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November 21, 2006

California Supreme Court Rules in Favor of Free Speech on the Internet

California Supreme Court Rules in Favor of Free Speech on the Internet:


San Francisco - In what is a victory for free speech on the Internet, the California Supreme Court ruled today that no provider or user of an interactive computer service may be held liable for putting material on the Internet that was written by someone else. In doing so, the Court overruled an earlier decision by the Court of Appeal.


Today's ruling affirms that blogs, websites, listservs, and ISPs like Yahoo!, as well as individuals like defendant Ilena Rosenthal, are protected under Section 230 of the federal Communications Decency Act (CDA), which explicitly states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."


"By reaffirming that Congress intended to grant protection under Section 230 to those who provide a forum for the views of others, the Court has ensured that the Internet will remain a vibrant forum for debate and the free exchange of ideas," said Ann Brick, staff attorney at the ACLU of Northern California. "Any other ruling would have inevitably made speech on the Internet less free."


The issue raised in Barrett v. Rosenthal was whether Section 230's protection applies to individuals who frequently use the Internet to pass on information obtained elsewhere, whether by forwarding an email written by someone else or, as was the case in Barrett, posting an email from someone else to a newsgroup. The ACLU-NC and the Electronic Frontier Foundation (EFF) filed an amicus brief in the California Supreme Court arguing that Section 230 means what it says and applies to "users" of interactive computer services as well as "providers."


"Courts have consistently interpreted Section 230 to provide broad protections for the platforms upon which free speech has flourished online," said EFF Staff Attorney Kurt Opsahl. "By reversing the Court of Appeal, the California Supreme Court has brought California back in line with other jurisdictions and reaffirmed the critical rule that the soapbox is not liable for what the speaker has said."


In January 2004, in Barrett v. Rosenthal, the Court of Appeal for the First District overruled the dismissal of a defamation lawsuit filed against an activist for her re-publication on the Internet of someone else's words. The court refused to extend any protection under Section 230, which was expressly enacted "to promote the continued development of the Internet and other interactive computer services," in a manner "unfettered by Federal or State regulation."


"The Supreme Court's opinion strengthens protection for speech on the Internet" said Mark Goldowitz, director of the California Anti-SLAPP Project and counsel for Rosenthal. "Justice Corrigan's opinion protects against the 'heckler's veto' chilling speech on the Internet."

For the full decision, see EFF's website at:
http://www.eff.org/legal/cases/Barrett_v_Rosenthal/ruling.pdf

Contacts:

Kurt Opsahl

Staff Attorney

Electronic Frontier Foundation

kurt@eff.org

Stella Richardson

Media Relations Director

ACLU of Northern California

srichardson@aclunc.org



November 17, 2006

Six Years Of ICANN Delay And Unjustified Retention of $2,000,000

Six Years Of ICANN Delay And Unjustified Retention of $2,000,000:


It was six years ago this month, in year 2000, when ICANN accepted
nearly $2,400,000 to review 47 applications for new TLDs.

ICANN approved seven of those 47 applications in an infamous, clearly biased beauty contest that was so overtly unfair that one very well qualified applicant with an innovative idea was rejected because one ICANN board member could not pronounce the sequence of characters as a word!

Among the seven winners were several who are now asking ICANN for a change to their contracts.  ICANN's Board meets next week to consider these changes.

I would hope that ICANN postpones these decisions.  For how long?  Until ICANN deals with the remaining applicants who have been waiting for 6 very long years and watching their $50,000 (each) application fees rot away.

Those other 40 were not rejected, in fact they have been often reassured that their applications remain pending.  And when I looked at ICANN's finances I did not see that this $2,000,000 was in a contingent fund or was being treated as anything other than permanent, non-refundable income.

If those 40 applications - and the $2,000,000 in application fees - are not still alive than ICANN has lied and taken their money under false pretenses.  And ICANN would not do that.

