[On the site,] you can upload . . . what the kids call playlists. [The program then streams the mp3s you chose on a url you pick.] I am not sure of the legal issues, but the system is smart enough to automatically link your songs to amazon.com to buy the mp3.

Only time will tell if this becomes a tolerated use. Kudos to the shifted librarian for catching the trend 2 months ago.

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Some tech/sci-fi writers give up story for ideas. They offer great fun and build excellent worlds, but when it comes to ending the story, they fall short. (I am thinking of early Stephenson here) Little Brother, however, delivers both ideas and story. That is great because one can dive in and enjoy the characters as they navigate the modern day 1984 world of the United States.

Despite, or perhaps because, the characters and the story draw one in, the details of this world are not all fun and games. Hacking, government power, security, racism, freedom, and more swirl around as decent teens trying to have a life, trying to grow and express themselves, and trying to make mischief, crash into a new world. Anyone who remembers useful acts of rebellion and the learning that goes with them should be able to identify with these kids. The beauty of having kids as main characters is that kids often have parents. Doctorow uses the parents quite well. They express the natural desire for stability and the way that once freedom-loving individuals can easily change as they age and see the world through a lens of how-do-I-protect-my-family? Whether they will protect their kids and what the protection will look like was a subtle but important theme which Doctorow navigates well. Perhaps thoughts of becoming a father fueled this sensitivity; perhaps not. Either way it works.

Some of the text tantalizes with ways for individuals to keep their communications free, secret, and/or anonymous as context requires. Exploring those issues allows Doctorow to investigate how trust of other individuals, businesses, and the government work together to create the world we enjoy or what happens if that trust fails. Cory is not shy. He does not stop there. The relationship between federal and state government, the role of the press, and how individuals can or cannot impact the system are all in play as well.

I will stop here as I do not want to give away the details. There is more to discuss, but I also hate spoilers. So here is a possible solution. For those wishing to see Cory’s take on his book check out his post on John Scalzi’s Big Idea series. In addition, Cory is quite busy, but we hope to do a phone interview this summer. That way the law issues can be addressed and those who wish to avoid spoilers can. No promises but if he and I can connect, it should be fun.

Last, you may wonder whether I’d say buy the book given that it can be downloaded for free. Well yes I would say buy it as it keeps Cory funded. Yet, what if you decide to download it? Should you donate to Cory? No. In fact he would prefer you buy a copy for you or someone you love as it works better for his publisher and him. Or ever the innovative person, Cory has another idea you may wish to pursue: a donation program for the book. In short, Cory and his assistant have assembled a list of libraries and schools that want the book. He suggests that people who downloaded the book and want to give him money, find a library or school, buy the book online, and ship it to the school. Everybody wins: the public, the publisher, and Cory (who will receive royalties). Cory sent me the file before he put it online so I could review it. Still, I plan on following his suggestion and donating a book.

Image: Courtesy of Pablo Defendini
The image is an early sketch for a potential paperback cover. Mr. Defendini has a portfolio that you may enjoy too.

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Here’s how the system works: NebuAd installs a hardware device it has designed inside the network of I.S.P.s One device can monitor all of the information going to and from 30,000 to 50,000 users. The device associates the information it sees with the I.P. address of the user.

A month ago NebuAd refused to discuss with whom it had partnered but claimed to “soon be monitoring the activities of 10 percent of Internet users in the country, mainly customers of small and medium Internet service providers.” Now, however, NebuAd has partnered with Charter Communications which is the fourth largest cable provider in the U.S. Charter told its customers about the change in a letter which in classic corporate spinese called the change a way to provide “an enhanced online experience that is more customized to your interests and activities.”

The system is opt-out. When challenged by The Times’ Saul Hansel about using opt-out rather than opt-in, Ted Schremp, Charter’s senior vice president for product management and strategy, claimed that opt-out is the norm for targeted ads on the Internet. That idea alone is worth researching. (Then again shame on the New York Times for checking the “remember me on this computer” box rather than leaving it blank.)

So how much could Charter make from Web browsing? Apparently “several dollars per month for every user that is monitored.” Let’s allow several to equal three dollars a month per customer. Now suppose Charter proceeds to turn all its 2.8 million customers into NebuAd surfers but two-thirds choose to opt out. Charter would still stand to make around $2.8 million per month or $33.6 million per year. Not a bad haul for connecting someone to the Internet. Put differently, under this system one will pay for the privilege (usually around $50 per month) of letting a company make money off what one does online.

