Tuesday, June 24, 2003

my thoughts on government-mandated web filtering in public libraries It almost goes without saying that I think that this decision is wrong. Another example of the US Supreme Court being split down the middle with Justice O’Connor being the swing vote that gave the conservatives another thin majority. I hope that history judges the Rehnquist Supreme Court as harshly as it judges Dredd Scott. That said, I do think that this is a difficult issue. I don’t want weird people viewing porn and wanking over the keyboards where I work! It horrifies me how the most innocuous search term in a search engine -- or mistyped URL can lead to some very nasty results. This may sound like heresy to some librarians, but I don’t think the status quo was working well. Something needed to be done, but I think CIPA went way too far. It’s wrong to make everybody (meaning the less privileged teens & adults on the other side of the digital divide who can’t afford their own internet access) view the internet through the filter of what’s appropriate for a child. Even the Supreme Court admits this, but says that it’s sufficient that an adult can request to have the filters temporarily turned off. A commentator on today’s FutureTense (I must give a link to this Minnesota production) was correct when he mentioned how people will be very reluctant to ask library staff to have the “porn filters” turned off. So I call on all adult library patrons to thwart this paternalistic Supreme Court decision to demand that filters be turned off when they visit their public library. Not so you can look at porn, but just so that you can use the internet that hasn’t been filtered or dumbed-down or bowdlerized (now that’s a word that’s due for a revival!). Any librarian worth her or his salt would be happy to turn off the filters for this reason. Don’t expect such a positive reaction if you actually are planning on looking at porn in a public library. Whenever I get a minute, I should reread some jurisprudence. The law is only one means (the very official and blunt tool) for governing people’s behaviour. There are also personal ethics and social mores. I would hazard to guess that although most librarians would fight for your legal right to read anything you want, they would not be thrilled about somebody viewing porn in a their library or any other public place. Generally, social restraints are more pervasive but less enforceable than legal rules. That is why there is a danger when conservatives want all their social mores embodied in the law. There is a place for socially disapproved but legal behaviour. It is a murky area which is both a nasty cesspool and a helpful compost heap – which is fertile for humour, self-analysis and new ideas. Furthermore, there is something about the smell of this cesspool/compost heap which keeps the Borg of Conformity & Tyranny at bay. Because as soon as you want the law to mirror social mores – the first issue is who’s mores get chosen. Because that’s the thing, although a lot of social mores are held in common, they are not uniform. And although in a democracy, the majority has the right to do what it wants according to its constitutional powers, it would be very dangerous for a majority to use the its power to impose all of its social mores on everyone else – whether that majority happens to been in Parliament / Congress or the Supreme court. 9:05:34 PM

	Monday, June 9, 2003

musings about Content I was thinking of adding something like "a radical law librarian's perspective" at the end of the description, but decided against it, because I didn't like the idea of my description being 3 lines long. I was also toying with the idea of capitalizing the word Content or putting the word in quotation marks because I find it deeply ironic the way that all of the important things on the web have been reduced to being just one form of content or another. Sometimes I get the impression that some techie people think that one sort of content is interchangeable with any other sort of content. Of course, in a way this is true, but this attitude defeats the whole idea of content in the first place. The whole point is that words, images, sounds etc have context, and are not interchangeable! Also it leads to travesties like the Digital Millennium Copyright Act, which side-steps the crucial idea/expression of idea distinction by declaring everything to be digital media. Anyway, I didn't do this because a capital letter would have stood out like a sore thumb and some people think the ironic use of quotation marks to be pretentious - or something which Dr Evil likes to do :) Not that I really care if somebody thinks I'm pretentious - that's her/his problem - but I am aware that quotation marks lose their effectiveness if they're used too frequently. 11:21:38 AM

jurymandering and pliant juries Do lawyers want smart jurors?. Walter Olson suggests that smart lawyers often pick less intelligent jurors for a good reason. [via Cyberspaces] [Ernie the Attorney] 10:38:51 AM

