Digital Library (or Bookstore?) of Alexandria

The Google Book Search copyright settlement seems likely to have far-reaching consequences, and I wish I had time to read the whole 141 page settlement right now.

Generally this seems like a really Good Thing. It will in theory eventually provide digital access through libraries and universities to most books not currently in-print. Books out of copyright will of course continue to be fully browsable through Google to anyone. But now a huge number of out-of-print books that are still under copyright will be available through libraries and universities, or by buying access to a specific book from Google. 63% of all Google revenue from this project goes to the Book Rights Registry for distribution to publishers and authors. This is a win-win — the public gets access to books not previously available, and publishers/authors receive money they wouldn’t otherwise have been receiving.

That said, it’s easy to get excited about the prospect of more access to knowledge. But this settlement will likely create a huge precedent for other agreements and future congressional / judicial action in this area. Consequently, I think it’s important to seriously consider potential downsides to the settlement.

Some potential concerns:

• Because of the circumstances of the settlement, this agreement between two private parties effectively makes new law that affects the entire industry, not just the parties involved in the lawsuit.

• Book Rights Registry – how much power will this organization have to decide new issues, such as rules about derivative works, openness to working with companies other than Google, and compensation to authors not party to the class-action lawsuit? Will the BRR be like BMI/ASCAP or more like ICANN?

• Too much control by Google? Will the BRR really be open to working with other companies / organizations?

• Is the Google book interface really the interface we want for reading all our digital books? What about being able to download them, print them out, put them on portable devices, etc?

• It apparently doesn’t cover ‘orphan works’ because, I think, the rights holders have to be known to the Book Rights Registry.

• There are a whole lot of issues that come up just between authors and publishers. e.g. are the publishers going to fairly distribute royalties to all authors (not just to those involved in the settlement and hence in the BRR)?

• This agreement creates a (mutually beneficial) contractual relationship, but notably fails to address Fair Use. How will this affect issues that come up in the future, such as derivative works, sharing snippets of searched-for in-print books, etc? And will it affect the Viacom v. Google (YouTube) suit?

Further reading:
Lawrence Lessig’s response
Susan Crawford’s response
Settlement Agreement (summary)
Settlement Agreement (full)

(My thoughts are also influenced by a panel I attended that included mention of this issue by Jonathan Zittrain, Alex Macgillivray, and others.)

Internet Filtering

First there was this:
FCC Issues Open Invitation to Internet Filtering:

Buried in the [FCC's decision slamming Comcast for interfering with bittorrent traffic]… lurks an open invitation to internet service providers to filter content. In essence, the commission said carriers cannot discriminate against file sharing protocols, but they may act as a traffic cops and block illegal material and “transmissions that violate copyright law.”

Followed by this:
New Lobbying Group Calls for Internet Filtering:

Behind the lobby are AT&T, Cisco Systems, Microsoft, NBC Universal, Viacom and the Songwriters Guild of America. Among other things, the lobby, called Arts+Labs, says “network operators must have the flexibility to manage and expand their networks to defend against net pollution and illegal file-trafficking which threatens to congest and delay the network for all consumers.”

This is potentially huge (e.g. tech is incapable of dealing w/ fair use)… or perhaps this will be the straw that leads to everyone going encrypted.

Internet Politics: The Good (re: network neutrality)

Last week the FCC issued an order demanding that Comcast stop degrading the performance of BitTorrent over their network. Importantly, the FCC is indicating that ISPs cannot block or degrade the performance of legal applications or network services.¹

To quote Lessig, “the Commission has clearly recognized the importance of the Internet as a platform for technological growth and innovation.” To me this reads as the FCC recognizing at least to some extent that ISPs should be regulated more like utilities than like entertainment providers. The order does not establish law requiring network neutrality, but it establishes FCC jurisdiction over ISPs, and it shows that the FCC intends to enforce its 2005 non-binding Internet Policy Statement — which states that the FCC doesn’t want companies to interfere with access to content or competing services. Furthermore, as Harold Feld points out, the FCC clearly states its belief that government regulation to protect the open and vibrant character of the Internet furthers First Amendment values.

This is a Very Good Thing.

