Category Archives: freespeech

first amendment, speech, the right to think, speak, & inquire

terry pratchett’s new secret novel

The widely quoted, hilarious response by Terry Pratchett to the Canadian court order [more from Michael Geist] applied to early purchasers of Harry Potter 6:

Terry Pratchett, by a strange coincidence, chose the H*rry P*tter launch day to issue a stern warning about his next Discworld novel: ‘Now that the bound proof copies of _Thud!_ are out, and will no doubt be winging their way to an e-bay near you, I would like to say that ANYONE WHO READS A WORD OF IT before publication day will be MADE TO SIT IN THE CORNER and their ENTIRE COUNTRY will be given DOUBLE DETENTION until every single person SAYS SORRY!!!!!’ So there.

quote in Ansible; also at forum.rpg.hu via boingboing via minilinks

guardsmark & fraternization

Some more thoughts on the recent NLRB decision restricting employees’ off-duty fraternization. Guardsmark, LLC, 334 NLRB No. 97 (2005) (decision in pdf):

The Board majority found the rule at issue here (in Guardsmark): “While on duty you must NOT … fraternize on duty or off duty, date or become overly friendly with the client’s employees or with co-employees” to be similar to a rule in Lafayette Park Hotel, 326 NLRB 824 (1998), enfd 203 F.3d 52 (D.C. Cir. 1999) which stated “Employees are not allowed to fraternize with hotel guests anywhere on hotel property.” A limited dissent felt that Lafayette Park Hotel‘s rule was too broad and so was this one. I see significant differences in the two cases.

  1. Lafayette Park Hotel is about employee-guest relations, and might reasonably implicate questions of adequate responsiveness to guests; Guardsmark is about relations between Guardsmark employees and between Guardsmark Employees and Guardsmark client employees.
  2. The Lafayette rule regulated only conduct at the workplace. The Guardsmark rule purports to regulate on- and off-duty conduct regardless of location.
  3. Lafayette used the phrase “fraternize”, which when used by itself is usually taken to mean “hang out”. The Board felt that “in context, the rule here is reasonably understood as prohibiting personal entanglements, rather than activity protected by the [National Labor Relations] Act.” Actually, it is pretty clear that this rule is meant to sound much stronger than the rule in Lafayette was meant to sound. It is significantly broader in the ways already mentioned, and its significantly broader in its description of the prohibited conduct. The rule says fraternize, adds date, and then adds “become overly friendly”. That phrase in particular is, in First Amendment terms, both overbroad and vague. From reading it, one has no idea of what sort of conduct is prohibited, and one senses that almost anything could be prohibited.

The Board attempts to justify this because of “heightened security concerns”. Yes, I’m sure a security contractor company can increase security by prohibiting friendships. Spartans and every army ever notwithstanding, security forces are just much more secure when their employees barely know the people they work with.

Aggghhh.

Related posts: 8/13

ip/cyber/1a stuff

  • Radikal Russ on Daily Kos posted about severe cognitive dissonance fostered by Grokster in the secondary liability rules:

    If a company makes a product that is inappropriately used to illegally copy a movie, that company is liable. If a company makes a product that is inappropriately used to illegally kill a human, that company is not liable. What’s the common logic holding these disparate concepts together? Massive corporate special interest money. Welcome to your government of the corporations, by the corporations, and for the corporations, where a pirated copy of “Hollywood Homicide”* is bigger threat than an actual Hollywood homicide.

  • EFF is running a 15 anniversary blog-a-thon, in which people post about how they became information radicals (my phrase). Aggregators: Technorati and PubSub. [me too]
  • Nitke v. Ashcroft: First Amendment / CDA decision. Good commentary by Wirenius (plaintiff-side attorney). Other links: copyfight, rounding up various links; Wendy Seltzer, posting the decision.
  • NYT coverage of NY payola settlement with Sony. Check out some of the details at the Village Voice (7/26). So, what we have is a consolidated radio industry that generates its playlists in national headquarters takes payola for playing hits that nobody would otherwise want to hear. If I tried to devise the crappiest possible way of using scarce airwaves, seeking out talent, and maximalizing human fulfillment, it might look something like the current recording / radio industry.
  • more stuff on the PTO denial of the “Dykes on Bikes” TM: Cathy Resmer on the DTWOF blog. As a dyke, I can attest that I don’t find “dykes on bikes” at all offensive … PTO, please don’t protect me.
  • the pensacola news journal editorial about wal-mart’s refusal to carry their paper because of an anti-wal-mart column is a must-read. [link from copyfight] (PS: Wal-Mart lifted the ban & apologized [link from librarian.net])

judith miller, the NYT, and journalism

from slate: Programming the Slammer Film Festival – Readers choose the most enlightening fare for Judith Miller. By David Edelstein

7/8 update: here’s a couple more good commentaries: avedon carol [sideshow] and Rosa Brooks in the LAT. Money line from Rosa Brooks:

If a source with a clear political motivation passes along classified information that has no value for public debate but would endanger the career, and possibly the life, of a covert agent, is a journalist ethically permitted to “out” the no-good sneak? You bet. And if the knowledge that they can’t always hide behind anonymity has a “chilling effect” on political hacks who are eager to manipulate the media in furtherance of their vested interests, that’s OK with me.

