#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, [...]]]> In the spirit of the excellent colloquy here about Marvin’s thinking on First Amendment architectures, I bring up this news item: Arizona State University blocked both Web access to, and e-mail from, the change.org Web site. ASU students had begun a petition demanding that the university reduce tuition. The university essentially made three claims as to why it did so (below, in order of increasing stupidity):

1. It was a technical mistake;
2. Change.org was spamming ASU; and
3. ASU needs to “protect the use of our limited and valuable network resources for legitimate academic, research and administrative uses.”

#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, and sign it, you do need to block access to the Web site.

For #2, sorry, ASU, this isn’t spam. Spam is unsolicited bulk commercial e-mail. Change.org is, allegedly, sending unsolicited political e-mail. And that’s protected by the First Amendment – see, for example, the Virginia Supreme Court’s analysis of that state’s anti-spam law that covered political messages. Potential political spammers have a sharp disincentive to fill recipient’s inboxes – it’s a sure-fire way to annoy them into opposing your position.

For #3, ASU doesn’t get to determine what academic and research uses are “legitimate.” If they throttle P2P apps, that’s fine. If they limit file sizes for attachments, no problem. But deciding that the message from Change.org is not “legitimate” is classic, and unconstitutional, viewpoint discrimination.

This looks like censorship. I think it’s more likely to be stupidity: someone in ASU’s IT department decided to block these messages as spam, and to filter outbound Web requests to the site contained within those messages. But: with great power over the network comes great responsibility. Well-intentioned constitutional violations are still unlawful. It would also help if ASU’s spokesperson simply admitted the mistake rather than engaging in idiotic justification.

As I mention in Orwell’s Armchair, public actors are increasingly important sources of Internet access. But when ASU and other public universities take on the role of ISP, they need to remember that they are not AOL: their technical decisions are constrained not merely by tech resources, but by our commitment to free speech. Let’s hope the Sun Devils cool off on the filtering…

Cross-posted at Info/Law.

There is an introduction [...]]]> On February 14-16, we will host an online symposium on A Legal Theory for Autonomous Artificial Agents, by Samir Chopra and Laurence White. Given the great discussions at our previous symposiums for Tim Wu’s Master Switch  and Jonathan Zittrain’s Future of the Internet, I’m sure this one will be a treat.  Participants will include Ken Anderson, Ryan Calo, James Grimmelmann, Sonia Katyal, Ian Kerr, Andrea Matwyshyn, Deborah DeMott, Paul Ohm,  Ugo Pagallo, Lawrence Solum, Ramesh Subramanian and Harry Surden.  Chopra will be reading their posts and responding here, too.  I discussed the book with Chopra and Grimmelmann in Brooklyn a few months ago, and I believe the audience found fascinating the many present and future scenarios raised in it.  (If you’re interested in Google’s autonomous cars, drones, robots, or even the annoying little Microsoft paperclip guy, you’ll find something intriguing in the book.)

There is an introduction to the book below the fold.  (Chapter 2 of the book was published in the Illinois Journal of Law, Technology and Policy, and can be found online at SSRN).  We look forward to hosting the discussion!

Social and economic interactions today increasingly feature a new category of being: the artificial agent. It buys and sells goods; determines eligibility for legal entitlements like healthcare benefits; processes applications for visas and credit cards; collects, acquires and processes financial information; trades on stock markets; and so on. We use language inflected with intentions in describing our interactions with an artificial agent, as when we say “the shopping cart program wants to know my shipping address.” This being’s competence at settling into our lives, in taking on our tasks, leads us to attribute knowledge and motivations, and to delegate responsibility, to it. Its abilities, often approximating human ones and sometimes going beyond them, make it the object of fear and gratitude: it might spy on us, or it might relieve us of tedium and boredom.

