died sixty years before Mahler's prime as a great opera conductor and composer, and that during those sixty years a lot changed:  orchestras got bigger, halls got bigger, and instruments evolved.  Notes that a flute couldn't play in B's time became accessible.  (There are still notes that the sopranos in the Kennedy Center chorus couldn't reach last night, but let's be charitable: pitch has gone up an awful lot since B's time, and human vocal cords haven't changed that much.)

Mahler, as a guy with dramatic flair and an urge to actually hear the melodies of the piece, liberally redrafted the orchestration of the 9th.  He used massed winds to emphasize points.  He changed dynamics and articulations.  He had the entire wind section raise their bells (a very Mahlerian move) to play what had been a lone piccolo's trill near the end of the last movement.  He marked up the famous recitative so it would sound meaningful instead of plodding.  Slatkin illustrated this for us, using the orchestra to provide musical examples.  Slatkin pointed out that lots of conductors had done similar things to the 9th -- the Szell 9th, the Toscanini 9th, the Walter 9th. 

He ended by saying that during the last 25 years or so we've adopted this prayerful, pure (my words, not his) approach to "classical" music.  We see and hear these works as unchanging and unchangeable.  But that's not what they are -- they're not frozen in amber, they're not things we're supposed to respect in the abstract.  They change with the times.

Some people near me arrived after this portion of the concert, before the NSO actually played the symphony all the way through.  When I told them about what they'd missed, one woman said: "Oh, well, I'm very familiar with the piece," as if she couldn't imagine that it might change.  And then she told her husband that the symphony was 70 minutes long.  Wellll, maybe it is and maybe it isn't! It depends what's being done to it.

Maybe (here's the tie-in to innovation and intellectual property) we're in an era in which we're beginning numbly to accept that "content" is just provided to us.  It's an atom, a thing that floats in space, unchanging.  We can hear or see it, as part of a mass content-absorption experience, but we are at a distance from it. 

But musical experiences are informational.  They're made of bits, not of atoms.  They should happen anew every single time, if things are going well.  Music isn't wallpaper, and you don't "acquire" concerts.  You experience them. 

Anyway, the performance was stunningly beautiful, full-hearted, and novel.  Maybe that's just me.  I thought it was. 

And I did get the sense that everyone in the hall who had been there for Slatkin's talk was listening intently with new ears. 

The truly talented Paul Marino came to talk this afternoon about Machinima, and I'm looking for volunteers to help me with "Property Law: The Video Game."  Seriously, folks, this is big.

Paul (and many others) are working on and using tools that make film-making within a real-time 3D environment easy for the rest of us.  They're using game engines (like Quake) as a way to produce movies.  This all started with teenagers recording what they themselves were doing in the game -- so they could show their friends -- and has amplified into a new way to make animated movies with a real director's touch. 

Paul (who is writing a book that will be coming out soon) says that Machinima was coined in Scotland and means "machine cinema."  At this point, people are deep into building post-production tools that provide all kinds of control.  There are some breathtaking films on this site.  Watch the one with the flower.

Basically, the Machinima tools take a game environment (many different game environments) as a given, and allow directors to choose camera angles, lay down "tracks" of different characters (so they appear to interact), add music -- you name it.  Game developers have mostly been quite receptive to Machinima, because it provides another channel for their engines.  So far, the licensing part of all this is a little ad hoc, but will likely become more standard in time.  This may be the way the next blockbuster animated film gets made.

Paul pointed us towards Red v. Blue, a group in Austin that's making very funny films using Halo.  Guys just talking and standing around in a multiplayer game, talking about standing around.  Take my word for it -- it's funny.

You can imagine all the gamer sorts of things that can happen in these films -- characters gathering together to be directed (people playing characters who are playing actors), avatars wandering on to the set, killing/maiming (but not really in what Paul showed us)..

He showed us some very realistic character work for which the interface for human directors would be sliders.  Raise a slider, raise an eyebrow!  And if you have a .wav file of someone speaking, that will drive the character's speech.  Really neat (words fail me at this point).

If you join the Machinima Academy, you can get a tool that allows creation of these things for a modest yearly fee.  As long as you don't make commercial films.  Paul did a demo for us in about 3 minutes -- very impressive.