Fairness and justice requires that ICANN not amend the contracts of any the seven lucky winners until ICANN squarely and fairly deals with 40 applicants who have been waiting all of these years - or ICANN admits that it lead them on, took their money, and returns that money, with substantial interest (remember year 2000 was still within the .com boom) and an apology.

By-the-way, this kind of delay is ICANN standard operating procedure - I filed a request with ICANN for independent review in that same year - ICANN has never honored its obligation to deal with it.  And ICANN has been stringing Ed Hasbrouck along for years.

The ICANN process reminds me of something and someone - John Ehrlichman, an adviser to Richard Nixon, whose method of dealing with people who raised troublesome issues was to ignore them and leave them "twisting, slowly, slowly in the wind".


Six Years Of ICANN Delay And Unjustified Retention of $2,000,000

Six Years Of ICANN Delay And Unjustified Retention of $2,000,000:


It was six years ago this month, in year 2000, when ICANN accepted
nearly $2,400,000 to review 47 applications for new TLDs.

ICANN approved seven of those 47 applications in an infamous, clearly biased beauty contest that was so overtly unfair that one very well qualified applicant with an innovative idea was rejected because one ICANN board member could not pronounce the sequence of characters as a word!

Among the seven winners were several who are now asking ICANN for a change to their contracts.  ICANN's Board meets next week to consider these changes.

I would hope that ICANN postpones these decisions.  For how long?  Until ICANN deals with the remaining applicants who have been waiting for 6 very long years and watching their $50,000 (each) application fees rot away.

Those other 40 were not rejected, in fact they have been often reassured that their applications remain pending.  And when I looked at ICANN's finances I did not see that this $2,000,000 was in a contingent fund or was being treated as anything other than permanent, non-refundable income.

If those 40 applications - and the $2,000,000 in application fees - are not still alive than ICANN has lied and taken their money under false pretenses.  And ICANN would not do that.

Fairness and justice requires that ICANN not amend the contracts of any the seven lucky winners until ICANN squarely and fairly deals with 40 applicants who have been waiting all of these years - or ICANN admits that it lead them on, took their money, and returns that money, with substantial interest (remember year 2000 was still within the .com boom) and an apology.

By-the-way, this kind of delay is ICANN standard operating procedure - I filed a request with ICANN for independent review in that same year - ICANN has never honored its obligation to deal with it.  And ICANN has been stringing Ed Hasbrouck along for years.

The ICANN process reminds me of something and someone - John Ehrlichman, an adviser to Richard Nixon, whose method of dealing with people who raised troublesome issues was to ignore them and leave them "twisting, slowly, slowly in the wind".


November 05, 2006

The Value of the Public Domain - Larry Lessig

The Value of the Public Domain:


I hadn’t seen this piece when it came out in July. The Value of the Public Domain by Rufus Pollock is an excellent analysis of how one might quantify the value of the public domain. It nicely introduces what otherwise strikes many as counter intuitive. Highly recommended.

After reading Pollock’s piece, for example, it is much easier to see the fallacy in any public policy argument that tries to suggest there is an economic harm from failing to extend the term of an existing copyright. The key is the distinction between social value and individual value.

E.g., imagine a society that every year randomly selected 100 people, and sent them a check for $1m. The $100m needed to fund this program is raised each year by a tax on everyone within the society. Then some enterprising politician says: Hey, this is a waste of resources. Let’s stop this program. While it’s simple to see why such a change would be “Armageddon” for those in the $1m club, it would take lots of hand-waiving to argue (convincingly at least) that the change would be harmful to society.

Or remember how Macaulay (1841) put it (nicely reproduced in full by Eric Flint):

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty.

Me too. Absolutely. Taxes are awful, but necessary. Let’s have them where necessary, but only when necessary. And so why not have them to extend the term of an existing copyright? BECAUSE THIS IS A TAX THAT CANNOT “INCREASE THE BOUNTY.” The work is already produced. No matter what we do today, Elvis is not going to produce any more recordings in 1957. So it is a tax that benefits some plainly (those who get almost twice the term they originally bargained for), but benefits society not at all. I.e., a very bad tax.


