Go Carl Malamud, freeing the law! The same Carl Malamud that pushed SEC’s EDGAR database to be open has now published 1.8 million United States court opinions. The project was announced in November, and just three months later, it’s online.
Randy Cohen’s NYT “The Ethicist” column took on “ethics” versus “legality” and got it right. The Ethicist, Feb. 24, 2008.
John Naughton had a nice column last week in The Observer (at the guardian) trashing the British Phonographic Industry. Triggered by their spokesperson’s statement that “For years, ISPs have built a business on other people’s music,” Naughton awarded it “Fatuous Statement of the Month” and went on to excoriate their arrogance and the legislation they’re pushing to mandate ISPs to deal with copyright infringement. And properly Naughton pointed out that “ISPs have indeed ‘built a business’. They’ve done it by providing an internet connection for upwards of a billion individuals and businesses across the planet.”
But what I thought was funny was the spectacle of the phonographic industry, which represents record companies, complaining about someone else “building a business on other people’s music”. The irony kills.
Friend and colleague Wendy Seltzer has a new column in Craft Magazine about copyright. Copyright has been increasingly applied by crafters and craft-pattern companies to craft patterns, in “shrinkwrap” style licenses. I’m greatly pleased to see some attention to this issue! Thanks, Wendy!
I’ll be watching Harvard’s A&S faculty vote today to see if they approve setting up a library-run faculty publications open access repository. (A proposal, I noted to my partner, that I first saw some 15 years ago in the library community.) The NYT covered the proposal.
For-profit scholarly publishers have of course been complaining vociferously about the trend toward scholars’ and faculty’s open access archives; scholarly societies less so. The for-profit scholarly publishers are in the same position as the recording industry: A set of middlemen that has profited from a technology that, for two centuries, made their business model profitable and even, in some cases, a virtual monopoly. Now that technology has moved on they feel insulted, as if they have a “god”-given right to their particular business model.
The NYT tells us today about Kevin Martin & the FCC’s new plan to relax the cross-ownership rules, which restrict large corporations from dominating entire urban markets. And, on the same page, on the same day, a story that has all the classic hallmarks of the Bush approach to the environment: scuttle environmental protection schemes that are working, destroy wildlife, and lie about science. New battle of logging vs. spotted owls
god I’m tired. 460 more days is a very long time.
A NYT blog is reporting that Radiohead is making digital copies of its next album available for pick-your-own-price amount — and the best part is they’re DRM-free.
Commenters on the post were almost all positive. A few salient points pulled out of comments:
* This will generate fans for and interest in its nice physical artifact versions of the albums — which are for sale for a fixed price, offering a solid profit point;
* This offers would-be downloaders an opportunity to get authorized DRM-free music at a reasonable price — a sort of come-in-from-the-cold attitude that, however small, will generate more revenue from these downloaders than they otherwise would have had;
* 100% of the proceeds — however small — are going to Radiohead, rather than 5-10% of the cost of a $15-$20 CD.
This rant about sexism in open source communities brightened my day.
In Venezuela, the National Assembly is considering restricting all baby names to a total list of 100 names. This will eliminate the wide variety of inventive names that people assign, and will eliminate names that “generate doubt” about gender. NYT 9/5
Because there just aren’t enough laws dictating gender now.
Hal Varian, the economist, has a nice editorial on orphan works.
After the silly editorial by Mark Helprin, who has obviously been confused by an absolutist romantic view of “property”, the NYT published 7 or 8 letters all in substantive disagreement. Now their theater section looks at another problem that copyright terms can cause: over-control of casting decisions by playwright’s heirs.
Since Bernard-Marie Koltès died in 1989 at 41, his reputation as a playwright has continued to grow. In February, for the first time, one of his plays, “Le Retour au Désert,” entered the repertory of the Comédie-Française, the historic Paris theater popularly known as the House of Molière.
Yet soon after Muriel Mayette’s production of the play opened there, Mr. Koltès’s brother, François, who owns the copyright to his works, ordered that it be taken off the stage on June 7 after just 30 performances. The reason? The Algerian character, Aziz, is not being played by an Algerian, as stipulated by the playwright.