How will all this play out? Most likely the apostles of the market and choice are lining up to share the good news that both are not coming but here. Of course whether a customer has a real choice in her home between two let alone more ISPs is up for grabs depending on where one lives. Furthermore, as ISPs seek more income (which is their duty) would the competitors really test the market? Or would they all install NebuAd style deveices and then charge for not having one’s surfing tracked (remember that do not list fee for your phone number?)? Talk about a bad default rule.

The bigger issues here are net neutrality and privacy. The discussions of those topics sometimes become quite abstract. Maybe bringing home how they intersect and impact the individual user will rally the populace against poor policies. Then again, if they give me a discount card, well heck, that could make me happy to pay for the privilege of giving up me privacy.

cross-posted at Concurring Opinions

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Problem number one is no more surprises. You don’t get two guys in a garage cooking up something like the spreadsheet - Internet telephony like Skype, Kazaa and other peer-to-peer music sharing, email - the World Wide Web itself came from a physicist who was goofing around. So to lose that ability to be able to cook up something and send it around and see whether it works, that would be a terrible loss. That’s one thing.

The other thing is that devices like the iPhone, whether they are, as in their first version, what I call sterile – just Steve Jobs gets to change them – or even in their second version, what I call contingently generative - third parties now can write code for the iPhone but Steve Jobs still gets to approve it or yank it if he doesn’t like it - that makes these things very controllable by regulators who go through people like Steve Jobs to do it. And I can give you an example of that.

TiVo sued EchoStar not long ago for patent infringement. They said that EchoStar made a digital video recorder that was too much like a TiVo. They won, and EchoStar owes them 90 million dollars. But then they asked for something more. They got an order from the judge that said within 30 days, EchoStar had to fry by a remote upgrade all but a handful of the EchoStar DVRs already sold and placed in living rooms around the world.

Reminds me of Mike’s post on the iBrick. Zittrain offers many ideas in the book to ensure that “non-technical people as much as possible can still meaningfully use technologies that let them experiment without the experiment blowing up in their faces.”

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As I argue in Property, Persona, and Preservation, given that our information is more and more technologically mediated, we need better systems to preserve our information. This case raises a related issue of once preserved what can be done with the information. Here, the Archive is preserving the information and then as a library allowing people to use that information. But because of the method of access, the FBI was able to ask for great detail about who looked at what information and when. Julie Cohen’s A Right to Read Anonymously: A Closer Look at “Copyright Management” In Cyberspace offers an explanation as to why the Archive’s win is so important. In short, reading anonymously involves identity of the reader and how we foster “freedom of thought and expression.”

In addition, the Wired article points out that despite the settlement the details of what was sought for example, the “kind of information the target was looking at or uploading — such as animal rights information or Muslim literature” were kept secret. There may be reason for such secrecy. Still, when Congressional audits show that “hundreds of thousands of NSLs” have been issued, the use has not been tracked, the FBI “can only estimate how many NSLs it has issued,” each time an NSL has been challenged, it has lost (only three times according to the article), but one needs the help of a major public interest law group to fight the subpoena, something is wrong.

One disturbing thing is that no one knows exactly how these NSLs are being used or managed or if they do, they can’t talk about it. That situation reminds me of the private military context where the government also had little sense of how many and under what terms the PMCs were used. In other words, lack of oversight often leads to abuse, but then many know that, right? Another problem is that again like the PMC context, it seems quite difficult to have any sunshine fall upon this process. Why not have a judge look at such a letter? It seems the information is not going anywhere. Quite the opposite; remember it is preserved.

There is more to say on secrecy but for now I recommend Secrecy: The American Experience by Daniel Patrick Moynihan. I think I have recommended it before and probably Patrick O’Donnell has offered other books on the topic (which is always welcome). But as it is on my mind and an excellent look at how secrecy can help and harm a fight against whomever our enemies may be, I offer it again.

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To me, the vastly more interesting and provocative part of Tim’s post is a news item that I missed 10 days ago:  Berkman Center Executive Director John Palfrey will become the new Director of the Harvard Law Library (the appointment is actually “Vice Dean of Library and Information Resources“).

Why interesting and provocative?  Not because John is a very smart and dynamic guy .  In fact, because John is a very smart and dynamic guy, the appointment seems almost expected and ordinary — and congrats to him and Harvard!