The advances in the technical sophistication and autonomous functioning of these systems represent a logical continuation of our social adoption of technologies of automation. Agent programs represent just one end of a spectrum of technologies that automate human capacities and abilities, extend our cognitive apparatus, and become modeled enhancements of ourselves. More than ever before, it is coherent to speak of computer programs and hardware systems as agents working on our behalf. The spelling checker that corrects this page as it is written is a lexicographic agent that aids in our writing, as much an agent as the automated trading system of a major Wall Street brokerage, and the PR2 robot, a prototype personal robotic assistant (Markoff 2009). While some delegations of our work to such agents are the oft-promised ones of alleviating tedious labor, others are ethically problematic, as in robots taking on warfare roles (Singer 2009). Yet others enable a richer, wider set of social and economic interconnections in our networked society, especially evident in e-commerce (Papazoglu 2001).

As we increasingly interact with these artificial agents in unsupervised settings, with no human mediators, their seeming autonomy and increasingly sophisticated functionality and behavior, raises legal and philosophical questions. For as the number of interactions mediated by artificial agents increase, as they  become actors in literal, metaphorical and legal senses, it is ever more important to understand, and do justice to, the artificial agent’s role within our networks of social, political and economic relations. What is the standing of these entities in our socio-legal framework? What is the legal status of the commercial transactions they enter into? What legal status should artificial agents have? Should they be mere things, tools, and instrumentalities?  Do they have any rights, duties, obligations? What are the legal strategies to make room for these future residents of our polity and society? The increasing sophistication, use, and social embedding of computerized agents makes the coherent answering of older questions raised by mechanical automation ever more necessary.

Carving out a niche for a new category of legal actor is a task rich with legal and philosophical significance. The history of jurisprudence addressing doctrinal changes in the law suggests legal theorizing to accommodate artificial agents will inevitably find its pragmatic deliberations colored by philosophical musings over the nature and being of these agents. Conversely, the accommodation, within legal doctrines, of the artificial agent, will influence future philosophical theorizing about such agents, for such accommodation will invariably include conceptual and empirical assessments of their capacities and abilities. This interplay between law and philosophy is not new: philosophical debates on personhood, for instance, cannot proceed without an acknowledgement of the legal person, just as legal discussions on tort liability are grounded in a philosophical understanding of responsibility and causation.

This book seeks to advance interdisciplinary legal scholarship in answer to the conundrums posed by this new entity in our midst. Drawing upon both contemporary and classical legal and philosophical analysis, we attempt to develop a prescriptive legal theory to guide our interactions with artificial agents, whether as users or operators entering contracts, acquiring knowledge or causing harm through agents, or as persons to whom agents are capable of causing harm in their own right. We seek to apply and extend existing legal and philosophical theories of agency, knowledge attribution, liability, and personhood, to the many roles artificial agents can be expected to play and the legal challenges they will pose while so doing. We emphasize legal continuity, while seeking to refocus on deep existing questions in legal theory.

The artificial agent is here to stay; our task is to accommodate it in a manner that does justice to our interests and its abilities.

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. [...]]]> Cybersecurity is in the news: a network intrusion allegedly interfered with railroad signals in the Northwest in December; the Obama administration refused to support the Stop Online Piracy Act due to worries about interfering with DNSSEC; and the GAO concluded that the Department of Homeland Security is making things worse by oversharing. So, I’m fortunate that the Minnesota Law Review has just published the final version of Conundrum (available on SSRN), in which I argue that we should take an information-based approach to cybersecurity:

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. It addresses cybersecurity based upon identification of actors and intent, arguing that inherent defects in the Internet’s architecture must be remedied to enable attribution. These proposals, if adopted, would badly damage the Internet’s generative capacity for innovation. Drawing upon scholarship in economics, animal behavior, and mathematics, this Article takes a radical new path, offering a theoretical model oriented around information, in distinction to the near-obsession with technical infrastructure demonstrated by other models. It posits a regulatory focus on access and alteration of data, and on guaranteeing its integrity. Counterintuitively, it suggests that creating inefficient storage and connectivity best protects user capabilities to access and alter information, but this necessitates difficult tradeoffs with preventing unauthorized interaction with data. The Article outlines how to implement inefficient information storage and connectivity through legislation. Lastly, it describes the stakes in cybersecurity debates: adopting current scholarly approaches jeopardizes not only the Internet’s generative architecture, but also key normative commitments to free expression on-line.