Word.

The Forwarding-government-propaganda privilege: Somehow, just not so compelling.

… In the interests of fairness, a few thoughtful pieces on protect-judy side: billmon wrestling with his desire to justify jail for judy … And the Columbia Journalism Review (Jan/Feb 2005) ran a good article outlining the pro-Judith-Miller position and the general threats to the press that have happened of late. The author asks concernedly at the end: Would people rise up in defense of the reporters’ privilege, and reporters, if these two reporters go to jail? And answers his own question: I didn’t think so. The article details (a) various attacks on the “fourth estate” by government in the last few years; and (b) why people distinguish what Judith Miller is doing from what they want to see protected.

… But now that I’m thinking about I just have to get in 2 or 3 more cents: From one perspective, Judith Miller may, indeed, be just another front in a general way by the state on the press. As such, Judith Miller should have been just another footnote, an example of when the RP shouldn’t apply, or why it can go too far, or why good privileges sometimes produce bad results … So the problem is not with Judith Miller invoking a reporters’ privilege & going to jail for it. The problem is that the NYT chose to put forward Judith Miller as the poster-child for the reporters’ privilege, and chose not to profile and highlight and defend the other cases. Hard cases make bad law, as they say. And the NYT chose a hard case to make law on: hard as in not appealing, factually bad, not getting to the essence of why the reporters’ privilege is important. Why did the NYT do that? I think the NYT is trying to make itself look good: Oh, look how we defend freedom of the press.

Putting Judith Miller together with the NYT’s actual reporting on freedom of the press issues, I don’t see a very pretty picture. It looks to me like the NYT ignores the broader issue of reporters’ freedom when it could actually do some good, and instead puts forward the case only when its narrow self-interest is involved. If the NYT was actually interested in freedom of the press, for instance, then why not more coverage and pressure and amicus briefs on behalf of journalists who are protecting sources for important information we needed and otherwise would not have had? Or for that matter, why not more coverage of the record numbers of dead reporters in Iraq? The targeted bombing by the US of Al-Jazeera? Etc. ….

“Now, you say you love me. Well, just to prove, you do, you can cry me a river; I cried a river over you.”

8/12 update:

Another good post on the topic, by Charlie Anders of Other Magazine:

Actually, Anita Bartholomew had it right: the real reason not to give Miller the award is that she was protecting confidential sources who were trying to silence whistleblowers instead of blowing the whistle themselves. It’s a pretty basic distinction, and one the mainstream media seems to have forgotten. Back when I was starting out as a reporter, we were warned to use confidential sources sparingly and to be aware of their agendas if we did use them. If your source works for the government and is pushing the government’s agenda (or ditto for a corporation) then he or she is just a cowardly shill.

people take this IP stuff so seriously

An English IT firm fired a consultant after he commented on Grokster on BBC, and the firm had this to say:

“The decision to terminate his employment was made in order to defend our legitimate business interests. Mr Hanff has declared that he is opposed to copyright and intellectual property laws. Since much of our business is based around the protection of our copyright and intellectual property, we consider our dismissal of Mr Hanff entirely justified and appropriate.”

Techie fired over Grokster comments on BBC [silicon.com]

If the company fired him because he was using their resources to host his bittorrent site, that would be one thing. The article mentions that the MPAA is suing him for hosting a bittorrent site. But no, it appears from the company’s statement that it fired him for his “opposition to copyright and intellectual property laws”.

Based on this statement, it appears that Aldcliffe Computer Systems in Lancaster is “defend[ing] [its] legitimate business interests” by enforcing a thought code. That doesn’t sound like good business practice to me. The company is crafting a workforce of orthodox thinkers and yes-men. Who would want to work for a company that requires its employees to shape their personal beliefs in accord with whatever internal policies are being crafted that week?

Employers have successfully infiltrated the private lives of workers by requiring drug tests and monitoring email. But Aldcliffe Computer Systems thinks employers should also be able to colonize their minds.

I feel a science fiction story coming on …

first amendment monopolies for broadcasters

A few months ago (how did I miss this?) CoCo (Constitutional Code in the Realm of Culture) posted about an FCC paper that basically kills the scarcity doctrine, thereby significantly undercutting the rationale for FCC regulation of broadcast airwaves.

