Domain Name Rights Coalition

WIPO anti-podcasting treaty refuses to die:


Cory Doctorow:

The WIPO Broadcast Treaty meeting is back underway -- this is a treaty to birth a new kind of copyright that goes to broadcasters, web-hosters, and other people who don't create, only distribute. Under the rules proposed by WIPO, it wouldn't matter if copyright lets you make use of some material (because of fair use, Creative Commons, public domain, etc) -- you'd also need permission from the company that hosted or distributed the material.

Slashdot has picked up the story and has some great, vigorous discussion about it.

If YouTube, et al have done anything, it's show that a different business model can work: the value is not in production of the material, it's in delivering it.

Previously, if I had wanted lame videos of punk skateboarders doing tricks, angsty teenagers venting their mixed-up feelings, middle-age housewives body-popping, etc. I would have had to spend countless hours trolling the murky depths and dark recesses of the Internet to find them. Thanks to YouTube, I have a single, convenient place to satisfy my disgusting and perverse needs.

Seriously though, can we please stop trying to create artificial scarcity? We don't really need it; TV shows, movies, and music worth paying for are already scarce enough.

Link

See also:

Massive victory at WIPO!

WIPO wants to give webcasters the right to steal from public domain, Creative Commons and GPL

European podcasters to WIPO: Stay away from us!

WIPO meets to screw up podcasting, Barcelona, June 21

Secret WIPO memo: rich countries to kill Broadcast Treaty, Development Agenda

WIPO pulls out dirty tricks to kill participation from consumer groups

How the US is boning the developing world at WIPO

WIPO Broadcast Treaty: consolidated three-day notes

Copyright treaty laid bare: watch your governments make sausage!

Tech companies tell WIPO: we don't want your "protection"

WIPO playing dirty tricks to keep public interest groups out

Posted by mikki at 03:42 PM | Permalink | Comments (0)

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

Posted by mikki at 06:36 PM | Permalink | Comments (0)

The "Net Neutrality" debate is one that I've largely stayed on the sidelines of. Not because I don't believe that consumers should have the freedom to choose whatever content they desire, subject to the bandwidth that they have purchased, but mostly because the "powers that be" have essentially turned everything regarding an Internet used first for communication and second for commerce directly on its head. Arguments against "them" are touted as consensus. And basically, the whole thing becomes painful and annoying. I should know. I've been fighting with those who insist that the Net has classes of citizenship (one for the corporate sponsors, one for the geeks, and one for the users) for almost 20 years now.

So what have I learned in those 20 years? Those that have the gold makes the rules, even if their previous attempts have failed so totally that they have to purchase the successes of others, pretend they created it themselves, and then steamroll anyone who was there before and remembers their bumbling prior acts. Thus it has been with telcos who woke up one morning and found that computer networking, which they had tried to destroy back in the 50s, was alive and well and living in several different places, from CompuServ, and AOL, and BBS systems, and FIDOnet etc., all in forms they had no direct control over. They sat back and watched things grow and morph and mutate into a more coherent Internet, then decided that what they needed to do was to set up their OWN conduit in hopes of recapturing their lost control. However, when they were no longer the monopoly player, they found that important things like customer service, reliability, and cost were important issues that would cause customers to actually go elsewhere! They basically gave up, but obviously still wished to maintain control, or at least a revenue stream over all of this communication that is going on despite them.

Then other corporations woke up and found that people were happily using it long before they even dreamed of booting up in the latest version of Windoze, and decided to change all the rules to suit them, take the domain names already in use, then label themselves "content providers" and the rest of us are "passive consumers."

So what's going to happen with "Net Neutrality?" The Telcos will convince (through their very high paid lobbyists) the Congress Critters who still can't boot their own machines, that the only way they can provide the high speed service that people are crying for, is to somehow (they don't tell us how yet) decide for those "passive consumers" what they really need. Arguments like John Quarterman's below will likely be conveniently ignored in the onslaught, and we will all lose. I still have a tiny shred of hope somewhere in there, but I've been disappointed SO many times before that I'm definitely not willing to bet on it.

Real Fast Broadband:


OK, I think I saw some confirming comments about my interpretation of Softbank ADSL's 50Mbps for $25/mo. offering.

For those who don't read Japanese, Try this.

Meanwhile, NTT has decided to get more subscribers than Yahoo Japan by using Fiber to the Home (FTTH). How fast is that? $100Mbps for $31/month.

Show me any U.S. city where individuals can by Internet access at speeds anywhere near that for prices anywhere like that.

Meanwhile, the company that started Japan's most recent broadband push, Softbank, is profitable.

And while U.S. telcos complain they need special treatment to do what Softbank and NTT have already done, NTT is already branching out overseas, offering 100Mbps in other countries. As a demonstration, it broadcast Superbowl XL back to Japan in high definition.

Hey, maybe that's how we'll finally get fast broadband stateside!