	Sunday, April 27, 2003

truth and lies in public discourse: Fox, Nike and Kamiya This week I’ve musing about truth and lies in public discourse. They are quite different issues but it is ironic that as Salon’s Gary Kamiya is being castigated for his extremely honest and courageous essay about the fall of Baghdad, we see companies such as Fox News and Nike go to court to preserve their right to mislead the public. 1. Distorting the News The courts have officially ruled that it is okay for television news to lie and distort the truth. Accepting a defense rejected by three other Florida state judges, a Florida appeals court has reversed the $425,000 jury verdict in favor of journalist Jane Akre. Here's the full scoop: Jane Akre and Steve Wilson had produced an expose for WTVT/Fox News of Tampa about how Florida supermarkets were reneging on a promise not to sell hormone-laden milk from rBGH-injected cows. In their investigations, they also found many troubling things about the artificial hormone and its maker, Monsanto Company. Fox News had already advertised the expose, but the day before it was to air, the station received a threatening letter from Monsanto's lawyers. Fox ordered Akre to retract her story and do a slanted piece in favor of Monsanto, but Akre refused, on the grounds that it would be dishonest journalism. As a result, she was fired. Akre sued, but a Florida appeals court has now ruled that it is technically not against any law, rule or regulation to deliberately lie or distort the news on a television broadcast. [Reader Weekly, Duluth Minnesota] First, for the lawyer types, the case is New World Communications of Tampa v. Akre, 2003 WL 327505, 28 Fla. L. Weekly D460. The issue before the court was not whether broadcasters are allowed to mislead the public. Rather, it involved interpreting 448.102, Fla. Stat. (Supp. 1998), Florida’s private-sector whistler-blower law. In my view, the Court made its decision in the following two quotations: Even if we agreed with Akre that the FCC's news distortion policy was a "rule" as defined by section 120.52(15), her argument overlooks the fact that the whistle-blower's statute specifically limits the definition of "rule" to an "adopted" rule. § 448.101(4). "This limitation to 'adopted' material only appears deliberate, and well serves the public by hinging civil liability upon matters of which due notice, actual or imputed, has been conveyed." Forrester v. John B. Phipps, Inc., 643 So.2d 1109 (Fla. 1st DCA 1994). We find the legislature's use of the word "adopted" in the statute to be a limitation on the scope of conduct that will subject an employer to liability under the statute. … First, federal law recognizes a dichotomy between rulemaking and adjudication; it does not equate the two. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (Scalia, J., concurring). Second, while federal agencies may have discretion to formulate policy through the adjudicative process, the same is not true under Florida law. The Florida Legislature has limited state agencies' discretion to formulate policy through the adjudicative process by requiring agencies to formally adopt each agency statement that fits the definition of a "rule" under section 120.52. See § 120.54. As noted above, the legislature's use of the word "adopted" in the whistle-blower's statute was deliberate and was intended to limit the scope of conduct that will subject an employer to liability. This limitation is consistent with the legislature's requirement that agency statements that fit the definition of a "rule" be formally adopted. You might say that the Appellants (the Fox affiliate) won on a technicality. It doesn’t matter if they violated the FCC news distortion policy, because that policy had never been adopted according to the exact requirements of the Florida statute. Because of this, the District Court of Appeal did not need to decide whether the Appellants had in fact violated the FCC news distortion policy. The Court did discuss the news distortion issue somewhat. It recognized In re CBS Program "Hunger in America", 20 F.C.C.2d 143, 150-51 (1969) as the leading authority on the issue. It also cited a journal article: Chad Raphael, The FCC's Broadcast News Distortion Rules: Regulation by Drooping Eyelid, 6 Comm. L. & Policy 485 (2001). Much of the Hunger in America opinion concerns whether a broadcaster is liable if one of its rogue employees distorts the news – unknown and unbidden by management. The FCC wrote: [U]nless our investigation reveals involvement of the licensee or its management there will be no hazard to the station's licensed status. Such improper actions by employees without the knowledge of th licensee may raise questions as to whether the licensee is adequately supervising its employees, but normally will not raise an issue as to the licensee's character qualifications. If the facts in New World Communications of Tampa v. Akre are correct, it seems pretty clear that the Fox affiliate engaged in the “top down” management-mandated distortion which the FCC was concerned about here: Rigging or slanting the news is a most heinous act against the public interest -- indeed, there is no act more harmful to the public's ability to handle its affairs Violations of this news distortion policy are only relevant when the FCC is deciding whether to renew a broadcaster’s license. There are no other legal consequences for distorting the news and misleading the public. And can anyone imagine that the current FCC, headed by Michael Powell would give a Fox affiliate even a slap on the wrist for distorting the news? The law is an ass – as indicated by the result of the New World Communications of Tampa v. Akre – but politics is worse. 