Conundrum, 96 Minn. L. Rev. 584 (2011).

Cross-posted at Info/Law.

I argue in a forthcoming paper, Conundrum, that cybersecurity can only be understood as an information problem. Conundrum posits that, if we’re worried about ensuring access to critical information on-line, we should make the Net less efficient – building in redundancy. But for cybersecurity, information is like the porridge in Goldilocks: you can’t have too much or too little. For example, [...]]]> It may seem strange in a week where Megaupload’s owners were arrested and SOPA / PROTECT IP went under, but cybersecurity is the most important Internet issue out there. Examples? Chinese corporate espionage. Cyberweapons like Stuxnet. Anonymous DDOSing everyone from the Department of Justice to the RIAA. The Net is full of holes, and there are a lot of folks expert in slipping through them.

I argue in a forthcoming paper, Conundrum, that cybersecurity can only be understood as an information problem. Conundrum posits that, if we’re worried about ensuring access to critical information on-line, we should make the Net less efficient – building in redundancy. But for cybersecurity, information is like the porridge in Goldilocks: you can’t have too much or too little. For example, there was recent panic that a water pump burnout in Illinois was the work of cyberterrorists. It turned out that it was actually the work of a contractor for the utility who happened to be vacationing in Russia. (This is what you get for actually answering your pager.)

The “too little” problem can be described via two examples. First, prior to the attacks of September 11, 2001, the government had information about some of the hijackers, but was impeded by lack of information-sharing and by IT systems that made such sharing difficult. Second, denial of service attacks prevent Internet users from reaching sites they seek – a tactic perfected by Anonymous. The problem is the same: needed information is unavailable. I think the solution, as described in Conundrum, is:

increasing the inefficiency with which information is stored. The positive aspects of both access to and alteration of data emphasize the need to ensure that authorized users can reach, and modify, information. This is more likely to occur when users can reach data at multiple locations, both because it increases attackers’ difficulty in blocking their attempts, and because it provides fallback options if a given copy is not available. In short, data should reside in many places.

But there is also the “too much” problem. This is exemplified by the water pump fiasco: after 9/11, the federal government, including the Department of Homeland Security, began a massive information-sharing effort, such as through Fusion Centers. The difficulty is that the Fusion Centers, and other DHS projects, are simply firehosing information onto companies who constitute “critical infrastructure.” Much of this information is repetitive or simply wrong – as with the water pump report. Bad information can be worse than none at all: it distracts critical infrastructure operators, breeds mistrust, and consumes scarce security resources. The pendulum has swung too far the other way: from undersharing to oversharing. Finding the “just right” solution is impossible; this is a dynamic environment with constantly changing threats. But the government hasn’t yet made the effort to synthesize and analyze information before sounding the alarm. It must, or we will pay the price of either false alarms, or missed ones.

(A side note: I don’t put much stock in which federal agency takes the lead on cybersecurity – there are proposals for the Department of Defense, or the Department of Energy, among others – but why has the Obama administration delegated responsibility to DHS? Having the TSA set Internet policy hardly seems sensible. Beware of Web-based snow globes!)

Cross-posted at Info/Law.

SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.

For other Co-Op commentary, here’s Danielle Citron, [...]]]> I have an essay on the SOPA controversy at the Boston Review. My main point: SOPA and its ilk are terrible, but its opponents should rally behind a constructive alternative to promote funding for arts and culture. As I argue there:

SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.

For other Co-Op commentary, here’s Danielle Citron, Gerard Magliocca, and Derek Bambauer.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators [...]]]> Thanks to Danielle and the CoOp crew for having me! I’m excited.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.

Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.

I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.

Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)

Cross-posted at Info/Law.

1) An opinion piece in the Bergen Record, A Constitutional Right to Health Care.