-jsq

Posted by mikki at 09:32 PM | Permalink | Comments (0)

Finally, someone who is not a "shill" for the ISPs or for those insane free speech weirdos with something interesting to say about Net neutrality. Gaige is a cool guy so you really oughta read this :-).

Gaige's Pages - Network neutrality is about control:


Whereas the rhetoric is certainly intended to incite and not to inform (I don't believe that either side of any argument uses a slogan to inform, by the way), it isn't just empty fluff. In particular, as you noted earlier in the piece, the costs for services will eventually be borne by the customers regardless of who they pay for them and how they're provided. The purpose of the net neutrality folks is to put the control of paying for service in the hands of the consumers, where a customer who wants to use any number of services that consume large amounts of bandwidth pays for a higher quality, higher bandwidth, and probably higher-priced connection. This does two things: first, it makes the payments transparent, since the users know they are using bandwidth to watch television or movies, or other things that either take a long time or involve a high level of interactivity; second, it provides an avenue for innovative, high bandwidth services to get a start in the world.

Posted by mikki at 12:20 PM | Permalink | Comments (0)

Good news on WIPO Xcaster | A2K:


From James Love at cptech: "Today WIPO finally took a step back from forcing a restrictive Rome Convention intellectual property right on Internetpublishing... This is a victory for everyone who has opposed linking webcasting to the broadcasting treaty. There is still a lot of work to. There is a strong likihood the traditional broadcasting treaty will move forward, and the EU will clearly push to expand this to cases where broadcasters use the Internet.... and there are considerable problems with many of the proposals for the broadcasting treaty, including some very strong rights, TPMs, and other problems. However, there is now also a growing movement away from granting IP rights in the content of transmissions, in favor of theft of services protections, which is a very positive development, and a new project to examine the impact of TPMs on limitations and exceptions, which is quite important. The Internet is far safer now than before, because the threat of a new treaty for Internet middleman is now much less likely."

Posted by mikki at 07:51 PM | Permalink | Comments (0)

why network neutrality matters, and is worth fighting for:

For weeks, I've been trying to write about why Network Neutrality is so important, and why everyone who spends even three minutes a day online should be writing, calling, and faxing their representatives in Congress relentlessly until the so-called First Amendment of the Internet is guaranteed and becomes law. But whenever I start, I end up angry and depressed and frustrated, and the words just won't come.

Today, Adam Green has a brilliant post at HuffPo that puts into simple language exactly why Network Neutrality is so important:

As the New York Times editorialized today:

 

"Net neutrality" is a concept that is still unfamiliar to most Americans, but it keeps the Internet democratic. ... One of the Internet's great strengths is that a single blogger or a small political group can inexpensively create a Web page that is just as accessible to the world as Microsoft's home page. But this democratic Internet would be in danger if the companies that deliver Internet service changed the rules so that Web sites that pay them money would be easily accessible, while little-guy sites would be harder to access and slower to navigate. Providers could also block access to sites they do not like.

If Net Neutrality is gutted, Google, eBay, and YouTube either pay protection money to companies like AT&T or risk that their sites process slowly on your computer. Comcast could intentionally slow access to iTunes, steering Internet customers its own music service. And the little guy with the next big idea would be muscled out of the marketplace, relegated to the "slow lane" of the information superhighway.

This isn't just speculation -- it's already happened in places without Net Neutrality. Heck, AT&T's CEO blatantly announced, "The Internet can't be free."

That's why an Internet revolt has begun--a revolt that [Telecom spokesman Mike] McCurry belittles. Folks as diverse as Craig from Craigslist, MoveOn, Gun Owners of America,  Google, eBay, and Amazon are all fighting back. 350,000 people signed a petition demanding Congress preserve Internet freedom, over 2,000 blogs have rallied the public, and even some celebrities are chiming in.

Craig Fields from Gun Owners of America hit the target right-on when he said

"Whenever you see people on the far left and far right joining together about something Congress is getting ready to do, it's been my experience that what Congress is getting ready to do is basically un-American."

(Emphasis mine)

There's much more to his post, including a smackdown of Mike McCurry, who has become and outright lying shill for powerful telecom interests like AT&T who want to force a fundamental change to the way the Internet operates. Please read it. I think it's the most important thing you'll read today, and should help everyone who's heard about this issue (but doesn't know exactly what it is -- which includes a lot of people, including myself until about last week) understand why it's so important.

On a personal note: without the Internet, I'd be just another failed actor struggling to make ends meet. Because I had the same ability to put together a website and reach an audience as anyone else, I was able to put my words on your screens, and eventually into a book that got into many of your hands. If AT&T or some other big telecom decided that regular guys like me had to pay some sort of protection money to have the same ability to reach you as Google or MSN does, I never would have been able to get WWdN off the ground, much less found Monolith Press, publish Dancing Barefoot, and start an entirely new career as a writer.