CoCo correctly points out that this has both a big potential plus and a big potential minus: (a) first, the plus: the government has less justification for federal obscenity & decency regulations; but (b) the minus: broadcast owners have more justification for trying to ditch things like must-carry rules, the fairness doctrine (if it existed anymore), and other aspects of state regulation in the public interest. (I distinguish between obscenity/decency regulations and the public interest but it must be said that some folks would put both items together, in either the plus or minus columns depending on their politics. I’ll call them both “public policy” regulations, reserving the right to distinguish between good and bad public policy regulations.)

But the so-called First Amendment rights of broadcast corporations stem from the government-granted monopoly they have over particular chunks of the airwaves. So, yes, a dead scarcity doctrine undercuts the rationale for the public policy regulations. But it also undercuts the rationale for the government-granted monopolies in the first place.

So imagine this admittedly unlikely scenario: the FCC gets out of the licensing, as well as the content-regulating, business altogether. Be conservative and leave the FCC the role of standard-setting body, establishing broadcast ranges for this and that type of broadcast. What might the broadcast environment look like? Lots of broadcasters, competing with each other for the airwaves. Encrypted content delivered and decrypted by commercially available equipment. Cooperative groups of content providers? Imagine all the benefits of low power FM, cited by media activists, church groups, union organizers, and the like, but available to all. Sounds pretty good to me. If the FCC isn’t acting as procurer and police for large corporations, handing out and enforcing monopolistic control over chunks of the airwaves, then maybe we don’t have to worry so damn much about the so-called First Amendment rights of large corporate entities.

So, the scarcity doctrine is dead. Long live the age of plenty.

Et tu, Louisiana?

Not content with their shared top-ten ranking in teen births, Louisiana State Rep. A. G. Crowe (R-Slidell) wants Louisiana to join with Oklahoma and Alabama in segregating (or banning) gay books.

Good for you, Rep. Crowe. You tackle those problems that Louisiana is facing (high cancer mortality rates, high teen pregnancy rate, low education rates, high infant mortality rate) by, umm, micro-managing library collections. Let me know how that works out.

hearing on federal prosecution of artist

Federal prosecutors responded yesterday (5/17) to a motion to dismiss federal wire fraud charges against artist Steven Kurtz (Critical Art Ensemble). This bizarre & ridiculous prosecution continues against all common sense, which I can only guess is par for the course for the Ashcroft/Gonzalez DOJ.

derived from: ap 5/17 and caedefensefund.org press release 5/17

2008/4/25 update: Nice to be able to come back to something with a happy ending, even years later. Sivacracy reports that the Chronicle of Higher Education reports that the criminal indictments were dismissed. Finally some freakin’ justice.

Hirsch seems confused about the point of documentary interviews

The documentary film weblog reports that an attorney who was interviewed for “Super Size Me” is now suing on defamation etc. for using his filmed quotes in the film.

… shall I risk re-publisher liability for quoting the allegedly defamatory statements? Yes, I’m feeling willful today (or perhaps just very very dubious about the likelihood of success on the merits of this litigation): According to the NY Observer March 13 article,

In his only appearance on camera, Mr. Spurlock asks Mr. Hirsch about his motivation for being involved in the McDonald’s litigation. Mr. Hirsch’s reply? “You mean, motive besides monetary compensation?” He then added, “You want to hear a noble cause?”

Dude. You were being filmed for a documentary. You didn’t think that the footage might actually get used? … I don’t think that this sort of lawsuit is going to make people look more charitably on the underlying McDonald’s-contributes-to-obesity lawsuit.

ip / info round-up

i’ve been out of the loop for about an entire month while i moved, battled colds & flus & snowstorms, and made it thru the winter holidays … so i’ll be logging a month’s worth of interesting articles & commentaries. luckily it seems that courts, legislators & commentators have also been slower than usual the last few weeks:

  • 1/13: EFF has now filed its grokster brief in the US Supreme Court.

  • 1/12: iPac has launched its jailed for a song campaign to bring attention to the ongoing & increasing criminalization of copyright law. [link from jason schultz 1/12]

  • 1/11: maine today covers the Maine Supreme Judicial Court case about a guy who created a hotmail account in someone else’s name. Anonymous free speech, says EFF, Public Citizen, the ACLU, and Defendant Doe. Fraud, says the plaintiff.

  • 1/10: Apple has been sending C&Ds to apple blogs for breaking news about new apple lines. If apple isn’t careful, its highhanded tactics will lose it some hipster street cred.

  • My people (or so very old family history would have it) are picking a fight between the Cherokee Nation and the GPL. [linux business week 1/10] [thanks to Brian Carver for the link]

  • bill gates thinks IP reformers are communists. What an ass.

    C|Net: In recent years, there’s been a lot of people clamoring to reform and restrict intellectual-property rights. It started out with just a few people, but now there are a bunch of advocates saying, “We’ve got to look at patents, we’ve got to look at copyrights.” What’s driving this, and do you think intellectual-property laws need to be reformed?