2) A post at Madisonian, Internet Access as a Human Right.

I don’t think I have much to add to the already well-developed philosophical literature on positive rights, but I’d like to do more to bring this concept to an American audience.

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information [...]]]>

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.

Note: Corrected typo in first paragraph.

So today I was not entirely surprised to learn that the recent mass protests in Russia have a cyber-angle to them beyond the emphasis in news reports on how protesters have used Facebook and flash mobs.  Two angles, actually, that readers [...]]]> Danielle Citron and Daniel Solove – whose guest I am here at CO – always offer great insights into the brave new world of cyber law.  I find their work fascinating and worth a careful read.  But readers tend to bring a bit of themselves to whatever they read, and I’m no exception.  That part of my scholarship that focuses on Russian law sometimes makes it hard for me to avoid thinking about the original model for Big Brother that George Orwell had in mind when I read about the latest anxieties about the state’s relationship to cyberspace.

So today I was not entirely surprised to learn that the recent mass protests in Russia have a cyber-angle to them beyond the emphasis in news reports on how protesters have used Facebook and flash mobs.  Two angles, actually, that readers might miss and that I thought worth sharing.  The protests, as many know, were catalyzed by elections to the lower house of the Russian parliament, the State Duma, which were held Sunday, December 4. 

The first one was reported yesterday by Mark Franchetti in Moscow for the The Sunday Times (UK):

The dirtiest election in the country’s post-Soviet era began with a cyber attack, unprecedented both in its scale and its efficacy, on several websites critical of the Kremlin.

It was launched 90 minutes before polling stations opened and ended 90 minutes after they closed.  Half a dozen sites were shut down completely.

According to security experts employed by one of those affected, the onslaught came from 200,000 hacked computers across the world.  Unbeknown to their users, they requested simultaneous access to the sites, which crashed under the weight of demand.

“This was a concerted, well-organized attack which was very expensive to sustain.  It’s not some lone hacker causing trouble – rather something far more sinister, almost certainly linked to the security services,”  said one web security exeprt.

United Russia, the country’s largest party, led by Putin, denied any involvement but suspicion fell on the state — especially the FSB, the former KGB.  The only common link between the targeted sites was that all had posted an interactive map detailing alleged pre-election violations reported by ordinary citizens.

The map, which listed 6,000 alleged violations, was created by Golos, Russia’s only independent election monitoring group, whose site was among those disabled.

The offices of Golos, which is funded partly by the United States and European Union, waere raided by prosecutors in the run-up to the polling.  The Kremlin claimed that the West was meddling and Putin, who served in the KGB for 16 years, compared Russian recipients of foreign money to Judas.

The second report comes from ITAR-TASS, a Russian state-owned news service.  A report on its wire service suggested that someone (and probably a lot more than one)  in the Russian Interior Ministry really ought to read some of Solove’s and Citron’s work.  According to ITAR-TASS:

Alexei Moshkov, head of the bureau of special technical activities under the Interior Ministry, suggested on Thursday the taking of measures against anonymity in the Internet.  In his opinion, “today social networks not only have some advantages, but also create a potential threat to the fundamentals of society.”  Some mass media organs linked his proposal with the growth of protest activity of Russians after the parliamentary elections, in which the Internet is playing an important role.

Major General Moshkov believes that stability of the fundamentals of society may be ensured by banning the publication of anonymous reports, The Novye Izvestia [a Moscow newspaper -- ed.] writes.  “One may get registered under his real name, may report his address and after that communicate with others.  An honest and law-abiding person does not have to hide.  Let me remind you that there is no censorship in the Internet.  The “K” Department will not search for anybody or arrest anybody for criticism,” he stated point-blank.

Not everybody in Russia seems to agree with the general.  His boss, for example, Rashid Nurgaliyev, the Minister of the Interior.  Another ITAR-TASS post (which I’ve only been able to find in Russian) states:

 Head of the MVD [the Interior Ministry -- ed.] Rashid Nurgaliyev expressed his negative attitude toward required registration of the names and surnames of Internet users.  He declared this in answering a question of news agency  journalists concerning “face-control” on the network.