We've all taken for granted that we'll have equal access to the Internet, both as consumers and as creators of content. Right now, very powerful, very greedy, and very un-democratic businesses are trying very hard to take that away from us. They must be stopped.

Again, Adam Green:

The only way to protect Net Neutrality is for Congress to take action now, as it re-writes our nation's telecom laws. Senators Olympia Snowe (R-ME) and Byron Dorgan (D-ND) and Representative Ed Markey (D-MA) have introduced legislation to do this. Mike McCurry and his clients like AT&T are fighting it tooth and nail.

If you are outraged, don't just sit there . . .  take these steps:

1. SIGN a Net Neutrality petition to Congress:

2. CALL Congress now:

3. BLOG about this issue, or put our "Save the Internet" logo on your Web site:

4. MYSPACE: Add "Save the Internet" as a friend:

5. WRITE A LETTER to Congress:

6. VISIT our coalition Web site for more information, SavetheInternet.com

Posted by mikki at 05:02 PM | Permalink | Comments (0)

Cornell University harasses maker of Cornell blog:


Cory Doctorow:

Elliott Back's personal site about Cornell University has attracted a nastygram from the university, which argues that it's possible that someone (presumably someone very foolish) might mistake his site (whose URL is cornell.elliottback.com) with Cornell University's site.

Some trademark holders are confused to the point of ridiculousness on what TM does and doesn't protect. Trademark lets you sue people who use your mark in commerce in a way that's likely to confuse the public about the origin of goods and services. It isn't enough that Pepsi calls itself a "cola" when Coke invented and trademarked the word -- Coke has to prove that people who buy Pepsi Cola sometimes think they're buying Coca-Cola.

Elliott's site won't confuse anyone. It is, instead, a fan site about Cornell University, spreading goodwill about the institution. Priceless, genuine goodwill. They've squandered this goodwill and wasted the time of their expensive lawyers who have better things to do (or, if they don't, are a waste of money and should be laid off and their budget reallocated to teaching and research) because of the remote, infinitesimal chance that somehow, cornell.elliottback.com will be mistaken for Cornell University.

Chilling Effects gathers, publishes and analyzes letters that threaten web-writers with legal action in retaliation for free expression. I hope Elliott stands his ground and sends a copy of this notice to them.

I am writing to request that you remove the name Cornell University from the name of your blog and website at cornell.elliottback.com. While we appreciate your hosting a forum in which Cornell news and events can be discussed, your use of the words Cornell University on the blog is confusing and can easily be misinterpreted to mean that the blog is maintained and/or sanctioned by the university. In fact, neither is the case.

Cornell University is a trademarked name and can only be used with the permission of the university. More specifically your use of the Cornell University name in this manner is unauthorized, misleading, and in violation of Section 397 of the General Business Law of the State of New York.

Posted by mikki at 10:50 AM | Permalink | Comments (0)

US court rules for 'gripe website' owner | The Register:


A US court has ruled that a disgruntled customer of an insurance firm cannot be sued for defamation over statements he made on his “gripe site” because those statements are protected free speech.
The case dates back to May 2000, when Ronald DiGiovanni obtained a service warranty – provided by Pennsylvania insurance company Penn Warranty Corp – for his 1994 GMC Sonoma truck.

The truck broke down, but Penn Warranty denied DiGiovanni's warranty claim. Consequently, he brought a small claims action against the firm, alleging breach of contract. The dispute eventually settled with a payout of $2,500.
But DiGiovanni was still unhappy. He set up a 45-page website – PennWarrantyLitigation.com – complaining about the firm. The site was available online for a few weeks in January 2004 but is no longer operating.

Posted by mikki at 09:46 AM | Permalink | Comments (0)

Political bloggers jailed, detained:


It's been a bad week for bloggers in Libya, Egypt and China, where authorities are cracking down on online critics.

Posted by mikki at 09:14 AM | Permalink | Comments (0)

From: Paul Levy Date: September 15, 2005 2:55:44 PM EDT To: dave@farber.net Subject: New developments on anti-free speech trademark revision bill

I recently learned that the Association of the Bar of the City of New York ("ABCNY"), a highly respected bar group whose members belong to some of New York's biggest private law firms, has joined Public Citizen, the ACLU, EFF and Public Knowledge in opposing the present form of HR 683. That bill would amend section 43(c) of the Lanham Act in ways that wuold drastically increase the exposure of consumers and small businesses to litigation from large national corporations for violating their trademarks based on purely npon-commercial commentary. The ABCNY conducted a detailed study of the provisions of the proposed legislation and issued a report last spring, but apparently they refrained from disseminating the report because they had no idea that other groups were also opposed.

So, although proponents of the change have portrayed the trademark bar as being united in favor of the bill, that claim is highly misleading.