    BG: No, I’d say that of the world’s economies, there’s more that believe in intellectual property today than ever. There are fewer communists in the world today than there were. There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don’t think that those incentives should exist.

    And this debate will always be there. I’d be the first to say that the patent system can always be tuned–including the U.S. patent system. There are some goals to cap some reform elements. But the idea that the United States has led in creating companies, creating jobs, because we’ve had the best intellectual-property system–there’s no doubt about that in my mind, and when people say they want to be the most competitive economy, they’ve got to have the incentive system. Intellectual property is the incentive system for the products of the future.

    [news.com 1/5]

  • 8th circuit online privacy victory: The RIAA has to actually provide some evidence of copyright infringement, and sue them individually, before it can gain access to individual’s ISP records. This follows the DC Circuit Verizon decision. [eff press release]

  • 12/21: mark pesce on bittorrent & the shutdown of suprnova.org and torrentbits.com: published on Napsterization 12/21. pointer from derek slater

  • dec: Did I mention how depressed I am that Pennsylvania passed the stupid law banning municipalities from providing their own broadband services? At the behest of Verizon, which was alarmed when Philly started plans to provide its own broadband to the entire city. Grr. [news.com 12/1 and 1/4]

reading, censorship & theocracy in the US

… Sometimes, fighting for freedom of access to information seems shallow in comparison to the struggle against poverty and inequality, or against government-sponsored murder and torture, or even the struggle to survive in the face of hurricanes and tsunamis and floods. But ultimately I believe it’s all the same struggle.

… Philip Pullman recently wrote an essay, published in The War on Words The Guardian [2004-11-09] and previously apparently in Index on Censorship, about reading, dogma, and theocracy in Bush’s US. So timely, as the world faces so many incidents of censorship and outright ideological attempts to control education and access to information. A few notes:

My third and final charge against the theocracies, atheist or religious, and their failure to read properly is this: that the act of true reading is in its very essence democratic.

Consider the nature of what happens when we read a book – and I mean, of course, a work of literature, not an instruction manual or a textbook – in private, unsupervised, un-spied-on, alone. It isn’t like a lecture: it’s like a conversation. There’s a back-and-forthness about it. The book proposes, the reader questions, the book responds, the reader considers. We bring our own preconceptions and expectations, our own intellectual qualities, and our limitations, too, our own previous experiences of reading, our own temperament, our own hopes and fears, our own personality to the encounter.

I like this analyis of reading. The observation isn’t unique, but tying this form of reader empowerment into broader exercises of democracy and empowerment is sharp.

One of the most extraordinary scenes I’ve ever watched, and one which brings everything I’ve said in this piece into sharp focus, occurs in the famous videotape of George W Bush receiving the news of the second strike on the World Trade Centre on 9/11. As the enemies of democracy hurl their aviation-fuel-laden thunderbolt at the second tower, their minds intoxicated by a fundamentalist reading of a religious text, the leader of the free world sits in a classroom reading a story with children. If only he’d been reading Maurice Sendak’s Where the Wild Things Are, or Arnold Lobel’s Frog and Toad, or a genuine fairy tale! That would have been a scene to cheer. It would have illustrated values truly worth fighting to preserve. It would have embodied all the difference between democratic reading and totalitarian reading, between reading that nourishes the heart and the imagination and reading that starves them.

I have a minor quibble with the substitution of the term “theocratic” for what might be more properly termed “dogmatic.” Theocratic would be a special instance of dogmatic. I understand, I think, what Pullman is getting at; he wants us to see the common strands between theocratic dogmas and other forms of ideological dogmas, such as the Soviet Union. The US’ current dogma might fit somewhere in the broader slate even if it doesn’t quite line up with Iranian-style theocracy. But as a US citizen who is quite concerned about actual theocracy, I want use of terms to be precise. Just a nitpicker, I guess. I suppose I wouldn’t care if I didn’t have particular beefs with the use of religion to create and buttress political structures. But among dogmas, theologies are particularly prone to abuse.

Pullman also quotes Karen Armstrong’s recent The Battle for God: Fundamentalism in Judaism, Christianity, and Islam:

There is a good description of two different modes of reading in Karen Armstrong’s The Battle for God: Fundamentalism in Judaism, Christianity and Islam (2001). Armstrong is eloquent on the difference between mythos and logos, fundamentally different ways of apprehending the reality of the world. Mythos deals with meaning, with the timeless and constant, with the intuitive, with what can only be fully expressed in art or music or ritual. Logos, by contrast, is the rational, the scientific, the practical; that which can be taken apart and put together again; that which is susceptible to logical explanation.