“This is stupidity and no one is planning to introduce this,” said Nurgaliyev.

Well, maybe there’s a reader out there after all!

He noted that on the one hand, the FBI had shut down a DNS changer fueled operation that “redirect[ed] infected computers to rogue websites.” As he explained, “The sheer scale of this DNSChanger scam is likely to increase the momentum for technology that makes it harder to subvert DNS for [...]]]> Many IP profs watch legislation, and we write about the way proposed laws are good or bad or wise or imprudent. I think the way the IP and online space are going will require more on the technology side. For example, the recent debates on the PROTECT IP Bill and SOPA had some interesting comments and observations about the security side of the way the bills would work. Stephen Cobb’s post captures the issue well.

He noted that on the one hand, the FBI had shut down a DNS changer fueled operation that “redirect[ed] infected computers to rogue websites.” As he explained, “The sheer scale of this DNSChanger scam is likely to increase the momentum for technology that makes it harder to subvert DNS for illegal purposes namely DNSSEC, short for DNS Security Extensions. The goal of DNSSEC is to protect the Internet from certain attacks, such as DNS cache poisoning, man-the-middle attacks, and the kind of DNS changing the FBI has so dramatically brought to light.”

On the other hand the proposed bills use the same technique to achieve their goals. “These bills would require DNS server operators in the US to replace the correct IP address for a website with an alternate address provided by the Attorney General’s office, if the website was “infringing.”

Mr Cobb captures a view that I think reflects what many in security believe. Finding solutions to online IP issues is not a bad idea. But the model on the table right now “is fundamentally incompatible with DNSSEC, a technology that will, if it is allowed to proceed, make many parts of the Internet more resistant to abuse, and expand the possibilities for lawful and profitable business in cyberspace. While the FBI and other law enforcement are working hard to stop the bad guys making millions by infecting our computers and subverting DNS it seems unwise to give private companies the ability to go ahead and change DNS armed only with court orders.”

And for those who want to get a bit more deep on the tech, Mr. Cobb offers “the whitepaper by Paul Vixie and other Internet lunimaries “Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill” (pdf file).

Last year, 2.8 million vinyl records were sold in the United States, according to the Nielsen Company, which tracks music sales through its SoundScan system. [...]]]> Analog: The Resurrection is coming to a store near you. At least it looks that way. The Times reports that vinyl is making a comeback. I happen to have a fair amount of vinyl from when I saved up to buy LPs as a kid. But now companies like Goota Groove are among about 20 places that press vinyl and that together make up “the fastest-growing segment of the beleaguered music industry.” I have to note that the “beleaguered” view may have some challengers. TechCrunch reported that per SoundScan music sales have started to inch up. Plus according the to Times:

Last year, 2.8 million vinyl records were sold in the United States, according to the Nielsen Company, which tracks music sales through its SoundScan system. This year’s numbers are about 40 percent higher, and the real figures are higher still. Most vinyl now is sold in independent record shops, at rock clubs and through homemade Web sites. “SoundScan only gets about 15 percent,” Slusarz told [the reporter], smiling. “The majority of the stuff we press, it doesn’t even have a bar code.”

Furthermore this paper The Creative Destruction of Copyright – Innovation in the Record Industry and Digital Copying found

Eight years into a severe recession and a surge in unauthorised copying, the number of new titles published each year continues to expand at roughly the same rate of growth during the recession period as it did during the preceding boom period.

This result is counter-intuitive regarding the severity and duration of the recession. It challenges a fundamental assumption in much of the economic literature on the impact of unauthorised, digital copying, which has focused on the impact of unauthorised copying on industry revenues. According to the observations presented above, this literature will not support strong conclusions concerning copyright policy. That is because the manipulated variable in copyright policy is not suppliers’ revenues but ‘innovation and creativity’ as means to secure a diverse supply of cultural products that is responsive to societal change. The empirical findings also deflate the case for public investments in greater copyright protection, for penal procedures against so-called copyright ‘pirates’, and for setting high compensatory payments in civil cases brought by rights holders against infringers.