The ABCNY's study, and their proposed changes in HR 683, can be found on the ABCNY web site at http://www.abcny.org/pdf/report/nyc1-560488-6.pdf

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation

Posted by mikki at 10:55 PM | Permalink | Comments (0)

Blog Without Getting Burned: "

EFF Releases How-To Guide for People Who Want to Blog Safely and Anonymously

San Francisco, CA - With the privacy of bloggers and their news sources coming under fire in the court system, it's crucial that web writers know how to express themselves without risking their jobs or social lives. Yesterday the Electronic Frontier Foundation (EFF) released 'How to Blog Safely (About Work or Anything Else),' a how-to guide for bloggers worried about protecting their privacy and free speech.

The guide covers basic measures people can take to keep their blogs anonymous and explores what the law says about discussing work-related issues online. Some advice is common sense; for example, don't post a picture of yourself if you want to stay anonymous. But for bloggers who want strong guarantees of privacy, EFF suggests using technologies like Tor or Anonymizer to prevent your blog-hosting company from logging your computer's unique Internet Protocol (IP) address. Bloggers who fear they could be fired for blogging are also given an introduction to laws that prevent an employer from punishing them for speaking out online.

'There is a lot of misinformation out there about the ways people could get into trouble for blogging,' said EFF Policy Analyst Annalee Newitz. 'We hope advice about online anonymity and the law will help more people engage in free expression without living in fear of reprisals, legal or otherwise.'

Contacts:

Annalee Newitz
Policy Analyst
Electronic Frontier Foundation
annalee@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

(Via EFF: Press.)

Posted by mikki at 11:01 PM | Permalink | Comments (0)

False On Its Face?: "In four and a half years of blogging, I think this is my first cease and desist letter. Encirca takes issue with this sentence I posted yesterday: 'Non-credentialed individuals can now register second-level .PRO names en masse through Encirca's new Bulk .PRO Registration form.' What about that sentence is wrong?

Encirca claims that my statement is 'false on its face.'Really? Here's text from a marketing e-mail that Encirca sent to potential .pro registrants on March 2, 2005:

(Via Lextext.)

Posted by mikki at 11:11 AM | Permalink

EFF Appeals Ruling in Apple Case: "

Asks Court to Reaffirm Freedom of the Press

San Jose, CA - Today the Electronic Frontier Foundation (EFF) filed an appeal in a case that has broad implications for the rights of reporters to protect the confidentiality of their sources.

Last week, a California Superior Court judge ruled that an online journalist's Internet service provider (ISP) can be required to reveal the identities of the reporter's confidential sources to Apple Computer, Inc. The court rejected EFF's request for an order to protect the identities of sources for the online news sites AppleInsider and PowerPage.

This landmark case was the first in which a court heard arguments that online reporters' confidential sources and unpublished materials are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment. But the court did not restrict its ruling to online journalists, instead holding that all journalists could be required to reveal confidential sources when a claim of trade secret is raised.

In its request for an appeal, EFF argues that the First Amendment cannot be so easily waived. Many important news leaks, such as those revealing the dangers of cigarette smoking, can be claimed to be trade secrets by the companies seeking to stop them. Apple must also demonstrate that it has done an exhaustive search elsewhere for the information it seeks before targeting journalists with court orders. There is no evidence that Apple has done such an exhaustive search.

'The California courts have a long history of supporting and protecting the freedom of the press,' said EFF Staff Attorney Kurt Opsahl. 'The Court of Appeal will now get the opportunity to correct a ruling that endangers all journalists.'

'The Superior Court’s ruling exalted statutory trade secret protection over constitutional rights, misapplied the test for when the constitutional reporter’s privilege may be overcome, and ignored the Stored Communications Act altogether,' said EFF staff attorney and Bruce J. Ennis Fellow Kevin Bankston. 'There are strong protections for email privacy under federal law, especially when that mail is held by an ISP. Every email service provider should be concerned about correcting this dangerous precedent.'

The case is the result of Apple suing several unnamed individuals, called 'Does,' who allegedly leaked information about an upcoming product code-named 'Asteroid.' Apple subpoenaed Nfox, the ISP for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about 'Asteroid.'

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

(Via EFF: Press.)

Posted by mikki at 08:55 PM | Permalink

No kidding, folks. How can one have a democracy when one can't even express ideas for fear of running afoul of intellectual property law, even when their speech is decidedly non commercial?

Wendy Seltzer: "The Madrid Summit was outside my usual realm of intellectual property law, but the change served to remind me that while the copyfight is but a small part of the picture, the principles we're fighting for are more than music. ....At least a part of [the task of promoting democracy] is communication -- communicating with other democratic citizens and with other people seeking democracy. ...I don't think it's stretching too far to say that protecting against abuses of privacy, copyright or trademark online strengthens these tools of democracy."