So the law professors started asking questions:

can we load documents in and make this a course?

can we modify the environments?

can we use this to stage reenactments of accidents?

Paul pointed us to Adobe Atmosphere, a virtual world tool that allows for documents to be involved.  I'm most interested in the course applications.  What if you walked into a property course, and it was a game like one of these films?  (This is a lot of work for the professor.) 

But it might just be the future.

 

 

Part of the premise of the accountable net is that each individual will be setting up his/her own set of rules for who they connect to (this is a who rather than a what question -- trustworthy sources of bits).  We're still working on the paper, so there's nothing to blog yet, but the roadshow has been quite constructive. 

At the Berkman Center last week, we heard from several people who are concerned about making any changes at the ISP level.  The worry is that packets won't be guaranteed to get anywhere unless they find a route through congenial ISPs.  If any ISP can block anything, the reasoning goes, we'll end up with a net that doesn't actually interconnect.  No quality of service guarantees.

The response to this is that ISPs, to be valuable, will want to connect to networks that make adequate security guarantees (and enforce them).  So interconnection will be desirable and growing.  Backbones will want to make the same deals.

It's at the individual level that things get most interesting.  Let's assume that we flip the default setting and connect only to those we actually trust (or who are recommended to us).  In a sense, we will have set up an individual set of "laws" for online interactions.  We could even draw a picture of these laws so that we'd understand them for ourselves in a continuously updated way.  If we're not up to doing this for ourselves, we could go to vendors of rules and get the package that made sense.

Now, if laws can be bought and sold in this fashion, what does that mean for our respect for and understanding of "real" law?  If "real" law only governs atoms, is it more or less meaningful to us?  It may be that we end up with two complementary systems, with overlaps.  After all, the sovereign who has power over us, physically, could try to mandate particular sets of default rules -- a tricky task to enforce.  Things will be moving too quickly for the sovereign to keep up with our filters and connections.

But a new question does arise -- what happens to respect for "real" law when another system of rules exists that has legal effect in the online world?

Two recent (or upcoming) ICANN moments should cause concern. 

First, the sTLD beauty contest.  The application requirements for these sTLDs make it seem as if registries are applying for venture funding rather than a string.  Take a look, particularly at the financial and business plan requirements.  Headcounts down to the mailroom.  Travel plans.  It's as if ICANN has hired an investment banker to look into these plans.  ICANN has no special competency in any of these areas, and it would make much more sense -- and fit ICANN's limited role so much better -- if ICANN had a neutral third party develop minimum technical/financial standards.  ICANN could then then roll TLDs (not sponsored, not unsponsored, just TLDs) out as applications came in and were approved. 

Second, the suggestion that ICANN needs a Policy Development Process about changes to the "architecture and operations" (or "services and actions" -- pick your broad description) of a registry.  Although the staff says (and I believe them) that all they're doing is trying to develop a coherent process for responding to registry requests to amend their contracts, it's very clear that other constituencies view this PDP as an opportunity to ensure that no registry does anything without their permission.  This has gone far out of scope and needs to be hauled back.  Yes, we need a docket for the process and substance of actions ICANN is taking -- but we don't need one or another constituency blocking registry services for idiosyncratic reasons. 

The idea is that registries are free to innovate unless there is a consensus policy in existence to the contrary.  This PDP should not be viewed as changing that default setting, which is set forth in each of the contracts ICANN has signed with gTLDs.  Nor should the sTLD process be looked on as a model for future TLD activities.  It's time to move on to an ICANN that is more clearly in the business of technical coordination.

 

 

The MPAA comments in the broadcast flag proceeding are worth reading.

At p.9, the MPAA asserts that "the focus of attention on unauthorized redistribution should be on whether a proposed technology affirmatively and reasonably constrains unauthorized distribution beyond the local environment. . . " What the MPAA means by this is that it believes no content protection technology that allows transmission of content online could ever be added to Table A.

What does that mean in humanspeak?  Well, it means that if you're using a "compliant" TV and you see a news clip that you'd like to send to your parents (who, let's assume, don't live with you), you won't be able to.  Nope, not unless you find a way to make a hard copy and mail it to them in a box (and they have a compliant device in their home that they understand and can use to play the recording).  Sounds cumbersome, doesn't it?  Sort of puts things in a box. 