In short, there’s much more going on in the music market than mainstream methods of measurement capture. Indeed, small run print may be making a comeback too at least in the form of zines.

All of these points remind that creativity is not always about incentives, “MOST zines are labors of love, done as side projects and hobbies. The goal isn’t to turn a profit, but rather to capture a cultural moment, which in turn, offers the creators the freedom to explore and experiment.” In addition, the problem of capturing what is going returns here. “It’s hard to track exactly how many zines are in circulation at any time. Some are handwritten sheets that are photocopied a few dozen times, stapled and distributed by hand. Others, more upscale, are printed professionally in runs of several hundred and may be sold online.”

It seems that new creativity, old mediums, and the desire for a differently crafted artifact are driving some interesting areas of business. For those researchers, note writers, innovation junkies, and cultural theorists out there, I’d say there is some research to be done about how these businesses are doing, the size of the vinyl and/or zine market, what technology may have allowed these endeavors to take off, the non-economic motivations in place here as well as the economic ones. There may be more, but those leap to mind.

In a very interesting [...]]]> There are reports that WikiLeaks may have to shut down owing to financial difficulties.  That will please many, like Vice President Biden, who think Julian Assange is nothing more than a high-tech terrorist.  If Assange’s explanation is to be credited (and I recognize this is a big “if” for some), the website’s financial difficulties stem from a concerted effort by U.S. officials to pressure financial intermediaries (i.e., PayPal, Master Card, Visa) not to permit donors to utilize their sites to make donations.  Some may recall that when WikiLeaks first began publishing confidential information about U.S. war operations and diplomacy, some government officials publicly called on these intermediaries to block donations.  This, in turn, led to denial-of-service reprisals by hackers against the cooperating intermediaries.

In a very interesting recent article entitled Orwell’s Armchair, Derek Bambauer (Brooklyn Law) argues that governments have turned to persuasion of intermediaries and other indirect forms of “soft censorship” to control Internet content.  Bambauer argues that through these indirect methods, government officials are engaging in a form of Internet censorship that is often as or more effective than “hard” forms of legal censorship.  Focusing on issues of transparency, breadth, and accountability, Bambauer argues that, in general, soft censorship is less legitimate than hard censorship.  He urges, perhaps counter-intuitively, that the government ought to proceed by way of statute if it intends to censor or regulate content on the Internet.

My point here is not to assess the merits of Bambauer’s proposal.  I’m more interested in his descriptive claim — namely, that despite all the talk in the U.S. of a free and unfettered Internet, the U.S. government is indeed “censoring” content in this space.  I think the WikiLeaks case highlights one of the most pressing concerns in what I refer to in a forthcoming article as the “emerging global theater.”  Faced with diminished power to control the flow of information on the Internet, officials in the U.S. are naturally seeking other means by which to regulate certain types of harmful content (i.e., IP infringement, terrorist advocacy, disclosure of government secrets).  Many of these means are, as Bambauer claims, less transparent than legislation or administrative regulation.  We can debate whether certain forms of “soft” censorship constitute state action, or even “censorship.”  However, there is little question that what Bambauer refers to as the government’s “toolkit” for influencing the content Americans and others have access to on the Internet contains a set of “soft” components; these will become increasingly important in terms of online content control in the years to come.  Methods of “soft censorship” will not likely result in absolute suppression of content.   One of the things the government is learning is that content does not simply disappear from the Internet, even when the speaker is jailed or executed.  However, both soft and hard forms of regulation can still have a signficant effect on the free flow of online information.  Bambauer’s article is important insofar as it nudges us to think more carefully about different forms of content control in cyberspace.

