Aaron Swartz, RIP

I am really grieving the loss of Aaron Swartz, who killed himself the other day.

His family attributes his suicide in part to depression triggered by the federal CFAA prosecution for his JSTOR hack. JSTOR had withdrawn their charges long ago — but the federal government continued to prosecute. Who knows why — maybe the prosecutor(s) were hoping to expand the reach of CFAA (a bad idea for an already too-vague statute — twitter#reformCFAA), or maybe they were simply pissy because of previous run-ins with Swartz for liberating court records.

What really breaks my heart is that he was only 26 years old. He had spent his whole life since he was 14 years old trying to figure out how to make a more just world. He was largely focused on OUR ISSUES — access to information. He worked with Carl Malamud on PACER and access to court records. He worked on OpenLibrary. He organized, for christ’s sake, against SOPA and PIPA. He contributed to Wikipedia, and on the LawfulUse mailing list, and in scores of ways that I had heard of but wasn’t personally familiar with, and no doubt in scores of ways I never even heard of.

Any loss of a young person is a grievous one, and a loss of potential. Any loss of an activist hurts the movement, and takes positive energy out of the world. Any loss to suicide is a fucking waste that makes all the other losses so bitter.

* Larry Lessig, Prosecutor as Bully, at lessig blog

* Wikimedia Foundation, Remembering Aaron Swartz 1986-2013, wikimedia blog

* NYT, Internet Activist Is Dead at 26, NYT obit

UCLA v. AIME – more good news

The court finally issued its order dismissing the case in the AIME v. UCLA case. (The second amended complaint, in case you’re counting.) In short, it was another big victory for libraries. The court affirmed all its earlier reasoning, and deepened its reasoning in a few key areas.

Here’s a quick summary — more discussion will be out on all the usual places in the near future, I’m sure.

Sovereign & Qualified Immunity Defenses
– All claims against Regents and claims seeking damages against individual defendants in their official capacity were dismissed because of sovereign immunity.
– The officials were also protected by sovereign immunity for their supervisory activities.
– The officials also had qualified immunity because the actions taken were not clearly copyright infringement; where there is at least some reasonable ambiguity around fair use, one could reasonably believe the action is fair use, and not copyright infringement. “The Court finds that a reasonable person would not have known that the alleged conduct violated any clearly established rights pursuant to copyright law because it is ambiguous whether the use was fair use under copyright law.” More on that below.

Associational Standing
– The earlier holding that AIME does not have associational standing still applies.

Interpreting the License
– The earlier holdings on interpreting the license language still apply — the court had said the activity looked like a “performance” not a “distribution”. However, the court also examined the “distribution” claim, and made a couple of key holdings: (1) The streamed copy on the end-user’s machine is not “fixed” and does not therefore constitute a “distribution”. (2) The licensing agreement language prohibiting broadcast or transmission over an “open or Internet system” did not clearly preclude the closed intranet system. Conflict between the marketing brochure and the licensing language created ambiguity which could be exploited by the library.

DMCA Anti-Circumvention
– Very nice interpretation of the DMCA anti-circumvention: Because UCLA had lawful access to the content of the DVD, their circumvention was okay. Oddly, the Court didn’t look to the DMCA anti-circumvention exemptions.

Fair Use
– Intermediate copying (to put the files on the streaming server) was “incidental fair use”.
– The streaming activities themselves were also analyzed for fair use, in the context of the officials’ qualified immunity. Thus, the Court did not fully assess whether the streaming itself were definitively fair use; only whether they were plausibly fair use. The Court found only that there was at least a strong argument about fair use, and so the officials were not liable for copyright infringement. It is clear, however, that this Court felt the activities were fair use.
The court found that the purpose and nature favored fair use — no discussion at all.

The second factor — the type of work — was neutral because, although these were creative works, they were used in an “informational and educational context”.

The third factor was “slightly” against a finding of fair use because the entire work was streamed: The “time shifting” argument was “compelling” and tipped this toward only weighing “slightly” against fair use.

The fourth factor weighed in FAVOR of fair use because someone watching the streaming DVD in a classroom has no effect on their likelihood of buying.