November 02, 2006

Remove Test Data Prior To Publication

Remove Test Data Prior To Publication:


As noted by, among others, Eugene Volokh, a patent application has been filed with an obvious "test data" claim. The claim reads:

9. The method of providing user interface displays in an image forming apparatus which is really a bogus claim included amongst real claims, and which should be removed before filing; wherein the claim is included to determine if the inventor actually read the claims and the inventor should instruct the attorneys to remove the claim.

So on the one hand it's funny both in its text and in that it got through. The complaints about abysmal patent quality and absurd patent claims in the software arena have come from all corners and as some have said at least this one is forthright in admitting its bogosity.

On the other hand, I have a lot of sympathy for the point made by "Tony2" in the comments, to the effect that the rendering of technical inventions into patents is the semantic equivalent of translating them into a foreign language spoken only by a specialized community. Bogus claims or not, I find as a technical person I can't make a lot of sense out of patent language. It's completely understandable that the inventor on this patent wouldn't be fluent in this foreign language and would trust that people paid hundreds of dollars per hour - the application-drafting lawyers - would in fact do their jobs.

So, yeah. Funny. And also kind of sad.


Wi-Fi Prevails at Boston Airport

Wi-Fi Prevails at Boston Airport:


Continental Airlines set up a free wi-fi access point at Boston’s Logan Airport. Massport, which runs the airport, forced Continental to shut down the AP, claiming 1) it might interfere with police communications, 2) it violated Continental’s lease, and 3) (most important) it competed with Massport’s $7.95 per day wi-fi service. (A personal aside: Massport’s only competition in bureaucratic incompetence in the Bay State is the Mass. Turnpike Authority, which brought you deadly falling ceiling tiles in the Ted Williams tunnel.)


Fortunately for those of us who travel there frequently, the FCC blocked the Massport bid for monopoly. This bodes well for entities that want to set up wireless access points - including those who dare compete with overpriced governmental offerings. This ruling is cheering for those who believe in Yochai Benkler’s approach to open wireless networks, and Jonathan Zittrain’s views on the generative Internet. It’s also nice to know that the airport can overcharge us for water, food, and other necessities, but at least may have some competition for our Internet needs.



Novell Sells Out - From GrokLaw

Novell Sells Out:


You can read the press release for yourself. Novell is paying Microsoft for its patents, and will pay royalties ongoing. Microsoft in turn promises not to sue individual non-commercial coders or paid coders who contribute to SUSE:

Under the patent agreement, both companies will make up-front payments in exchange for a release from any potential liability for use of each others patented intellectual property, with a net balancing payment from Microsoft to Novell reflecting the larger applicable volume of Microsoft's product shipments. Novell will also make running royalty payments based on a percentage of its revenues from open source products.

The two companies will work on ODF compatibility. Microsoft will push SUSE.


HP once again is there in the background, saying this is great. IBM says it is great. Intel. All the corporate dudes who showed up for Oracle's announcement. Obviously there is a corporate dance the community isn't invited to. What? They couldn't get Rob Enderle?

Here's the joint Microsoft-Novell "Letter to the FOSS Community" if you wish to observe the spin about how great this is "for the Linux market".
Those of you who think the most important goal is market share will be happy. Those of you who think freedom matters will want to throw up.

Excuse me while I go throw up. I gather Microsoft no longer thinks Linux is a cancer or communism. Now it just wants a patent royalty from it. Wasn't that kinda SCO's dream at first? A kind of royalty on every box sold, every server shipped? Blech. And this "patent promise" is only for SUSE, so that tells the discerning observer that Microsoft will likely be suing others. As for Novell, if history means anything, it will end up Microsoft roadkill. It's so funny to me that nobody ever remembers what comes *after* the Embrace.