According to Marshall, TPM filed a Freedom of Information Act request for the mugshots [...]]]> On Friday evening, within hours of posting U.S. Marshal Service mugshots of alleged members of Internet “hacktivist” group Anonymous, TalkingPointsMemo.com became the target of a relentless “distributed denial of service” or DDoS attack. According to a statement released by TPM founder and publisher Josh Marshall on TPM’s Facebook page, visitors could not access the site a little after 5 p.m. eastern time. While no one knows for sure, TPM has inferred that Anonymous or people affiliated with the group are probably responsible for the attack.  (That TPM turned to Facebook to publish a statement is ironic because Anonymous has vowed to shutdown the social networking site later this fall.) The TPM site remains down as of this posting.

According to Marshall, TPM filed a Freedom of Information Act request for the mugshots earlier this summer, and posted them as soon as they obtained them. For the past six years, according to Marshall, the news site has routinely “published mugshots of numerous people accused or convicted of various crimes” that are the subject of its reporting. I’ve clicked through the photos of hypocrites and hucksters in elective office as well as random mugshots of mobsters and celebrities to satiate an admittedly morbid curiosity. TPM, as with many other major news organizations, knows this. The questions for TPM are ethical and legal: what is it about these admittedly alluring photos of the smirks, glares, and shock typical of mugshots that adds to the story, and justifies the ostensible invasion of privacy?

This episode in vigilante bullyism comes only months after members of Anonymous were arrested for the DDoS attack on PayPal last December. The group launched this earlier attack to punish PayPal for rashly severing its commercial ties with Wikileaks, the whistle-blowing entity led by media darling Julian Assange, soon after Wikileaks released sensitive U.S. State Department cables.

The more you pay attention, the more this most recent affair sounds like a convoluted high-tech inside-baseball soap-opera. But, at bottom, this case stands as another ambiguous artifact in the persistent question about the efficacy of government-promulgated laws in relation to the Internet. In this case, sophisticated vengeful hackers were the victims of overzealous investigative journalism and, get this, entitled to government-promulgated privacy protections. Whether they want those protections invoked, however, is another question. For now, Anonymous and their allies are opting for tried-and-true hacktivist self-help.

This most recent conflict with the left-leaning TPM would not be so interesting if, for the past several years, TPM’s influence in the complex political economy and ecology of D.C.-based political news reporting had not grown as rapidly as it has. TPM’s popularity has perhaps ballooned as rapidly as the circulation and relevance of the traditional print news organizations have diminished.  It is evidently now part of the media establishment.

Just as importantly, this conflict raises interesting legal questions about the practice of publishing mugshots. In this case, TPM chose to publish mugshots of people who apparently have yet to be found guilty of the charges related to the attack on PayPal. Why post those pictures? Perhaps TPM sought to humanize a group whose members have hidden behind Internet communication technology and the iconic image of a masked vigilante hero.

In any event, as an ethical matter, TPM may have gone too far. Even the U.S. Marshal Service has a policy of not releasing mugshots, because, pursuant to FOIA Section 7(c)’s, releasing such photos would violate the privacy interests of criminal defendants. This would be a hard-and-fast restriction on such releases across the country but for a 1996 Sixth Circuit decision requiring the agency to honor federal FOIA requests for U.S. Marshal Service mugshots from anywhere around the country as long as the people submitting the request reside or work in the states within the Sixth Circuit. (The Sixth Circuit’s holding recently came up in the context of the creepy mugshot of Jared Loughner, the man who shot U.S. Representative Gabrielle Giffords and killed six people in Arizona earlier this year.) This is how TPM got the photos even though their offices are in New York and DC.

At a minimum, TPM’s decision, while understandable, raises serious questions about ethics in Internet journalism. These questions become all the more fascinating when, as here, the defendants’ alleged criminal conduct is so intertwined with their ambition, right or wrong, for anonymity.

I have found that Comic-Con is a prime beneficiary of the decline of anonymity in online social networks.