Both are necessary, both are to be cherished. However, they engage with different aspects of the world, and these days, says Armstrong, they are not equally valued. Her argument is that in modern times, because of the astonishing progress of science and technology, people in the western world “began to think that logos was the only means to truth, and began to discount mythos as false and superstitious”. This resulted in the phenomenon of fundamentalism, which, despite its own claims to be a return to the old true ways of understanding the holy book, is not a return of any kind, but something entirely new: “Protestant fundamentalists read the Bible in a literal, rational way that is quite different from the more mystical, allegorical approach of pre-modern spirituality.”

These notes lead to the heart of Pullman’s observations, which are that the current US government is increasingly dogmatic in dangerous ways. It’s true that those who see fit to govern us seem to have less of a sense of humor than ever. I’m reminded of John Ashcroft installing covers for the naked lady statues at DOJ (for $8000, apparently!). (U1) More recently, just a day or two ago I saw this story about Mississippi county library officials banning Jon Stewart’s America (The Book). The district library director was offended by the photoshopped photo of the naked US Supreme Court, which asks readers to “restore [the justices’] dignity by matching each justice with his or her respective robe.” Surely, the inability to appreciate absurdity and satire is another feature of the dogmatic … It’s always depressing when a librarian falls short of the standards that so many of us uphold so well. Robert Willits, library director for Jackson & George counties, said “I’ve been a librarian for 40 years and this is the only book I’ve objected to so strongly that I wouldn’t allow it to circulate.” Jesus. Mississippi really is backwards if this was the most offensive thing he’s seen in 40 years. Or is it that he was particularly offended by the use of nudity in the satiric context? … Certainly it wasn’t the prurient aspect of this nudity that appalled, since the sight of 9 naked people, not one of whom is less than 55 years old, isn’t really calculated to arouse prurient interest in most folks today. [update 1/12: after complaints the library board un-banned the book]

I remembered recently the story an acquaintance of mine told me about her youth. Her parents were embedded in an evangelical church, hung up on issues of satanism. At one point her parents became concerned about her choice of reading materials — science fiction, fantasy, comic books, historical romance novels — convinced that some of it at least was satanic — and literally began burning her books. After she pulled some books out of the flames and pointed out to them that they were classics, or not satanic, or were in some other way significantly misapprehended, her parents changed tactics. They demanded that she herself sort the books out according to a standard they adapted from the Supreme Court case Miller v. California: that the books she kept had to have redeeming literary or other social value. Her parents weren’t concerned with just the prurient interest, either, apparently; her books had to attain some higher value other than mere non-prurience in order to be redeemed.

She was required to sort her books according to this metric, and turn over a good portion of her collection of “escapist” fiction with no “redeeming values” to be destroyed. … Forcing someone to apply another’s standard to their own punishment is a tactic of humiliation, of course, used by authoritarians to make the victim complicit in their own victimization. …

Redeeming. Suggesting that the books were damned to begin with, and had to be redeemed by some especial value. Damned, I suppose, because they were for entertainment, or purposes other than religious education. Redeemed by being for some other acceptable purpose. The Supreme Court in Miller damned books (and films, etc.) for their prurient value. A hang-over of our Puritan religious past, a distaste for the sexual. The Court let materials escape if they had other redeeming values — even prurient materials may be redeemed by some other benefit to society. But change the test just a little, as my friend’s parents did, simply drop the prurience requirement, and you’ve shifted the burden from some literature or art to all literature or art. All literature or art is now guilty unless proved innocent, damned unless redeemed.

Carry that notion a little further, and measure science and education and medical information on the same yardstick. Now you’re no longer balancing science education in the schools or medical information against the truth of the science — now you weigh it against some other scale, in which there is a subjective redemptive value. We don’t teach the truth because of its truth. We teach because we want to control the ideological outcome. Now, advocates of so-called intelligent design can feel outraged, hurt, treated unfairly, because all they want is equal time, a fair share of the educational pie. Critics of dispensing information about birth control and the efficacy of condom use for disease prevention can weigh the information not against its accuracy but against their values.

In this view, education isn’t about truth. Education is about ideology, and the intelligent design folks deserve just as much opportunity to control the instillation of ideology (“education”) as the scientists and teachers. Learning, truth, education, truth, aren’t valued for themselves. In fact they’re damned because they cause us to question the values that redeem.

Pullman observed in the His Dark Materials trilogy (The Golden Compass, etc.) that all of history is a struggle between those who want to disseminate knowledge, and those who want to control and limit that dissemination. Between those who trust only themselves with information — and consequently with freedom — and those who think that information and freedom and power belong to all.

Another acquaintance of mine was recently wrestling with the question of whether or not to have an abortion. Her circumstances were difficult, but she had always identified as “pro-life,” and most of her close friends and family members felt similarly and encouraged her not to have the abortion. Ultimately they joined, though, in supporting her; they believed that she would do the right thing, whatever it was; they trusted her to make the right decision. I was angry about this, although I didn’t discuss it with her. It’s easy to trust people you know. But who are they to make those decisions for all the people they don’t know? Why, in fact, should the people that pro-lifers don’t know have to trust the pro-lifers to make the right decision for them?