Overall, this is a very helpful analysis from the perspective of libraries.

Non-Copyright Claims
– The various state common law claims were preempted by federal copyright claims.

The full opinion can be read at scribd.

outing the snoopers

Иконописиконографияиконимека мебелRosalind Picard, a co-inventor of software that can assess people’s expressions, is marketing the software for people with autistic spectrum disorders, and other users. However, she notes that:

Affectiva, Dr. Picard said, intends to offer its technology as “opt-in only,” meaning consumers have to be notified and have to agree to be watched online or in stores. Affectiva, she added, has turned down companies, which she declined to name, that wanted to use its software without notifying customers.

Steve Lohr, Smarter Than You Think: When Computers Keep Watch, NYT 2011/01/02.

While I have to acknowledge her consistency, it would be a more elegant bit of turn-around justice for consumers to be given those shy companies’ identity.

omg, government secrets not safe!

“I do think it’s true that the large contours of national and international policy are much harder to keep secret today,” said Steven Aftergood, who runs the Project on Government Secrecy at the Federation of American Scientists. “It would not be possible to conduct a secret war in Cambodia, as took place in the Nixon administration.”NYT 2010/12/12

Indeed. That’s kind of the point.

amidst a long dark hiatus of the blog, THIS

THIS. Glenn Greenwald on “The media’s authoritarianism and WikiLeaks”. Please note Greenwald’s excoriation of the widespread misstatement about what WikiLeaks has actually done: WikiLeaks has only posted 1269 of the 250,000 cables they possess. They have not “posted” or “published” all of them; they have not “dumped” them. They have published a very small, screened selection of the cables; and then provided copies of the entire set to media organizations. It’s just infuriating that almost nobody in the media gets this right.

And, for good measure, THIS, “a brief history of Operation Payback”.

“looks an awful lot like a political assassination”

I was interested to read this review of the new documentary, ‘Client 9′, about the Eliot Spitzer takedown. The reviewer, O’Hehir, describes it as, “an act that in retrospect looks an awful lot like a political assassination.” Ya think?

“Politician caught with pants down” and “White knight has feet of clay” are stories we’re all drawn to, almost by primal instinct. They satisfyingly confirm all our worst suspicions about human nature. But that primal satisfaction was used, in this case, to distract our attention from the takedown of one of the few American politicians devoted to fighting corporate power and ruling-class privilege, an act that in retrospect looks an awful lot like a political assassination.

public school & religious cultural center field trip

My partner sent me this article about the furor over a public school field trip to a local Muslim community center.

Folks seem to be upset because a few kids participated in religious observances / prayer. Personally I’m not too bothered by that — it appears to be voluntary participation at the event, and likely the field trip itself was voluntary. Prayers should not be sponsored by the school, but kids are free at school to engage in non-sponsored religious rituals should they choose; so why not on a field trip?

But what I am bothered by is the below paragraph, which doesn’t seem to have excited much controversy:

The 10-minute video, which weaves the words of a narrator and video of activities at the center, says that during the field trip, girls and women were instructed to stay at the back of the room during the prayer service — as per Muslim custom — and the boys were allowed to stand side by side with mosque members during prayers.

Letting kids see folks at religious observances, and learn about said religion, is one thing. Encouraging them, or requiring them, to participate in sex discrimination is quite another. wtf?!? Seriously, there are all sorts of institutions that are sexist and racist in practice. We ought not be taking kids to them. Find a Muslim cultural center that does not practice sex discrimination, or keep the kids out of the religious chambers in this center. Similarly if you have to cover a girl’s hair to take her into a Church of Christ cultural center, or make her wear a dress to visit an Orthodox Jewish facility — this is the definition of gender discrimination. And this religious-based sex discrimination is the imposition of religious practices and beliefs, not the voluntary prayer. I say again, wtf?

Let’s just picture the teasing between the kids about this enforced gender division, and how the individual kids felt to be sent to the front of the room or the back of the room based on gender.