2. Nike's Right to Mislead The Christian Science Monitor has a good summary of the facts and issues involved (thanks to Howard Bashman for that cite ): The case, to be heard Wednesday, centers on Nike's ability to participate in public debate over its foreign business operations - which critics call dangerous and immoral - without being held liable for any false or misleading statements. The question is whether Nike is engaging in commercial speech, which is subject to civil charges if found to be false, or political speech, which enjoys greater protection under the First Amendment. The US Supreme Court is reviewing Kasky v. Nike, Inc., 93 Cal. Rptr. 2d 854 (2002), which reversed Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002). I will be pleasantly shocked if the Supreme Court does not rule in favour of Nike. It has been very interesting to skim through the amici briefs, most of which have been filed for Nike. I do not want Nike to win this case. Maybe it’s because I’m not American, but I do not think that free speech trumps every other right – especially the idea that companies should have the same freedom of speech as people! Freedom of speech becomes meaningless when money=speech. This means that although the poor have de jure freedom of speech, they have no de facto freedom of speech. Sorry to slip into legalese, but a legal right on paper is meaningless if there is no social or economic ability to exercise that right. So freedom of speech means the freedom to lie? Even in this country, it is not OK to use dishonesty to defame another person’s character. Corporations already have way too many rights – especially when considering their wealth and clout in media and politics. It is time to start scaling back, not expanding the legal personhood of corporations. I think that all corporate speech is advertising of some kind – whether to consumers or investors. In the company where I used to work, public relations was actually inside the marketing department. When the news about Nike’s sweatshop practices first came out, I decided to avoid Nike products. But if I heard convincing information from them that they had cleaned up their act, I’d be inclined to consider them again. In fact, I’d be more likely to trust information that did not obviously appear to be advertising. The point is that these statements do have an effect in the marketplace, therefore they should be regulated according to the rules of the marketplace. 3. Honesty will be distorted and used against you The treatment of Gary Kamiya’s article is different from the two court cases which I’ve mentioned, but it is also concerns distortion and the place of honesty or dishonesty in public discourse. O'Reilly-a-rama Here at Salon, we're used to having our arguments ripped out of context and turned into fodder for the right-wing media machine, but the feeding frenzy of distortion and lies surrounding the selective quotation from Gary Kamiya's "Liberation Day" op-ed over the past few days set a new standard for disingenuousness. You can read more about it in this Salon editorial. [Scott Rosenberg's Links & Comment] Kamiya’s main argument was that the fall of Saddam Hussein was something which everybody could feel glad about – whether they were for or against the war in Iraq. Because Saddam Hussein was a very nasty man – and whether or not the war was justified, or that it will open a Pandora’s Box of ethnic and religious hatreds in the Middle East – it is good to see him gone. In reaching this position, Gary Kamiya addressed his opposition to the war in the first place. He very honestly wrote: I have a confession: I have at times, as the war has unfolded, secretly wished for things to go wrong. Wished for the Iraqis to be more nationalistic, to resist longer. Wished for the Arab world to rise up in rage. Wished for all the things we feared would happen. I'm not alone: A number of serious, intelligent, morally sensitive people who oppose the war have told me they have had identical feelings. Of course, Bill O’Reilly and other right-wing commentators immediately jumped on these sentences, ignoring the point of Kamiya’s article – that as the war progressed, his position had evolved from that secret wish for things to go wrong. The moral of this incident is that as corporations extend their rights to lie and be misleading in public discourse, individuals will be punished for being too honest. The equivalent honesty would be if Bill O’Reilly admitted to that for a moment he really wanted to tear Jeremy Glick into “f**king pieces” for daring dispute the Right’s ownership of the 9/11 tragedy. 4:38:42 PM