Further analysis:
/ Lessig’s letter to the FCC
/ Harold Feld — ‘Why This is A Huge Win’

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¹An exception exists if an ISP must target an application or network service for “network management” purposes. However, the FCC’s order makes clear that an ISP cannot run everything through this exception. If an ISP does contend targeting is necessary for network management, the ISP must inform customers of what they are doing rather than secretly degrading customers’ Internet.

Fair Use, Misrepresentations, & the DMCA

Not everything is depressing in the world of civil liberties & Internet politics. :-) I came across some tentatively good news today! We’ll see how it is applied as the case continues.

Someone actually decided to test the underused ‘misrepresentations’ section of the DMCA — the part that is supposed to limit the chilling effects of the DMCA. So far it has failed miserably to accomplish this goal, but in theory companies are liable for damages if they send cease & desist notices for things that they should know aren’t actually infringements of their copyright. So in this case a district judge sensibly ruled that companies must consider fair use before sending cease & desist letters. HOWEVER, it’s not clear whether this judge or any other will actually hold the companies accountable. The company will likely just get off by saying “oops.”

The part of Wired’s article that I found most galling though was this:
“Universal argued that copyright owners may lose the ability to respond rapidly to potential infringements if they are required to evaluate fair use prior to issuing takedown notices.” Apparently Universal believes that intimidating large numbers of innocent people is better than actually considering whether or not the cease & desist notices they send are actually legitimate.

The Real Future Danger to Net Neutrality

AT&T recently made clear that their customers are not permitted to use BitTorrent or other P2P apps on the company’s 3G high-speed wireless data network. This is significant because in the future most people will be using high-speed wireless data networks for a significant part of their Internet usage. Given that AT&T & Verizon may eventually be the only companies providing such access in the U.S., their choices about what protocols and parts of the Net customers can access will carry a great deal of weight. Even if people maintain unfettered, neutral connections at home (a questionable assumption, given Comcast’s actions), a non-neutral wireless Net could significantly hamper the continued ability of the Net to foster innovation & level playing fields.

On Property and Commons

A quote I came across today from an old Lessig speech:

“The ideal that seemed so central to killing the closed society of yesterday—property—that ideal is now closing the open society of today. The same tool of freedom of yesterday is becoming a tool of control today. Not the same control, or the same control to as evil an end. But, nonetheless, a control on creativity and innovation; a shifting of that control from individuals to corporations; from anyone to the few.”

Since I didn’t include context here, I should point out that Lessig is not arguing for the abolition of either real or “intellectual” property. He is arguing for the importance of a commons to creativity and innovation, as well as the dangers of a permission society where content controllers exert perfect control over uses of content.

Student Faces Expulsion for Facebook Study Group

I never post in this thing… Maybe I should fix that.

Anyway, this is another interesting story of consequences when traditionally accepted offline actions move online where they can be more easily monitored. (That said, it sounds like this guy is not completely guilt-free.)

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Facebook : The New Study Hall For The Wired Generation?

Ryerson student Chris Avenir is facing expulsion for taking part in a Facebook study group for one of his engineering courses.

Study groups may be a virtual trademark of the Ivory Tower – but a virtual study group has been slammed as cheating by Ryerson University.

the whole article

Does Google’s Ad Policy Help Companies / Organizations Suppress Criticism?

Background:

1. Google has a policy that trademark owners can register their legit trademarks with Google if they don’t want those trademarks to be used in the text of Google ads placed by others. (Within USA/Canada, this policy covers ad text only, not keywords.)

2. Someone recently tried to place a Google AdWords ad that criticized MoveOn for its 9/10 controversial nytimes ad. “MoveOn” and “MoveOn.org” are trademarks. MoveOn had previously followed Google’s aforementioned policy to request that others not be able to use those trademarks in the text of Google ads. As a result, Google rejected the ad.
3. IANAL, but as far as I can tell there is no legal reason why Google has to have the type of policy they do. There is a nominative use exception to TM law that would seem to apply to the attempted use of the term “MoveOn” in this case. In other words, people / companies / organizations are allowed to use others’ trademarks descriptively, including for the sake of criticism / comparison that is not misleading. (The nominative use link has specifics on the New Kids precedent.)