James Comey’s testimony Tuesday before Congress was riveting.
The Ninth Circuit reversed the lower court in Fair Housing Council v. Roommate.com, limiting Section 230. Section 230 is the federal statute that immunizes online services providers for their users’ content. Most courts have construed Section 230 broadly, protecting ISPs against all sorts of liability. Intellectual property is (surprise) specifically exempted.
In this case, the Fair Housing Council sued Roommate.com for violations of the Fair Housing Act, which prohibits housing advertisements that state discriminatory preferences. The lower court held that Roommate.com, as an online provider, was immunized by Section 230 for postings on its service that allegedly violate the Fair Housing Act’s discriminatory housing ads prohibition.
The Ninth Circuit’s opinion, written by J. Kozinski, distinguished Roommate.com from a protected service based on three main features:
* Roommate.com shaped its users’ input with a form questionnaire that specified gender, sexual orientation, and with-children choices;
* Roommate.com’s search mechanism which has the same pulldown search options (gender, sexual orientation, and with-children);
* Roommate.com emails people with listings based on profile preferences (gender, sexual orientation, and with-children)
J. Reinhardt would have also held Roommate.com liable for the discriminatory content posted by users in the comments section, but the majority held that that information, which was not solicited by nor built into the search engine, was not Roommate.com’s responsibility.
J. Ikuta dissented from liability, and would have followed Carafano finding broad immunity even on the form submission.
… So what does it mean? My quick take is this:
First, readers will probably be familiar with these issues from the Craigslist case, and concerned about the 7th Circuit appeal. In my opinion, this case can be reconciled with the decision in the Craigslist case (ND Ill, a 7th Circuit court). This decision expressly held that the “no parameters” forms that are just open-ended do not create liability, and Craigslist.com’s housing forms are primarily open-ended: address, rent, cats/dogs. That decision is on appeal to the 7th Circuit. Should the 7th Circuit elect to address this aspect of the decision, that’s a fairly clear distinction to make. The 7th Circuit need not address this, though, because both the search & the email features that Kozinski brought up really hinge on the structured data input, which is the only real point of distinction between a “content provider” and a “content service”.
Second, despite Kozinski’s dancing, the case will be harder to reconcile with Carafano v. Metrosplash.com, a 2003 9th Circuit case that considered defamation & privacy liability for an online personals service that set up forms for publishing user input. (Carafano, 339 F.3d 1119.) In particular, it adds some weight and significance to the distinction between an “ICP” and an “ICS” (information content provider and interactive content service, respectively).
Third, the decision’s major point of distinction between Carafano and this case was that the ISP established policies. So establishing policies that reiterate the law will be key for ISPs in the wake of this decision. Kozinski stressed that the service in Carafano did not solicit the problematic information and in fact expressly forbade some aspects of it. So, under this decision, establishing policies that reiterate the law will go some way toward protecting an ISP. While this isn’t the worst outcome for a speech-related law, it seems (to me) to be a waste of time, and I’d point out that it burdens ISPs with educating their users about the law. This sort of burden is, to my mind, inconsistent with notions of ISPs as “utilities”, and also inconsistent with the broad, unfettered access to communications that the First Amendment contemplates.
Fourth, I imagine that this case will be used by all who seek to limit Section 230’s broad immunity for ISPs. Whether the case constitutes a high-water mark for limitations on that
liability immunity, or merely a beachhead, remains to be seen.
update: Eric Goldman analyzes the decision at greater length, and you can get the flavor from the title “Ninth Circuit screws up 47 USC 230”.