	Monday, April 14, 2003

copy-protected CDs designed to have a lower sound quality when played on a computer Copy-control CD complaint:Qld businessman complains to ACCC about EMI's copy-control discs, by SamVarghese, Sydney Morning Herald. The complaint by Tom Dullemond, who runs a small company in Gladstone that sells software for writers, is based on the fact that these discs, when played on Windows and Apple PCs, do not produce the high quality CD sound one might expect from what looks like a music CD. Dullemond, who has like many others had his email bounced when writing to EMI, said the discs stated (in tiny print) that they would only play on audio CD players and the Windows/Apple operating systems. Due to this, complaints from people who were unable to play these discs in PC CD-Roms or any CD-drive that strictly adheres to the redbook specs for CDs (audio-CD players can play copy-control discs because they are more error-prone; DVD drives or other high-precision CD drives will most likely not play the new discs) could not be followed up, Dullemond said. My complaint, however, stemmed from the fact (confirmed by EMI) that CC (copy-control) discs when played in Windows and Apple PCs do not play the high quality CD sound one might expect from what looks like a music CD. They play back a low bitrate compressed .WMV file in a proprietary software audio player, he said. Dullemond, who lodged his complaint in early March, said he received a call from the ACCC soon after. The ACCC lady who spoke to me conceded that not disclosing this information to consumers (I had to do some serious internet digging and EMI tooth-pulling to find this out) could be pursued by the ACCC. After all, a consumer is told the CD they buy can't be copied - they're not told that the CD plays back low quality sound on computer systems. The ACCC refused to confirm that any complaint had been lodged. [A blog doesn't need a clever name] 11:03:15 PM

Liking Law.com in blue A New Look for Law.com. It seems Law.com got tired of all the blacks and browns, and has settled on a soothing blue as its new theme. Check it out. [Inter Alia] Best of all, it doesn't have the same clip art graphic used by Lexis and Liberty Check Printers - to name two - in ads run in 2001. 10:53:44 PM

	Monday, March 10, 2003

Moseley et al vs. Secret Catalogue: have trademarks reached their high-water mark? Supreme Court curbs trademarks' reach. A U.S. Supreme Court ruling gave a suprise legal boost to Americans who own Internet domains that criticize corporations or use their trademarks. [CNET News.com] [A blog doesn't need a clever name] Read the pdf version of the opinion from the US Supreme Court web site. 5:55:16 PM

	Wednesday, March 5, 2003

google should have jumped on this years ago - because the horse is well out of the barn now Google is Sending C&D Letters About Saying "To Google". Google apparently sent out a cease and desist letter for trademark violation to wordspy for using the verb, to Google. The lawyer for Google asks wordspy to, "help us to protect our brand by deleting the definition of "google" found at wordspy.com or revising it to take into account the trademark status of Google." Wordspy chose the later, with this addition: "(Note that Google[dot accent] is a trademark identifying the search technology and services of Google... [bIPlog] 9:43:13 PM

	Thursday, February 27, 2003

what happens when the US government can seize any .com domain name? In Web disputes, U.S. law rules the world, by Michael Geist, in the Toronto Star. ... [A blog doesn't need a clever name] The [Anticybersquatting Consumer Protection Act] statute, which applies to dot-com, dot-net, and dot-org domains, reaches that conclusion by referring to the fact that the domain name system's root server, the database that houses all domain names and their corresponding numeric addresses, is located in Virginia. The use of the in rem jurisdictional provision is a classic example of legislating outside national borders. For example, the provision surfaced in 2000 in a dispute between two Canadian parties over the technodome.com domain name. Although the trademark holder could have launched a trademark infringement action in Canada, where the courts have addressed cybersquatting issues on several occasions, it chose instead to launch an ACPA action in Virginia where it successfully invoked the in rem jurisdiction clause by suing the domain name, rather than its owner. So it looks that at least for disputes concerning most important domains, all roads lead to Virginia and US law will apply. This is still going to be a contentious area. I remember how outraged people were that the High Court of Australia dared to assume jurisdiction in the Dow Jones v. Gutnick case - and dared to reach a different outcome than an American court would have. But that tussle over jurisdiction is miniscule compared with what could happen. This week the news has come out that the US Government has seized domain names for non-cybersquatting purposes. The Department of Justice has seized the isonews.com domain because of the Digital Millennium Copyright Act. The site sold mod chips and was a forum for people wanting to play bootlegged console games. In related news the DEA took over sites that sold drug paraphenalia. So what do you get when ultimate power of domain names rests in the US, and a US government that is willing & able to use this power to advance its political agenda? This could be very messy indeed. If the DEA could seize a domain in the name of the war on drugs, imagine what could be done in the name of the war on terrorism or the war on Iraq? If the PATRIOT Act and PATRIOT Act 2 are any examples, I don't think that the US Government is interested in being restrained with this power. 9:47:29 PM