Instead, the appointment is Interesting and provocative because John lacks a graduate degree in librarianship, library science, or information science.  (His predecessor, the long-serving Harry Martin, received an MLS from — the University of Pittsburgh!)  He has an HLS JD and a Cambridge M.Phil; he’s a very well-trained lawyer and legal scholar who has been immersed in information policy for many years. 

Does this mean anything?  Michael Froomkin wrote recently about whether it takes an academic to lead a law school.  Answering Michael’s question: I think that it does, not because academics have some unique skill set, but because the lack of an academic pedigree means that winning acceptance inside the school and the university may be unusually complicated and time-consuming.  (Witness the drama unfolding in Morgantown.)  Does it take a librarian to lead a library? 

Harvard thinks not. I’m guessing that John Palfrey persuaded Elena Kagan, the HLS Dean, that the substantive and methodological challenges that librarians confront these days are not significantly different than the substantive and methodological challenges that any manager of a complex information environment confronts.  Not anyone can manage the Harvard Law Library, but there may no longer be anything distinctively “library-ish” about the position.

Is Harvard right?  And if it is, will other schools and universities agree?

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[Defendant is enjoined and restrained] from purchasing or using any form of advertising including keywords or “adwords” in internet advertising containing any mark incorporating Plaintiff’s Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term “ORION” as negative keywords or negative adwords in any internet advertising purchased or used.

So here the mark is Orion. The defendant has been found to have infringed. The normal range of prohibited future activities is in place. But in addition, the defendant must take steps to prevent its appearance on a search engine results page when someone is looking for the plaintiff’s services. The court explains:

For purposes of this court order, a “negative keyword” or “negative adword” shall mean a
special kind of advertiser keyword matching option that allows an advertiser to prevent its advertisement from appearing when the specific terms are a part of a given user’s internet search or search string. It does not infer that the Defendant may use the specified negative keywords or adwords for any other purpose.

Now it seems the defendant was rather blatantly trying to use the plaintiff’s mark (counsel appeared but an answer was not filed). Yet, if the plaintiff’s mark and business match the litany of strength that the court offers (“ranked fourth in the nation among community bank holding companies and thrifts for outstanding performance,” “In June of 2006, Plaintiff was ranked as Florida’s Top Performing Community Bank for the second consecutive year, and was also ranked among the nation’s top performing bank holding companies,” “In June of this year, American Bankers Association’s (ABA) Banking Journal, ranked Orion Bancorp, Inc., fifth in the nation for outstanding financial performance”), wouldn’t a competitor want to be able to appear when someone searched for the premiere bank of the region? Shouldn’t that be allowed?

Given the facts of this case, the defendant may have behaved so badly that such an option is not merited. Still as a general matter, one might infringe but still be allowed to compete. Requiring active steps so that one’s business does not appear in a search result goes a bit far. In a world of virtual shopping, attention is a key lever in building business. Many of the facts of this case point to infringement. But the negative adword limitation essentially stops someone from competing online. The concern is that the smaller player will barely be able, if at all, to get in someone’s face and say yes the larger company exists but so do we.

As larger matter, the Dinwoodie/Janis Dogan/Lemley use debate may inform this issue. Still, if I remember correctly, Dinwoodie and Janis think comparative advertising is a good thing but that use is not the way to protect it. Rather they offer that better injunctions will address the contextual issues. Rebecca Tushnet’s Gone in 60 Milliseconds: Trademark Law and Cognitive Science also merits a read as it questions harms based on association which seems to be part of the negative adwords solution here.

cross-posted at Concurring Opinions

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But it shouldn’t.

Taking most recent matters first, the Faculty Senate at WVU voted overwhemingly yesterday to ask that the university’s Board ask President Mike Garrison to resign if he does not resign voluntarily.

Why?  President Garrison is being asked to take responsibility for the university’s awarding an MBA retrospectively to a politically-connected former student who apparently dropped out of the business school’s program a decade ago, after completing substantially less than all of the program.   

The President himself was appointed at least in part due to his political connections, and many in Morgantown apparently smell his complicity, if not his direct participation, in this subversion of the process by which degrees are awarded.  Before his appointment, President Garrison was a practicing lawyer in West Virginia.  (Garrison’s law degree and undergraduate degree were both earned at WVU.) 