The Bush administration is just one manifestation of this greater historical tendency. We ought to weigh this manifestation properly — hard to do, sometimes, when you’re in the thick of it. The Bush administration didn’t start the fear; but it is capitalizing on it, and building on it, and strengthening that tendency in the US and around the world. The push is away from multilateralism, away from respect of others, and towards unilateralism, towards limiting trust to oneself and one’s clan. The control of people’s access to information is a symptom and a sign, but it is also a means towards the end of controlling people. You don’t trust people to do the right thing with information, and by keeping it away from them, you prevent them from doing what the wrong thing.

And since all our struggles — whether against economic injustice or the effects of natural disasters or the repression of governments — are carried forward by individuals, then trusting individuals with information, empowering them through information, and letting people build their own tools is still the best way to further social change. … which of course is why, as Pullman observes, governments and hierarchies such as the Bush administration are always so interested in stifling knowledge and education transfer. Keep the knowledge, keep the power, don’t trust anybody else to do the right thing.


Updates

U1: 2005/July/9. Replacement Atty. General Gonzalez quietly undraped the statues, returning a little bit of sanity to the otherwise indecent DOJ.

patents dot bust

Jason Schultz (EFF) has a new article in Salon.com [subscription or ad] about the problems of patents (mostly software or business method, I’ll note) being sold with dot-bust companies. In a nutshell, patents lock up ideas rather closely; when patent-holding companies go bust, those patents are placed in the hopper with all the other “property”, disseminated to buyers, creditors, etc., who may not have the know-how, wherewithal, or interest in using those patents. But nobody else can use the knowledge locked up in those patents, either. In a worst-case scenario, the new “owners” of the patents use them as part of a hold-up scenario.

… My soapbox: If we returned to the good old days, before the advent of automatic-assignment clauses in all employee contracts, then inventors would own the fruits of their own intellect, and companies would have non-exclusive licenses to use those patents. The fruit of an inventor’s genius would not be locked away from all possible public access and use solely because the inventor’s employer had financial problems.

Catherine Fisk (with Chicago-Kent College of Law) has done great work detailing the 20th century trends in taking IP away from authors & inventors, and assigning it to their employers. Removing the ‘Fuel of Interest’ from the ‘Fire of Genius’: Law and the Employee-Inventor, 1830-1930, 65 U. Chi. L. Rev. 4 (1998) is one of several related papers she’s written on the subject.

christian censorship

The film adaptation of Philip Pullman’s “His Dark Materials” is being edited to “remove references to God and the church.” Apparently Pullman is understanding, and recognizes that “You have to recognise that it is a challenge in the climate of Bush’s America.”

The book is all about “God and the church.” If they cut that out, then what the hell are they making the movie about? New Line, New Line … thank you for making LOTR into three films instead of two, but WTF are you doing?

BBC NEWS | Entertainment | God cut from Dark Materials film [linked from whumpdotcom 12/8]

ip/speech round-up

  • two major networks who are permitted to broadcast their for-profit programming and advertisements, for free, over the airwaves, have decided that, in accordance with their “no advocacy” policy, they will reject ads from the Universal Church of Christ (UCC) which, according to them, is “advocacy”: The ads say: “Jesus didn’t turn people away. Neither do we.” NBC thinks that message “clearly implies that other people do [turn people away].”
  • City of San Diego v. Roe – First Amendment public employee speech case. [opinion, linked from & analyzed by Goldstein & Howe SCOTUS blog *] The Supreme Court held that a cop’s video of himself masturbating on eBay was not protected speech. Instead of just applying the Pickering test and finding no protection on the facts, the Court also continued to build up the “legitimate news interest” test. The new test seems to protect only speech that is of “public concern”, meaning “that which is of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” Sigh.
  • Pew released a survey of artist attitudes toward online swapping. [link from ip news blog]

* This blog, otherwise quite helpful & informative, has an extremely annoying permalink function. … How annoying is the “link to this post” function on this weblog? Very. It unnecessarily replaces a built-in feature with a its own way of doing things. To copy the URL, you might think that you could do the ordinary — right-click [or CTRL-click if you’re not using a 2-button mouse with your mac] on the text labeled “Link to this Post” and select “Copy Link to Clipboard” from the menu. But no. On this blog, doing that pastes in a javascript function and the filename. The javascript function actually requires you to left-click on the “Link to this Post” text. This then displays a pop-up box with the URL. The pop-up box says “Hit CTRL+C to copy the URL below.” (Note to designers: You wouldn’t need instructions if you used standards that people already know — like the freakin’ default right-click menu!) Of course those instructions are platform-specific, so they actually confuse non-windows users. On macs, the copy command is apple+C [aka COMMAND+C]. But as a mac user you have to wonder: did they write a jscript to map to those keys? Or is this windows-specific? Sometimes requiring failed experiments. …

alabama determined to drive itself into a deep, deep hole

god what a great state i come from. on nov 2 they — unbelievable — actually retained the state constitutional language mandating segregation. now this:

MONTGOMERY, Ala. (AP) – A lawmaker seeking to ban gay marriages also wants to prohibit state money from being spent on any materials or programs that “recognize” or “promote” homosexuality.