Posted by mikki at 01:26 PM | Permalink | Comments (0)

AOL raised a few eyebrows recently with some quiet changes to its Terms of Service. Although it has attempted to 'clarify' its position that the ToS don't apply to AIM, the fundamental problem still remains - the content belongs to AOL, not to you. You have no copyrights to your fiction, no trademarks in your online business ideas, no patentable notions in your invention drawings, if you put any of it onto AOL's net. AOL owns it all and can "reproduce, display, perform, distribute, adapt and promote" it at will.

My intuition is that the other big online services have ToS that are equally privacy- and IP-hostile but today is AOL's turn under the kleiglight.

Posted by mikki at 11:44 AM | Permalink | Comments (0)

EFF Asking California Appellate Court to Intervene

Santa Clara - Today Santa Clara County Superior Court Judge James Kleinberg ruled that an online journalist's Internet service provider (ISP) can be required to reveal the identities of the reporter's confidential sources to attorneys from Apple Computer, Inc. The court rejected a request for an order to protect the confidentiality of these sources and other unpublished materials.

The Electronic Frontier Foundation (EFF), along with co-counsel Thomas Moore III and Richard Wiebe, is representing the journalist, and will be asking the California Appellate Court to intervene.

"We're disappointed that the trial court ignored the Supreme Court's requirement that seeking a journalist's confidential sources be a 'last resort' in civil discovery," said EFF Staff Attorney Kurt Opsahl. "Instead, the court asserts a wholesale exception to the journalist's privilege when the information is alleged to be a trade secret."

"This is a broad-brush ruling that threatens journalists of all stripes," said EFF Legal Director Cindy Cohn.

This landmark case was the first in which a court heard arguments that online reporters' confidential sources and unpublished materials are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment. But the court did not restrict its ruling to online journalists, instead deciding that all journalists could be required to reveal confidential sources when a claim of trade secret is raised.

Apple is suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the ISP for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information, but these have not yet been issued and were not ruled on today.

Ruling [PDF]; case summary [PDF]; more about Apple v. Does.

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Posted by mikki at 11:40 PM | Permalink | Comments (0)

This needs to be said. Hooray for the people who actually made it to Madrid for this. Although my personal travels to these International Venues to be more "hands on" with Internet Freedom have been curtailed due to budgetary considerations, I follow the trends, and do what I can from my side of the keyboard. Mikki Barry

I re-emerge.

Sorry for the hiatus. I will do my best in following posts to recount the sound and fury in my part of Meatspace that has led to my recent silence in Cyberspace. For now, here I am, in real time.

I'm in Madrid at a meeting convened by the Club of Madrid, a group of former heads of state, led by former Brazilian president Fernando Cardoso and, including everyone from Bill Clinton to Mikhail Gorbachev to Vaclav Havel, to John Major, all seeking to expiate their sins of office with subsequent good works.

The good work at hand is called The International Summit on Democracy, Terrorism, and Security. It feel a little like the World Economic Forum, though smaller and more focused. The security is intense and the press is excluded.( Though, interestingly, I am posting these words from inside a session, along with the many other bloggers.)

I fear, that despite enough good intentions to pave a superhighway to hell, not much is likely to come from this. Everyone seems to be playing we within the boundaries of his usual rule set. I have yet to hear anyone say something that seemed likely to mitigate the idiocy of this age.

And I'm no better in this regard. I spent all damned day yesterday in session with many of the stars of Cyberspace, folks like Joichi Ito, John Gage, Dan Gillmor, David Weinberger, Ethan Zuckerman, Marc Rotenberg, Andrew Mclaughlin, Rebecca MacKinnon, etc. etc. Laboring long and loud, we collectively produced the following statement:




The Infrastructure of Democracy
Strengthening the Open Internet for a Safer World
March 11, 2005


I. The Internet is a foundation of democratic society in the 21st century, because the core values of the Internet and democracy are so closely aligned.
1. The Internet is fundamentally about openness, participation, and freedom of expression for all -- increasing the diversity and reach of information and ideas.
2. The Internet allows people to communicate and collaborate across borders and belief systems.
3. The Internet unites families and cultures in diaspora; it connects people, helping them to form civil societies.
4. The Internet can foster economic development by connecting people to information and markets.
5. The Internet introduces new ideas and views to those who may be isolated and prone to political violence.
6. The Internet is neither above nor below the law. The same legal principles that apply in the physical world also apply to human activities conducted over the Internet.

II. Decentralized systems -- the power of many -- can combat decentralized foes.
1. Terrorist networks are highly decentralized and distributed. A centralized effort by itself cannot effectively fight terrorism.
2. Terrorism is everyone's issue. The internet connects everyone. A connected citizenry is the best defense against terrorist propaganda.
3. As we saw in the aftermath of the March 11 bombing, response was spontaneous and rapid because the citizens were able to use the Internet to organize themselves.
4. As we are seeing in the distributed world of weblogs and other kinds of citizen media, truth emerges best in open conversation among people with divergent views.