Participating in prayers, voluntarily, is not illegal. Being discriminated against on the basis of your gender is illegal.

I say again, wtf?!?

stem cell research standing

The judge also finds that the two adult stem cell researchers who brought the case would suffer imminent and irreparable harm without the injunction because they would have to compete with embryonic stem cell researchers for research funds. That is absurd. Adult stem cell research is funded far more generously than work with embryonic stem cells. And there is no firm limit on the amount of money that can be spent on each. NYT editorial

How did this case not get knocked out on standing? Competing for funding? In two different fields ??? Absurd.

But for this absurdity we have to blame the D.C. Circuit Court of Appeals, not Judge Lamberth; it was the D.C. Circuit Ct. which granted the researchers “competitor standing”.

The Guidelines, by allowing federal funding of [embryonic stem cell] research, increases competition for NIH’s limited resources. This increased competition for limited funds is an actual, imminent injury. See Sherely, 2010 WL 2540358 at *5 (explaining that the increased competition that plaintiffs face is “substantial enough to deem the injury to them imminent”). There is no after-the-fact remedy for this injury because the Court cannot compensate plaintiffs for their lost opportunity to receive funds. Sherley v. Sebelius, D.D.C. 2010

Stacking the D.C. Circuit for years with pro-life Republicans has finally paid off!

The mind boggles: Any agency that funds more than one thing is open, now, to scrutiny by the possible fund-ees for potential legal suit. I suddenly see a future for all those laid-off New York law firm associates.

And, a fine example of how Congress works: Default BS caving in to lobbyists. In this instance, the “Dickey-Wicker amendment, that has been attached to annual appropriations bills for the Department of Health and Human Services since 1996″ — i.e., more absurd religious BS around abortion and fetal rights, affecting science and medicine.

And did the Obama administration tackle this problem directly? No, they avoided the problem the same way the other administrations have.

Disgraceful all around.

cite: quotes from NYT Editorial 8/25. opinion available at uscourts.gov (PDF).

and, this week in the destruction of our children’s future world

  • The Petermann ice shelf in Greenland (the northern-most glacier in the world) has lost a quarter of its mass, calving a 100 square mile iceberg now known as the “Petermann Ice Island (2010)”. Note that there is a “2010″ designation to distinguish this one from a smaller iceberg calved in 2008. Ed Markey had a good idea.

    Relevance to the pending apocalypse: Sign of global warming; loss of Arctic / sub-Arctic environments and habitats; influx of fresh water into the North Atlantic currents; Greenland is smaller.

    sources: AFP, wikipedia.

  • The drought and related fires in Russia continue, threatening, among other things, wheat prices and harvests. Relevance to environmental and social DOOM: Farmlands diverted from other crops to wheat; wheat prices increasing; and, of course, smoke from the fires may contribute to global warming as well as causing shorter-term respiratory problems.
  • Rising temperatures diminish rice harvests. It’s getting too hot at night for rice to grow. Yields have already diminished by 10-20% in some parts of the world, over the last 25 years. Need I mention that rice is the #3 staple food crop? And the primary staple food crop in Asia and Africa?
  • Rising food costs. Related to both the wheat & rice fiascos, the FAO has predicted that staple food prices will rise significantly, between 15 to 45%, over the next decade.
  • Genetically engineered pesticide-resistant strains of canola growing wild on roadsides. “Roundup Ready” and “Liberty Link” varieties have been found, and varieties resistant to both pesticides — indicating cross-breeding of the varieties. Why is this a problem? To the extent these are pest plants — weeds — they will have to be controlled with other, more toxic, pesticides, or controlled through agricultural methods (e.g., plowing) that adversely affect soil erosion. Plus, of course, once those now-wild genes start jumping, the problems will just multiply. As my partner has pointed out, one-in-a-million events happen millions of times with plant propagation.

Google just cries out for Tom Lehrer

Or rather, the phenomenon that is Google cries out for Tom Lehrer. Come out of retirement, Tom! Political satire is not obsolete, notwithstanding Kissinger’s Nobel ….