Focusing on a "tightly defined geographic area" for redistribution allowed by content protection technologies seems odd in the age of the internet.  But even stranger is the MPAA's contention that software demodulators (code that "tunes" TV signals so that people can see them) must be covered by the flag rule.  So this means that the FCC is now in the business of assuring the "compliance" and "robustness" of code.  Software demodulators, the MPAA claims, can only be sold on the market if they are incorporated in a compliant "Demodulation Product."  Again, the box:  software "tuners" will have to be sold in a box with approved hardware in order to be legal. And won't be available, separately, for use in PCs (unless the digital outputs of those PCs are adequately robust and protected).

This is shaping up to be quite a battle.  Stay tuned (but don't use software to do so).

It would be good to get mainstream computer enthusiasts interested in this proceeding.  What's the best way to do that?

There's reputable work going on with human cloning. A group of South Korean scientists has figured out how to clone a human embryo.

Immediately, we're into the circle of ethical handwringing that is familiar to us all. But a new intersection struck me as I listened to the stories on the radio.

There's a sense that we want to hold technology back, to prohibit certain kinds of copying that some view as immoral. I have a strong view on this when it comes to humans: so much about a pre-wired person is shaped by their environment that a clone could turn out entirely differently than its original. I refuse to worry about cloning, and I think the importance of creating useful stem cells far outweighs any concerns about creating embryo copies that are "human" in some sense.

Similarly, the copyright debate (particularly in the broadcast flag setting) is often focused on limiting technology so as to prohibit certain kinds of copying that some view as immoral.

I'm going to make a provocative suggestion:  Although it is true that too much copying produces cancer (or destructive infringement), the machines that make copying possible don't have moral content.  So there is no reason to punish copying machines when they do their job -- either when copying  embryos or content. 

Additionally, the act of copying is purely informational.  Too much of it, or too much public distribution of it, can be considered wrongful (cancerous or infringing), but small amounts of copying for personal purposes don't meet this test.

Don't punish technology.  Punish people who copy too much.  (And let stem cell research flourish.)

A good property/cyberlaw connection for this week.  Courts often strongly discourage self-help in landlord-tenant disputes because of the risk of violence, even when the landlord and tenant have agreed in a lease that the landlord may retake if there's a breach of the lease conditions.  (Tomorrow's case:  Berg v. Wiley.) 

We just don't like vigilantes.  And we point to things like eviction summary proceedings as the place landlords should go.

In the copyright context, though, we're encouraging self-help by content owners by saying that technical copy protections are in effect the law of the land.  We say that it's too cumbersome to go to court and fight about each individual infringement.  Instead, just fix it through technology.  (Looking around, I find that Julie Cohen figured this out a while ago.  Maybe I can provide a different spin.)

In the broadcast flag setting, we've gone even further.  Not only are we saying that technical copy protection is the law of the land, but the FCC has attempted to claim that the flag has nothing to do with copyright.  So there's no chance that anyone could say "wait a minute, go to court before you say I'm infringing, don't prompt violence through self-help."  It's not about copyright.  It's about I Love Lucy.  It's about the American Way.  It's completely unconnected from legal liability rules.  "We have to use self-help," say the studios, "because otherwise broadcast television as we know it will cease to exist."

There's no contract in place between broadcasters and the public, as there was in the Berg case (a lease that had pretty clearly been breached).  There's no claim that copyrights are being infringed by non-compliant demodulators (because the FCC's jurisdiction would be weakened).  But self-help is being written into regulations nonetheless.  

Surely that's doubly wrong.  Self help is wrong in the first place (as the Berg court reminds us), but self help that claims no legal background for justification must be really wrong. 

I've been thinking about how to present a suite of offerings to law students -- a basic cyberlaw course, a seminar for case studies, a group of people working on papers -- and I think something that's missing is actual technical expertise (both in me and in many students).  We have long textual introductions in articles that explain, over and over again, how the DNS works, for example.  Surely it's time to standardize and expect that that knowledge as well as more sophisticated understanding.