III. The best response to abuses of openness is more openness.
1. Open, transparent environments are more secure and more stable than closed, opaque ones.
2. While Internet services can be interrupted, the Internet as a global system is ultimately resilient to attacks, even sophisticated and widely distributed ones.
3. The connectedness of the Internet – people talking with people – counters the divisiveness terrorists are trying to create.
4. The openness of the Internet may be exploited by terrorists, but as with democratic governments, openness minimizes the likelihood of terrorist acts and enables effective responses to terrorism.

IV. Well-meaning regulation of the Internet in established democracies could threaten the development of emerging democracies.
1. Terrorism cannot destroy the internet, but over-zealous legislation in response to terrorism could. Governments should consider mandating changes to core Internet functionality only with extraordinary caution.
2. Some government initiatives that look reasonable in fact violate the basic principles that have made the Internet a success.
3. For example, several interests have called for an end to anonymity. This would be highly unlikely to stop determined terrorists, but it would have a chilling effect on political activity and thereby reduce freedom and transparency. Limiting anonymity would have a cascading series of unintended results that would hurt freedom of expression, especially in countries seeking transition to democratic rule.

V. In conclusion we urge those gathered here in Madrid to:
1. Embrace the open Internet as a foundation of 21st Century democracy, and a critical tool in the fight against terrorism.
2. Recognizing the Internet's value as a critical communications infrastructure, invest to strengthen it against attacks and recover quickly from damage.
3. Work to spread access more evenly, aggressively addressing the Digital Divide, and to provide Internet access for all.
4. To protect free speech and association, endorse the availability of anonymous communications for all.
5. Resist attempts at international governance of the Internet: It can introduce processes that have unintended effects and violate the bottom-up democratic nature of the Net.


In other words, precisely what you would expect us to say. So predictable as to be the equivalent of silence. And yet, it's what we all passionately believe.


We are now all in a session where we are presenting this little manifesto.

It has just been strongly and rather surprisingly rebuked by my friend Benjamin Barber who laid out the usual older, indigerate stuff about how the Internet is nothing but the handmaiden of big media, scarcely better than television.

Now an Iranian lady has risen to discuss, among other things, the fact that all the ayatollahs of Iran have sites on the Internet.

Posted by mikki at 07:38 PM | Permalink | Comments (0)

Having done quite a bit of work with and against WIPO, all I can say is, can anyone be really surprised that an organization that is chartered to protect the rights of intellectual property holders would not want those pesky public interest people getting in the way of what they consider their "progress?"

Here's the scoop on what's happening at WIPO with regard to the April meetings on the Development Agenda [EFF]. It's unpretty.

Previous relevant Copyfight coverage here, here, and here.

Posted by mikki at 11:27 AM | Permalink | Comments (0)

A Federal court today hears a challenge to the "broadcast flag" rules designed to deter widespread copying of digital TV broadcasts. The rules require that after July 2005 all devices handling broadcast digital programs must obey certain content protection standards. The lawsuit by a range of public interest groups argues the FCC did not have the authority to create such broad rules, which impact computers and the Internet as well as TVs. [Center for Democracy and Technology]

Posted by mikki at 06:04 PM | Permalink | Comments (0)

Government Claims Need for Secrecy, Rebuffs Call for Open Access

San Antonio, TX - Today the Electronic Frontier Foundation (EFF) filed a reply brief in a federal court in Texas supporting its motion to unseal a secret court order. That order had led to the seizure of two servers hosting several websites and radio feeds belonging to Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists.

EFF filed its reply after the United States Attorney's Office in San Antonio, Texas, filed an opposition brief urging the federal court to refuse EFF's request to unseal. The opposition brief argued that secrecy was required to protect "an ongoing criminal terrorist investigation" and that the confidentiality provisions of a Mutual Legal Assistance Treaty (MLAT) trumped the rights of Indymedia in this case.

This marks the first time that the federal government has formally admitted to the secret order's existence. In its reply brief, EFF reminded the government that treaties are limited by the Bill of Rights, including the First Amendment right of access to court proceedings.

On October 7, the federal government secretly seized Indymedia's servers from San Antonio-based Rackspace Managed Hosting. Issued at the request of a foreign government, the seizure order resulted in more than 20 IMC websites and 10 streaming radio feeds being taken offline. Neither Rackspace nor the government has formally identified the foreign country that initiated the request, but language quoted in the government's refusal of EFF's first request matches a US treaty with Italy. Morena Plazzi, a deputy public prosecutor in Bologna, admitted that she requested server logs from Indymedia, but denied requesting a seizure.

"There are serious questions about whether the government or Rackspace overreached in responding to Italy's request," said Kurt Opsahl, EFF Staff Attorney. "The public needs to see the order so we can understand what went wrong and take steps to prevent this unconstitutional silencing of protected speech from happening again."