Republican Representative Gerald Allen says, quote, “We have a culture that’s in deep trouble.”

But Representative Alvin Holmes, a Democrat, says Allen’s measure was an unconstitutional form of censorship aimed at enhancing Allen’s standing with the right-wing conservatives.

If the bill became law, public school textbooks could not present homosexuality as an alternative lifestyle, college theater groups would not be able to perform plays like the Tennessee Williams classic “Cat On A Hot Tin Roof” where homosexuality is a theme, and public school libraries could not display books that include lesbianism like Alice Walker’s “The Color Purple.”

Allen says the method of weeding out objectionable material and programs was still to be determined. His bill has been prefiled for action in the 2005 session.

— AP, 2004-11-30 Bill Would Bar State Funds Used to Foster Homosexuality

great posts on this issue:

post-thanksgiving ip & info news

  • Australia & the US continue to work on the bilateral Free Trade Agreement. Australia is now set to implement a notice-and-takedown rules despite criticism of their impact in the US. [news.com.au 11/30]

  • Another due process victory — the RIAA can’t sue the nation en masse, even if they do think it’s cheaper by the dozen/gross/other large quantities. [wendy seltzer reports on the Texas case [11/27]]

  • fluffy spending bill includes funding for copyright czar. p2pnet reports that the Hollywood Reporter reports that:

    Under a “massive $388 billion spending bill Congress approved during the weekend” the president can appoint a copyright law enforcement officer whose job is to coordinate law enforcement efforts aimed at stopping international copyright infringement and to oversee a federal umbrella agency responsible for administering intellectual property law, says the Hollywood Reporter.

    The legislation is part of the bill funding Justice Department operations and for the first time funds the National Intellectual Property Law Enforcement Coordination Council, says the story, continuing ominously:

    “NIPLAC is charged with establishing policies, objectives and priorities designed to protect American intellectual property overseas and to coordinate and oversee implementation of intellectual property law enforcement throughout the government. While NIPLAC has been around since the early 1990s, it has never done anything, and appropriators hope that giving the organization $2 million and a new charter will make the office effective.”

    I like the p2pnet description of the story as “ominous”.

    You know, I know we live in the age of the imperial presidency, and we have our own domestic nobility, but why do we keep using the word czar? So annoying.

  • The wacky Dutch courts have now held that perfumes are copyrightable: They are “not only measurable by the senses but also … concrete and stable enough to be considered an authored work, as intended in copyright law”. Lancome v. Kecofa. [In this international world, I’m linking to the story in The Scotsman, 11/25.] This story was rife with interesting details including the fact that few smells have been trademarked in “this country” (Scotland? the Netherlands? unclear) except for “darts smelling of beer”. Don’t darts smell that way naturally?

    Apparently the Dutch Copyright Act of 1912 includes “works of applied art” and “generally any creation in the literary, scientific or artistic areas.”

  • ‘Tis the season: Rudolph Reserve Beer becomes Rude Elf Reserve Beer. This was described as a “copyright fight” by AP 11/25, but surely must be a trademark dispute.

  • Okay, this is not copyright, either, but trademark / right of publicity. The Nelson Mandela Foundation is upset over a plan to import gold coins with Mandela’s image on them. [South Africa, The Star, 11/23]

    What does it mean that so many people are calling all these different claims copyright? It’s like “copyright” has become the new “intellectual property.”

  • The E.D. Pennsylvania ruled on Nov. 12 that copyright management information (CMI) must be proximate to the copyrighted material. Reuse of images from a book, and removing just the copyright statement from the beginning of the book, did not constitute a violation of the DMCA’s CMI provisions.

  • Another DMCA case: Perfect10 is suing Google for indexing its copyrighted images. [complaint @ wendy seltzer’s site]

  • N.D. Cal. judge Maxine Chesney dismissed Kahle v. Ashcroft [11/24] [c|net 11/24. The Internet Archive plans to appeal.]

  • More reality show idea conflicts: This time the plaintiffs are suing TBS & Evolution Film & Tape, alleging that their development of a transgender reality show “He’s a Lady” infringes their copyright in a similar work titled “Sex Change.” They also charge breach of implied-in-fact contract and unfair competition. [businesswire 11/23]

    Oh. My. God. A, no copyright on ideas, please dismiss this claim right away, court. The article says that they “received protection from the U.S. Copyright Office” for their treatment. No ideas, no ideas, no ideas.