So, assuming that Google follows its policy consistently, the legitimate criticism isn’t that they are censoring a conservative political ad. The criticism is that Google’s trademark policy gives companies and organizations another way to limit criticism. Considering Google’s leading position in online advertising, their advertising policies have political consequences. So while I personally much prefer MoveOn’s politics to those of the guy who tried to place this ad, this is a much bigger issue. The same policy would allow Nike, for example, to prevent others from directly criticizing Nike in the text of their ads. Maybe this is an acceptable policy, but it should be recognized that it’s different from the way advertising has worked in other mediums.

Thoughts on DoJ’s Opposition to Network Neutrality Regulations

The Department of Justice yesterday submitted a filing to the FCC regarding that body’s ongoing consideration of Network Neutrality regulations. I’m not quite clear why the DoJ is in fact commenting on this issue at all, but the department made it very clear that they oppose network neutrality regulations. Here are my thoughts after reading the filing:

First, two somewhat valid points they make:

+ The DoJ says that no evidence has been shown of “systematic or widespread” abuse in the USA that would require a remedy. They are ignoring abuse outside our borders as “irrelevant”, and they say that abuse in the states was quickly remedied by reactive steps. This seems like a somewhat legitimate point, but only if we can actually trust the government to step in effectively when abuses do occur.

+ They say that not everyone agrees on exactly what network neutrality regulations should entail. That may be a valid point.

And now their two nonsensical arguments:

- They pull out the entirely irrelevant comparison to the USPS. It’s difficult to tell if they’re being intentionally dense or if they are actually that confused about the topic. They say that, like the USPS, ISPs should be able to charge differing amounts to end-users based on how fast they want their connection to be. I agree, of course. No one is saying that ISPs shouldn’t be able to offer differential pricing to end-users based on speed / bandwidth!

- And the DoJ suggests an absurd concern that if we don’t allow end-user ISPs to charge various content providers, then end users may be footed with the entire bill for network upgrades. They fail to note that the current network has in fact been built without end-user ISPs charging content providers, and yet the entire bill has not been footed by end users. Because content providers already pay their own ISPs lots of money for a fast connection, and that money filters down to the end-user ISPs (broadband providers) via peering arrangements, etc.

Nate Anderson, on Ars Technica, describes the actual issue best:

“Companies and consumers both currently pay to access the Internet; the money comes from both ends of the connection. And both groups are paying for complete access to the “cloud.” If network operators attempt to go after extra revenues from web operators, it would create a huge group of people “inside the cloud” that want to be paid. Instead of setting up a hot new web site, paying for plenty of bandwidth, and launching your business to the public, web site operators would need to pay not only their hosting provider but also Comcast, AT&T, Verizon, and a gazillion other networks that sit between them and their potential customers. Getting on the information superhighway thus becomes only the first stop on a very long toll road.”

The importance of general purpose PCs and neutral networks

The general purpose computer has been really important in fostering the huge amount of innovation that has accompanied the growth of the Internet. Many (most?) exciting new Internet applications have come about not because big companies invented them, but because ordinary people or small “niche” companies decided to experiment with something new. This experimentation has been made possible by the existence of two circumstances:

• general purpose personal computers that can run any applications

• a “neutral” (Internet) network that carries data from any application

There is no guarantee that these conditions will remain in place, and in fact we must constantly be on the lookout for efforts to change these conditions.

The prevalence of mobile phones, PDAs, iPods, Internet TVs, and a million other consumer devices threatens the “general purpose” PC model. People are increasingly accessing the Internet directly or indirectly through these proprietary “appliances”. These devices for the most part only run applications allowed by the device manufacturer / distributor. If a company such as Skype wants to have their application on one of these devices, they usually must negotiate with the device maker. They may have to pay that company a fee. This not only prevents people from writing their own applications for the devices, but it limits peoples’ ability to run innovative third-party applications. Jonathan Zittrain warns in a Harvard Business Review article of the dangers accompanying this shift from general purpose PCs to proprietary devices.

The importance of network neutrality has been discussed at length elsewhere, but the basic argument is that it would put a damper on innovation if the broadband providers (the telco & cable companies) are able to pick winners in the Internet service and application market. If Time Warner decides to limit the bandwidth alloted to VoIP from any company not paying Time Warner a bribe, for example, then only companies able to pay Time Warner that bribe will be able to gain traction in the VoIP market. (Time Warner customers would be unable to access innovative new VoIP services at competitive speeds.) Time Warner and other cable / telco providers have in fact been making noises about their desire to implement such policies.