"The government's brief tacitly admits Italy issued the order, and the Italian government admits it sought information from Indymedia's servers," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow. "By keeping the order secret, the government appears to be trying to hide serious procedural errors that led to the seizure, rather than legitimately protecting the secrecy of a 'terrorism' investigation."

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Posted by mikki at 08:14 AM | Permalink | Comments (0)

Expanded Powers for Law Enforcement Are Dangerously Vague, Invasive

Earlier this week, the Electronic Frontier Foundation (EFF) filed comments with the Federal Communications Commission (FCC) objecting to the agency's plan to expand the reach of a law that forces communications service providers to build surveillance backdoors into their networks.

The Communications Assistance to Law Enforcement Act (CALEA), passed in 1994, forced telephone companies to redesign their network architectures to make wiretapping easier. It expressly did not regulate data traveling over the Internet. But earlier this year, law enforcement agencies petitioned the FCC to expand CALEA's reach to cover broadband providers so that it would be easier for law enforcement to tap Internet "phone calls" via Voice over Internet Protocol (VoIP) applications such as Vonage, as well as online "conversations" using various kinds of instant messaging (IM) programs like AOL Instant Messenger (AIM). The FCC responded with a "notice of proposed rulemaking" (NPRM), which proposes to introduce surveillance technology mandates to broadband Internet access and "managed" VoIP.

In its comments, EFF argues that this transformation in CALEA goes against the letter and the spirit of the law as it was originally written, which expressly ruled out information services like broadband.

"The NPRM relegates Congress' exclusion of information services to so much spilt ink," read the comments. Moreover, EFF argues, the rationale that law enforcement uses to justify its request -- that broadband has "significantly replaced" the telephone network -- is a misrepresentation that opens the door for CALEA to cover just about anything. "Any service that arguably replaces any portion of the prior telephony regime must look down the barrel of CALEA compliance."

In addition, the technological changes required by an expanded CALEA would undermine Internet security and subject new technologies to government review before they can be adopted for use with current Internet devices.

"Law enforcement already has the legal and technological means to access communications on the Internet," said EFF Staff Attorney Kurt Opsahl. "Expanding CALEA to cover broadband communication is not only unnecessary, it will retard innovation while depriving people of their privacy and security on the Internet."

Reply comments are due December 7.

Contact:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Posted by mikki at 09:58 PM | Permalink | Comments (0)

Seizure of Servers Hosting Indymedia Websites Violates the First Amendment

San Francisco, CA -- The Electronic Frontier Foundation (EFF) is representing a coalition of independent Internet journalists whose websites were shut down on Thursday, October 7, when their servers were seized by the FBI. The two servers, which were located in the United Kingdom and managed by San Antonio-based Rackspace Managed Hosting, hosted Indymedia's Internet radio station and more than 20 Indymedia websites, as well as several email lists.

The seizure was in response to a "Commissioner's Subpoena" issued at the request of a foreign government. Citing a gag order, Rackspace has provided no further details. An FBI spokesperson has confirmed that the subpoena was issued at the request of Italian and Swiss authorities. Earlier this month, the FBI made informal requests to both Rackspace and Indymedia to remove an Indymedia news story that included photos of undercover Swiss investigators posing as anti-globalization activists. At the time, the FBI admitted that the posting did not violate US law.

EFF has contacted the FBI to demand Indymedia's illegally seized servers be returned and is preparing for legal action in the event that negotiations with the FBI fail. EFF is also calling on Rackspace to challenge the government's illegal seizure. "If Rackspace stands behind its claim of providing 'Fanatical Support' to its customers, it will go to bat for Indymedia--one of its biggest customers--and demand that the FBI return the seized Internet servers," said Kurt Opsahl, EFF staff attorney. "Rackspace should also fight for its own rights and challenge the gag order preventing it from sharing its side of the story." A federal court in New York City recently found a similar gag order unconstitutional in Doe v. Ashcroft, the ACLU's challenge to a secret PATRIOT Act subpoena served against an Internet service provider.

"The FBI can't pull the plug on more than 20 news websites -- our modern printing presses -- based on a secret proceeding at the request of a foreign government. This is a flagrant violation of the First Amendment," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "As far as the Constitution is concerned, Indymedia has the same rights as any other news publisher. The government can't shut down the New York Times, and it can't shut down Indymedia."

The Indymedia seizure bears a striking resemblance to EFF's very first case, Steve Jackson Games v. US Secret Service. In that case, the Secret Service seized the hardware and software of Steve Jackson Games, an Austin, Texas-based computer game publisher. That seizure, which shut down an Internet bulletin board and email server in addition to disrupting the publisher's business, was found to be an illegal violation of the publisher's rights.