The Pittsburgh Post-Gazette’s own Woodward and Bernstein, Patricia Sabatini and Len Boselovic, have been pursuing this story relentlessly since last Fall.  The former student was appointed to a high-level corporate position in the Pittsburgh suburbs.  A pro forma call to the university’s Registrar to confirm her academic records turned up some puzzling discrepancies. 

The paper’s initial account of the mystery was published in December 2007.  After denials and stonewalling by the university, an independent committee appointed by the Provost and the Faculty Senate issued a blistering report on the matter roughly two weeks ago.  The degree was rescinded, and both the Dean of the business school and the Provost of the University have resigned.  (My Pitt colleague John Burkoff was a member of the committee.)

What will happen in the wake of the Senate vote?  There is clearly more drama to come.  According to this morning’s Post-Gazette:

Law professor and faculty senate member Patrick McGinley said his colleagues at WVU’s law school expressed to him two “defining moments” that fed their determination to seek Mr. Garrison’s resignation.

The first was board chairman Steve Goodwin’s comments to the student newspaper Friday, which Mr. McGinley said displayed contempt for the faculty.

State law puts the board, not the faculty senate, in charge of the university, and “if they don’t like that, the only way to change that is to change the law,” the paper quoted Mr. Goodwin as saying.

The second was Mr. Garrison’s response to questions during a television interview over the weekend in which he appeared to reject the findings of the investigative panel.

Western Pennsylvanians like to hype the athletic rivalry between Pitt and WVU, and they often like to look down on West Virginians.  But there is no schadenfreude in Pittsburgh today.  Every Pittsburgher I’ve talked with about the episode is saddened by it.  These are dark and tragic days for a university that deserves much better.

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The Colloquium itself was a non-public affair at the Radcliff Institute for Advanced Study.  It was described at the Center’s site as follows:

IP without IP
Exploratory Seminar; Humanities, Social Sciences, and Science

Mario Biagioli (History of Science, Harvard University)
Rochelle Dreyfuss (Law, New York University School of Law)

In the last ten years or so, intellectual property has gone from being a little-known part of the law to becoming a household term. The ubiquity of intellectual property in popular discourse has led to an intriguing (if problematic) transformation of its cultural meaning. Intellectual property remains a technical (and expanding) branch of the law, but it has also become a cultural emblem—a catch-all category standing for an extraordinary range of practices within the new information society. The very concept of knowledge (including notions of traditional knowledge and cultural heritage) have been often recast into IP—a category that is often much more extensive than (and sometimes even incongruous with) the actual domain of intellectual property law.

Taking the cultural reification of the concept of intellectual property as its starting point, “IP without IP” brings together scholars from legal studies, anthropology, economics, history of science, literature, business, and science to analyze the many ways in which intellectual property concerns are in fact often managed not through the tools provided by intellectual property law, but through specific relations between people, professional customs, etc. Through a range of empirical case studies, we want to question the conceptualization of IP as a form of property applicable to (or projectable on) an ever-widening range of products and claims by showing how access to and protection of knowledge and cultural productions can be achieved (and has been achieved) without resorting to the law. We do not present these practices as opposed to legally codified IP, but as elements of a landscape of social practices that include IP law and from which it could draw to reinvent itself in the face of mounting and widespread criticism.

That sort of discussion sounds familiar. 

Rebecca’s report makes clear that the dialogue was fast-paced and sophisticated, and so much so that only snippets of themes really come through in her blogging.  Among them:  There is a lot of fascinating work being done in IP-related domains by anthropologists, sociologists, historians of science, and students of organizational behavior.  And Rebecca doesn’t list or identify the Colloquium participants, which creates a challenge if you don’t already know who is who and why certain points are being made.  Those with an inside-baseball view of these disciplines read and benefit from an uncommonly casual “so he/she was there too! and isn’t that neat” flavor to the account. 

Rebecca’s meta-example of IP [mostly] Without IP suggests some of the strengths of describing a creative environment without being tied to a formal model (in this case, presentation-followed-by-comments-and-Q&A), and some of the weaknesses of that approach.  “Thick” descriptions of this sort can be inaccessible to outsiders, and at times they leave even insiders wanting more structure.  Certainly, as most of the Colloquium conversation seems to agree, interdisciplinary case studies are the future of IP scholarship, but case studies of what, and to what end?

There is certainly more to come on this theme.  Stay tuned.

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