A colleague posted on a listserv a brief note about an article on “Google’s planes”. I thought, no, really? Google is buying planes? for streetview, I imagine — holy cow, what’s next?

Then I clicked on the link and was relieved to see it was about Google’s plans; the colleague had merely made a typo.

Or so I thought.

Cue ominous music: dunh dunh dunh.

Because, as that same colleague informed me, Google actually IS buying unmanned drones for aerial surveillance for Street View ! ! ! ! ! (I think screeching violins a la “Psycho” would be good here.)

Well, no, not really. A Google executive is buying it “for personal use”. Google categorically denies Street View applications, which shows that its PR department definitely is on the ball.

Sometimes reality is not nearly as weird as it should be.

my two-year-old, on copyright

Grabbing a couple of my paperback books, my two-year-old pages through them and engages in a lengthy monologue.

A: “This is about Mamiche’s copyright car. I’m just going to read this page and then go back to the cat page. Okay! Let’s go back to the cat page. This book is your book and it is about copyright. This is your book.”

me: “Thank you,” I say, accepting the book she hands me.

A: “Read it, and then it is my copyright. This is called Mamiche’s copyright. This is MY copyright, and this is YOUR copyright, and this is MY copyright. Here it is.” She shifts into a downward dog pose and holds the book below her. “I need my copyright. When I get my copyright I tell Mamala [ed.: that's me], ‘I need my copyright now!’”

I am speechless.

"nothing of this sort will happen in the future"

матрациFacebook has deleted “Everybody Draw Mohammed Day!”, a user-created page, and apologized to the Pakistani government which had blocked Facebook. A Pakistani minister said Facebook had assured them that “nothing of this sort will happen in the future”.

Yeah, good luck with that. And fuck you, Facebook. How about not knuckling under to paternalistic theocratic states that block Internet access for millions of people?

See:
* Huffington Post, 5/31; hat tip to boston-atheists mailing list.
* comicsalliance.com
* and, yes, wikipedia

You can’t see http://www.facebook.com/pages/Everybody-Draw-Mohammed-Day/121369914543425?ref=ts..plz which redirects you to facebook, nor can I find a cache of the site on Google or on the Internet Archive.

eviscerating Miranda

The Supreme Court on Tuesday released its decision in Berghuis v. Thompkins, reversing the 6th Circuit and eviscerating the simple bright line rule of Miranda: The police must advise suspects of their rights; for responses to police questioning to be admissible in court, the suspects must make a knowing, intelligent and voluntary waiver of those rights. This 5-4 decision, penned by J. Kennedy, eviscerates the letter of the law — it’s bright-line-ness — as well as the spirit of it — eliminating the incentive for cops to mistreat suspects through browbeating and other forms of coercive behavior.

hat tip to michele, who was listening to npr and found out the opinion was out, when for some reason the NYT failed to cover it, at least in any meaningful way …

celebrity sex tapes: tell us something we don’t know

Broadsheet @ salon.com is usually a pretty fair source for recycled news and commentary about women, gender, and sexuality.

But Tracy Clark-Flory’s recent commentary about yet another celebrity sex tape — Kendra Wilkinson, who I had to look up after reading this article — is possibly one of the most pointless articles on the phenomena I’ve ever read.

Clark-Flory gives a brief review of the facts — sex tape made; released for big bucks by ex-boyfriend who made the tape; Wilkinson trying to get a C&D on privacy grounds. She then reviews the Paris Hilton and Pamela Anderson sex tape litigation — primarily copyright litigations that were settled. Then she concludes that Wilkinson is not likely to succeed because the video has hit the Internet and quotes a lawyer who says if you don’t want your sex tape released don’t make it.

Wow, how insightful.

Could we please talk about the merits of the privacy argument, which is the only real piece of this that makes it a gender issue? (or interesting at all)

Or maybe talk about the phenomenon of women’s boyfriends releasing privately made sexual materials? How that implicates privacy law, as well as ethics and sexism? Instead of quoting a lawyer (male) who says if you don’t want your sex tape splattered on the Internet, don’t make one; why not tell women not to leave their sex tapes in their boyfriends’ hands ????