PS – More on the FHA: I always think about, and rarely remember to point out, that one of the contested categories is sexual orientation, which isn’t included in the Fair Housing Act, although various state anti-discrimination codes do include it. Some people have also been confused about the roommate exception, which permits discrimination by roommates for shared-housing situations. If you lease a room in your apartment or house, for instance, you can discriminate on religion, etc. (Although shared-housing people can discriminate, advertising those discriminatory preferences is not protected.) So, generally, commercial landlords may not discriminate on race, sex, familial status, etc. (but they can discriminate on sexual orientation); shared-housing lessors may discriminate; advertising discriminatory preferences is prohibited, period. (But, again, advertising preferences against or for sexuality would be okay under the FHA.)
A victory for free speech in the ongoing war against silly efforts for Congress-critters to score political points. (Preliminary injunction against COPA, aka CDA II, aka son of CDA)
The Library of Congress / Copyright Office issued its third set of DMCA rulemaking exemptions, just before taking off for the holidays. I was eagerly anticipating the rulemaking (even more eagerly than usual) after David Carson, General Counsel at the Copyright Office, kept dropping hints about the what we could all look forward to at a panel at Fordham last Friday. (The ever witty Hugh Hansen said it was the closest he’s seen to a legal strip tease.)
The rulemaking is more generous than it has been in past years (though still not as generous as I would be).
To sum up & paraphrase:
“Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) during the next three years.” (The exemptions go into effect starting Monday 11/27 & expiring Oct. 27, 2009.)
- Film professors. (new) Film professors etc. can circumvent CSS on DVDs for teaching. (Limited to works in the school collection.) (New exemption)
- Preserving old video games. Libraries & archives can preserve computer programs & video games for obsolete platforms & medias. (This kind of exemption shows the weirdness of the 3-year expiration for each of these rulemakings. Libraries & archives had better do a lot of preservation in the next 3 years because who knows if we’ll get it again in 2009! This is a carry-over exemption, but every 3 years librarians have to make the case again.)
- Malfunctioning dongles. You, me, and anyone else can disable malfunctioning access dongles on computer programs if the dongles are obsolete. (Another carry-over.)
- EBook blind readers. Blind ebook read-aloud exemption continues from past exemptions.
- Cell phone switching. (new) If you switch cell phone companies you can disable proprietary technologies to keep your cell phone. (This is a new exemption.)
- Sony rootkits. (new) Sony rootkits and other CD copy protections can be disabled to test, investigate, or correct security flaws or vulnerabilities. (This is a new exemption, and I’m glad it’s here, but, honestly, we got more bang for the buck out of the furious glare of news media & public outrage & a little state’s attorney general scrutiny.)
The Librarian of Congress carefully reminded us that “[t]his is not a broad evaluation of the successes or failures of the DMCA.” Also, that the rulemaking is just for access-control exemptions, not copy-control exemptions, nor does the rulemaking craft exemptions for the prohibitions on making / distributing circumvention tools.
There’s a lot more detail in the 88 page “Recommendation of the Register of Copyrights”, which is where the juicy comments on everybody else’s proposed recommendations will be. What a fun txgiving read! O thank you Copyright Office — this is much better than a football game. (I’m not being sarcastic.)
Surprise, having kids and a husband* make it less likely that women will get tenure-track positions or achieve tenure. See the “Marriage and Baby Blues: Re-defining Gender Equity” report (PDF) by Mary Ann Mason and Marc Goulden (2003).
Thanks to my partner (a postdoc) who sent me this illustrative graphic from the report.
* I say “husband” instead of “spouse” because I suspect this report, while in theory about “marriage”, most likely included only or primarily heterosexual partnership/marriages. This report and many others show that academic men do better with wives than without, while this report shows that academic women do better without husbands than with. The rather personal question it raises for me is, what about lesbian professional/academic couples? Does the penalty for “marriage” apply?
Also, does the parenting penalty apply only to the birth-mom or the stay-at-home mom, or does it apply regardless based on choices that most moms make to prioritize their children, regardless of the presence or absence of gender of their partner? The data showed that single moms did better than married-to-a-man moms, so I suspect that the problem for academic moms is not motherhood, per se, but persistent sexism in academic moms’ heterosexual relationships. Is there a better way to understand this data?
My friend Liz Henry (aka badgermama) took this very funny picture of a costumed Death in the schoolyard.