    B, how offensive is this:

    Both reality series are about a group of male contestants who believe they are in a competition to become an “All-American Man.” It is soon revealed, however, that they are actually going to be transformed to look and act like women and compete for a monetary prize – living together in a “doll house,” performing stereotypical female tasks and being assessed by a panel of judges – climaxing in a beauty pageant competition.

  • On the First Amendment side of things, Wired has a great new story explaining how recent Senate Commerce Committee, Science, Technology & Space Subcommittee hearings have shown that Internet porn is the worst scourge this nation has seen since CIA-sponsored heroin. [wired 11/19]

    “Pornography really does, unlike other addictions, biologically cause direct release of the most perfect addictive substance,” Satinover said. “That is, it causes masturbation, which causes release of the naturally occurring opioids. It does what heroin can’t do, in effect.”

    The internet is dangerous because it removes the inefficiency in the delivery of pornography, making porn much more ubiquitous than in the days when guys in trench coats would sell nudie postcards, Satinover said.

    Sen. Sam Brownback (R-Kansas), the subcommittee’s chairman, called the hearing the most disturbing one he’d ever seen in the Senate. Brownback said porn was ubiquitous now, compared to when he was growing up and “some guy would sneak a magazine in somewhere and show some of us, but you had to find him at the right time.”

    Thanks Sen. Brownback for sharing stories from your personal experience. As for Santinover, he is an advisor for a gay-cure group — clearly an unbiased social scientist with no axe to grind. Kudos to Wired for interviewing Carol Queen for the article.

    This all reminds me of a reading I attended some years ago, in which Susie Bright read dirty bits from the Meese Commission on Pornography report. [wikipedia; full-text] Can we have Susie Bright do all the CSpan coverage of these hearings? Please?

  • What is with the FCC these days? Or for that matter with the general government fascination with “indecency” and porn? It would take an entire company of bloggers to keep up with the stories. The mid-November indecency story du jour was the American Family Association’s [turn head to left, spit ceremoniously] attack on ABC’s broadcast of “Saving Private Ryan”, followed swiftly by the Monday Night Football skit or ad or something related to “Desperate Housewives.” Good grief. God forbid our coverage of live celebrations of violence and sexual exploitation (the cheerleaders and beer commercials) should be interrupted by, well, more sexual exploitation.

    The only good thing I saw about this recently was a report about a FOIA request to the FCC regarding its many indecency complaints regarding one of the recent TV incidents. I think there were a hundred or so total but maybe I’m off by a factor of 10? At any rate, there were fewer than the FCC actually claimed. And the really interesting thing is that almost all were form-generated. Total discrete complaints generated by spontaneous citizen outrage: 3. (now where did I see that article? sometime over the long food-stuffed thanksgiving weekend. darn darn darn. when will i remember to save these things when i see them?) [oh right: it was frank rich in the nyt 11/28 on “the great indecency hoax”]

info news

  • Sex research is stigmatized. [nyt 11/9] Yeah, not least because of the Bush Administration.

  • Microsoft settles antitrust suit by Novell for $536M. [nyt 11/9]

  • FCC asserts federal control over VOIP. [nyt 11/9]

    To subject a global network to disparate local regulatory treatment by 51 different jurisdictions would be to destroy the very qualities that embody the technological marvel that is the Internet.

    Hmm. “[D]isparate local regulatory treatment” … federalism.

  • Margaret Mitchell estate (Gone With the Wind) sues Project Gutenberg. [NYT 11/8]

    PG’s Australian affiliate posted GWTW on the Internet after it entered the public domain in Australia. Unfortunately, thanks to the copyright maximalists & the folks in Congress who just don’t care enough to figure out the issue, the CTEA extended copyright terms in the US, keeping GWTW out of the public domain. Of course the US is busily getting rid of various national public domains through bilateral trade agreements, such as the US-Australia trade agreement.

  • Iran continues censoring Internet speech and access to information, including sites relating to democracy and the rights of women. [NYT 11/8]

Copyright Woes

an ongoing webliography tracking instances of copyright impinging access

collections of stories

  • collected stories from the kahle v. ashcroft archive
  • ed felten at freedom-to-tinker briefly summarizes several researchers in computer fields who are being chilled by DMCA/copyright law

specific incidents

  • 2004-10-26: atrois thinks there might be too much similarity in U2’s new ipod promotional song:

    It it just me, or does the new U2 song in the Ipod commercial sound a bit too much like “You Keep Me Hanging On” by Diana Ross and the Supremes…

  • Tensegrities [akma commentary]
  • locking up hemingway [librarylaw blog, 9/27]