Facebook may be leading the way in the fight against anonymity, but digital communities built around shared interest in science fiction are [...]]]> Comic-Con is many things: awesome, hilarious, tragic, fun, hilarious, expensive and hilarious. Every July, San Diego becomes the homeof more than just balmy temperatures and the alt-rock tones of Jason Mraz; it hosts Comic-Con, an extraordinary pop culture event that brings together Trekkies and Chris Evans (the 2011 Captain America), Jedis and Ryan Kwanten (of True Blood) and more than a few people who have never picked up a comic book. I’ve joined the crowds the past two years because, well, it’s what you do in San Diego this weekend.

I have found that Comic-Con is a prime beneficiary of the decline of anonymity in online social networks.

Facebook may be leading the way in the fight against anonymity, but digital communities built around shared interest in science fiction are giving Mark Zuckerberg a run for his anti-anonymity money. To be sure, online games like World of Warcraft (WoW) allow you to create fantastic identities and personae for yourself, but I had a feeling they have become so much more than that. I did not know from experience: I enjoy Sci Fi and have my share of SyFy shows waiting on my DVR, but I’ve never played WoW. I was never a big gamer, even when “Where in the World is Carmen Sandiego” actually came on those large black floppy discs. So, I did what any nerd would do: I went to Comic-Con to test a theory.

I looked for groups where members were of similar ages (thus excluding families), but did not restrict myself to any particular age, race, gender or costume. I spoke to about 100 people. I wanted to know where they met their friends: online or in person? If online, on what platform? If not on a traditional social networking site like Facebook, where? Did they ever have pseudonyms or online identities that hid their real identities? If so, how and when did they come out of the closet to meet each other? In other words, I was trying to understand the role of online anonymity in social interaction among people at Comic-Con, many of whom are highly wired.

Of 107 people, 67 met the friends they were with at the time online. Notably, that is not the same as saying that nearly 2/3 of respondents came to Comic-Con with people they met online, but still, that is a staggering number! In any event, all of them eventually ”met” or “found” each other on Facebook, but some initially linked up through sci-fi themed groups. But, since it all happened through Facebook, no one was anonymous. 

Not all relationships started on Facebook’s science fiction corner. A few knew each other as frequent commenters on Gateworld.net, an all-things-Stargate fan website; some were WoW buddies who “never kept [themselves]hidden. He sounded cool, so whatever. It’s all on Facebook or MySpace anyway.” Another young man met his Jedi-clad friend “playing a few different online games. In the chat rooms, he mentioned he was from China and I thought that was so cool, especially since I live in Georgia.” He meant the country, not the state. The two struck up a friendship, became MySpace “friends,” then Facebook “friends” and then decided that they both should meet each others’ friends at Comic-Con. I also met a few young women who lamented that I wasn’t in costume and said that they too bonded online as three of the precious few females to comment about the show Warehouse 13 with any frequency. “As soon as I saw another girl, I immediately asked who she was and where she was. She then friended me on Facebook and I had a friend in a place called Riverside, California. I live in Oklahoma.”

Comic-Con attendees bear the brunt of a lot of stereotypes, none more common than of the adolescent, nonathletic boy who projects the kind of person he wants to be into his WoW elf. But, my initial research suggests that these men and women are not hiding behind the perceived anonymity that their online games could provide. Instead, they see their digital selves as extensions of their physical selves and their online identities as ways to help them meet people in real life. It is difficult for all of us to meet new people, so while an elf-self may be a foot in the door, the man behind the elf wants nothing more than to drop his mask and allow his digital community to supplement his physical community.

Admittedly, my tiny sample set answered informal questions in an unscientific survey. But, this concept — who we really are online and what are we really doing — has implications for the kind of policies websites, intermediaries and users would want to adopt to make the Internet a safe community for all. If we don’t want to be anonymous and have less and less need for it, why should we put safety and certain rights at risk in the name of protecting absolute anonymity? If even elf-selves are eschewing anonymity because of the community-building possibilities of Facebook and Gateworld.net, perhaps anonymity is not part of the liberating potential of the Internet. Perhaps community-building is.