So I think I'm going to suggest a technology course (or set of course-lets) to run alongside the basic cyberlaw course.  The technology course would be pass/fail, so as to eliminate anxiety.  It might consist of a few long sessions, or one short session a week.  I've seen a sample tutorial that is given at Harvard, and I thought it was great.  I'd like to have someone do something like that at Cardozo.

The comments I got on "what is cyberlaw" were extremely helpful, and I'm going to adopt a more modular, case-studies approach next year.  This is another authentic plea for commentary:

What should law students (or business students, or any graduate student in a relevant field) know about the internet, networks generally, or the personal computer?  How is this best taught? 

Last night, John Palfrey, David Johnson, and I gave the first roadshow presentation of the Accountable Net, a paper that we're working on. We talked to a group of Yale and Harvard cyberscholars. 

David led off, summarizing the paper wisely; John cleaned up, sagely noting what points we weren't taking on (e.g., the longtime discussions about whether the internet can be governed at all); and in between I said some things about the strengths and weaknesses of the paper.  A very intense discussion ensued.  All involved were brilliant and insightful.

It's too early to talk about the paper in any specific way on this blog -- the three of us are still thinking through what its scope will be, and we go up and down in our various assessments of its possible impact. 

But it's not too early to talk about whom to trust.  From my perspective, choices of private labeling/filtering systems, choices of private DRM, choices of platforms, choices of private content -- all of this is good.  I assume that competition will produce lots of choices for the future of communication online.  I refuse to be worried about allowing private firms to make these kinds of decisions for us if we're too technically incompetent to make them for ourselves.

(Note yesterday's NYT front-page story about how incompetent people are at arranging for their own online security, and how important it is that they learn about this; note that Cardozo's own Zach Rubenstein made a point of talking about how idiotic law professors are in particular on this subject.  But I digress.)

I also think that we're at a crucial moment of growing knowledge and understanding of individual power to form communities online.  Social software, brutal and blunt though it is right now, is taking off.  We're all linking wildly.  We're learning how to include as well as exclude.  We will someday have much more nuanced understandings of our own online networks, and we'll be accountable to each other as individuals for what we send and receive.

So I trust private firms, and I trust individuals, to come up with a scenario that is a viable alternative to some sort of locked-down, government-controlled future internet.  That alternative may be more filtered and more limited than the internet we have today, but it's better than the vision that the copyright industry and the Department of Homeland Security have of online life.

But I heard last night from several people who are not as optimistic about human nature and who do not want to privilege private firms (of any size or description) in providing forms of "governance" through linking/filtering tools.  There's a sharp split between those who trust governments and those who cannot imagine trusting governments (much less groups of governments) in the creation of rules about non-physical-harm-causing bits.  There's a deep divide between the common-carrier, we're-all-in-this-together-and-it's-got-to-be-fixed view of the internet and the let's-fix-it-ourselves view.

Yes, this is a simple and obvious set of points.  But it may be that we're not as distant from the "can it be governed at all" set of arguments as we'd like to be.  We'd like to say, "oh, that's SO late 1996," but in fact we haven't progressed very far.  Some people think: governments have a role when it comes to atoms, and have physical power over ISPs in their countries, but most online problems aren't easily addressable in any mass way (much less fixable) by courts and legislators.  Other people think:  nothing much has changed here, of course governments should be fixing spam and content issues and everything else under the sun, bring in more treaties right away.

And the two camps aren't drawing more closely together -- at least not yet. 

Tomorrow morning, at 10 am in 2141 Rayburn, the Subcommittee on Courts, the Internet, and Intellectual Property is holding a hearing on "Internet Domain Name Fraud -- New Criminal and Civil Enforcement Tools."  At that hearing, the Subcommittee will be considering a new Whois bill creating new penalties for people who provide false data when registering a domain name.

We need to raise our collective eyebrows at this bill (which was suddenly dropped the evening before this hearing).  The title of the bill is the "Fraudulent Online Identity Sanctions Act." (FOISA)

First of all, it includes in the category of "willful" trademark infringements those of a "violator. . [who] knowingly provided material and misleading false contact information to a domain name registrar. . ."  This is significant, because monetary damages for trademark infringement can be increased up to three times if the infringement is willful -- and usually "willful" is a question left up to a judge.  It's also significant that there doesn't appear to be a necessary connection between what the violator has done and the whois data issue. 