Contact:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

For inquiries about Indymedia:

Devin T. Theriot-Orr
Edwards Sieh Smith & Goodfriend
devin@essglaw.com

Posted by mikki at 02:22 PM | Permalink | Comments (0)

From the BBC

Iranian internet users start an unusual campaign against censorship - renaming blogs after banned newspapers. [BBC News | TECHNOLOGY]

Posted by mikki at 09:58 AM | Permalink | Comments (0)

A thought provoking article by Wendy Seltzer. Well worth the read.

Talk about false and misleading identification information, the recently introduced Fraudulent Online Identity Sanctions Act should really be called the "Slam the First Amendment Act." It bumps the penalties for trademark or copyright infringement to "willful" levels -- that's up to $150,000 in statutory damages per copyright infringement -- for the mere connection of the infringement to a domain name registered with false information. Never mind that using false information in the address or telephone number fields may be the only way for individuals to protect their privacy; or that the First Amendment rights to anononymous speech may depend on the ability to register a name with "false" pseudonymous contacts. Would Publius be slammed as a willful infringer if someone claimed that the Federalist Papers took a few too many quotations from other sources?

The maximum imprisonment other- wise provided by law for a felony offense shall be increased by 7 years if, in furtherance of that offense, the defendant knowingly provided material and misleading false contact information to a domain name registrar, domain name registry, or other domain name registration authority in connection with a domain name registration.

Thomas Roessler blogs the hearing and Susan Crawford goes into more detail on the bill.

Posted by mikki at 09:32 AM | Permalink | Comments (0)

A federal judge rejects a company's legal attempt to assail BadBusinessBureau.com, which features negative reviews from consumers who claim to have been "ripped off" by retailers. [CNET News.com]

Posted by mikki at 10:17 AM | Permalink

It is nice to know that telling the truth is finally vindicated in this country. But at what cost? An innocent man spent 16 months in prison.

So imagine this: An employee works for a software company. He discovers a problem with the software, tries to warn the company, but it does nothing. He quits, and then sends email to all the customers of the company, informing them of the security problem with the software. The flood of emails brings the email server down for a bit, but that admittedly does not cause significant damage. Nonetheless, the employee is criminally prosecuted for causing an “impairment to the integrity” of a computer system (by revealing its flaws) which resulted in more than $5,000 in damage (because now it was known to be flawed).

The employee is found guilty. He is sentenced and serves (yes, he actually serves) 16 months in a federal prison.

In America, you ask? Well, in fact, yes — justice in the Central District of California. But it gets better.

On appeal, the employee retains Jennifer Granick, executive director of Stanford’s Center for Internet and Society. She argued the obvious point: it can’t be “damage” to tell the truth about some company’s software — however ugly that truth might be.

Today the government agreed. In an extraordinary (and extraordinarily rare move) it confessed error. “On futher review,” the government wrote, “in light of defendent’s arguments on appeal, the government believes it was error to argue that defendant intended an ‘impairment’ to the integrity of [X’s] computer system.” The government asked that the conviction be vacated.

“In light of defendant’s arguments on appeal.”

Indeed, America: Where defendants sometimes get great lawyers, and where governments let justice admit it is wrong.

I am proud, and moved, by both.

Posted by mikki at 09:17 AM | Permalink

It is unfortunate that the predicted assaults on civil liberties and the First Amendment due to the poorly written and overly broad Patriot Act are coming true. The following example of government overstepping its bounds should give pause to anyone who uses the Internet as a forum for communication - ed.

The Subpoenas are Coming!
By Mark Rasch Sep 29 2003 05:00AM PT

Frequent readers of this space know that I am no apologist for hackers like Adrian Lamo, who, in the guise of protection, access others' computer systems without authorization, and then publicize these vulnerabilities.

When Lamo did this to the New York Times, he violated two of my cardinal rules: Don't make enemies with people appointed for life by the President of the United States; and don't make enemies of people who buy their ink by the gallon.

Now, in the scope of prosecuting Lamo, the FBI is doing the hacker one better by violating both of these precepts in one fell swoop.

The Bureau recently sent letters to a handful of reporters who have written stories about the Lamo case -- whether or not they have actually interviewed Lamo. The letters warn them to expect subpoenas for all documents relating to the hacker, including, apparently, their own notes, e-mails, impressions, interviews with third parties, independent investigations, privileged conversations and communications, off the record statements, and expense and travel reports related to stories about Lamo.

In short, everything.

Full Story Here

Posted by mikki at 01:35 PM | Permalink | Comments (0)

The Pennsylvania Attorney General agreed today to stop issuing secret censorship orders to Internet Service Providers (ISPs) in response to a lawsuit filed by the Center for Democracy and Technology (CDT) challenging the constitutionality of a controversial Pennsylvania child pornography statute. September 9, 2003 [Center for Democracy and Technology]

Posted by mikki at 10:27 AM | Permalink | Comments (0)

Electronic Frontier Foundation: Sentence Doesn't Match Crime [EFF: Press]

Posted by mikki at 12:21 PM | Permalink | Comments (0)