Secondly, the bill amends the Copyright Act by adding to the "willful" language for damages in that Act the idea that an infringement shall be considered to be willful where "the court finds that the infringer. . . knowingly provided material and misleading false contact information to a domain name registrar."  Again, this is significant because willful copyright infringement can mean increased statutory damages awards of as much as $150,000.  And the bill ties this amendment to cases of "infringement occuring at or in connection with an online location" -- clearly broad language intended to get at P2P file trading.  Again, usually courts decide "willfulness" on a case-by-case basis.

This is like sentencing guidelines for intellectual property law.

And, in fact, it is.

The final section of the bill adds a sentencing mandate for "falsification relating to domain names in connection with offenses."  Maximum penalty:  increased by 7 years if, "in furtherance of that offense," the defendant provided material and misleading false contact information to a registrar.

This is outrageous, and here's why.  As a matter of ICANN policy, domain name registrants in gTLDs under contract with ICANN (with certain limited exceptions) are required to provide, and registrars are required to publish online, data about themselves -- including phone numbers and email addresses for technical contacts.  The vast majority of registrants in gTLDs are small businesses and individuals.  Small businesses and individuals worry about privacy and spam, and it is well-known that WHOIS information is regularly mined by spammers. 

It is already unfair to force registrants to provide all this data, and as a result many registrants do lie.  IP interests view the WHOIS database (an artifact of a gentler, academic age, and not mandated by any law) as their special red telephone information mother lode.  So they want to ensure its accuracy by mandating hugely enhanced damages if someone fails to tell the truth.  Law enforcement also has this interest.

There are ways to help both IP interests and law enforcement to data by providing special access to approved entities.  But it won't be accurate.  It costs far too much money for registrars to verify this data, and individuals will, predictably, continue to lie.

As Officer Short Shrift says in the Phantom Tollbooth, we're all guilty, guilty, guilty, and should be sent away for six million years.

From "Music, the Brain, and Ecstasy":

"[Composers] who lose their youthful rebelliousness are in grave danger of losing their talent as well.  Such was the destiny of Mendelssohn and Saint-Saens.  After a youth brimming in confidence and daring, Mendelssohn essentially worked himself to death in academic life, all the while becoming more and more conservative in his outlook and more and more detail-oriented in his composing -- a perfectionism he described late in life as his 'dread disease.'  Saint-Saens suffered a worse fate, becoming so reactionary late in life that he schemed to quash the careers of youthful free spirits like Debussy.  He once wrote in regret, 'I ran after the chimera of purity of style and perfection of form.'  The innovative Berlioz, who knew Saint-Saens as a glittering prodigy, was less charitable:  'He knows everything but lacks inexperience.'"

 

In our musings about the accountable net meme/essay/road show, I and my co-authors have thought that a positive view of accountability (friends pointing friends to great content) might be a breakthrough.  Rather than just shielding ourselves from spam/spyware/security problems by only accepting bits from sources we can verify (something that technology is now making possible), we could also be pointed by our friends to great, worthwhile stuff.  Like blogs, but bigger.

The problem is, as Cory Doctorow reminded us three years ago, that people are lazy, people lie, it's hard to describe things, and no schemes are neutral.  So it might be difficult to rely only on the individual choices of content of people/ISPs you trust to get you to things you want to see. 

Of course, Doctorow's comment was about metadata.  And it might be that you could create an aggregated set of links that was really the collection of useful stuff that people you trust had decided to link to -- rather than stuff that had been described in some consistent way.

But people are still lazy, and they still do lie, and it's hard to get them to join block associations.  Some people join, sure, but not everyone.  Is it too optimistic to hope that virtual block associations will arise to point us to worthwhile material, while protecting us from destructive bits?  Maybe.  And our machines are increasingly dark to us -- incomprehensible boxes that swallow useful text without warning.  (For a different view of computers, read Dream Machine by Waldrop.  I just tried to link to it and lost this post, twice, so you're on your own in finding it.)

Anyway, the question is whether the accountable net can also be the pathway to everything useful and worthwhile online, and if this new net, built by us, can avoid the problems that make governments want to regulate.  Stay tuned -- road show begins this week.

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.