Category Archives: Legal Issues

When the president talks to god

Looking around the ‘net for a copy of the new(er) Bright Eyes single, When the President Talks to God.

Found it on iTunes for 99 cents.

Then I found this link, through the publisher, for a free iTunes download of the song.

Thought to myself, “Self…that is really odd. Why would the publisher provide a free download through the iTunes interface, when iTunes charges for it? Why not simply have the iTunes link be a free download? Or instead provide an MP3 download on your site rather than pushing people through iTunes…”

Just another oddity in the world of DRM/copyright.

House of cards

“If this were a dictatorship, it’d be a heck of a lot easier, just so long as I’m the dictator.” – George W. Bush, Transition of Power: President-Elect Bush Meets With Congressional Leaders on Capitol Hill. Aired December 18, 2000 – 12:00 p.m. ET

Finally, maybe, people are beginning to see that President Bush has overstepped his bounds. The recent wiretapping scandal has brought both parties down around his ears, and the American people are slowly realizing what sort of person they elected.

Absolutely amazing analysis over at Bruce Schneier’s blog. Excerpts below, but you really should read his whole piece, as well as the copious linkouts to other stories.

In defending this secret spying on Americans, Bush said that he relied on his constitutional powers (Article 2) and the joint resolution passed by Congress after 9/11 that led to the war in Iraq. This rationale was spelled out in a memo written by John Yoo, a White House attorney, less than two weeks after the attacks of 9/11. It’s a dense read and a terrifying piece of legal contortionism, but it basically says that the president has unlimited powers to fight terrorism. He can spy on anyone, arrest anyone, and kidnap anyone and ship him to another country … merely on the suspicion that he might be a terrorist. And according to the memo, this power lasts until there is no more terrorism in the world.

Yoo then says: “The terrorist incidents of September 11, 2001, were surely far graver a threat to the national security of the United States than the 1998 attacks. … The President’s power to respond militarily to the later attacks must be correspondingly broader.”

This is novel reasoning. It’s as if the police would have greater powers when investigating a murder than a burglary.

This is indefinite dictatorial power. And I don’t use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship. Then he immediately started using it to avoid the law.

Indeed. Just a few years ago, the American people decided that we would impeach a president because he lied under oath about a blowjob. Why aren’t we impeaching Bush for directly ignoring the Constitution of the United States?

Become a Commoner

Become A Commoner

I’ve added a couple of image links to my sidebars in support of the Creative Commons fundraising effort…they are trying to raise $250K before Dec 31st, and are 1/5 or so of the way there. If you do any giving over the holiday season, this is a great cause to give to, since their work benefits everyone by making information and media easier to access. So if you’ve got $5, send it along to Creative Commons.

Blogs and Jobs

An interesting article came across the wire today from the Chronicle of Higher Education, entitled Bloggers Need Not Apply. A few snippets from the article, with commentary:

What is it with job seekers who also write blogs? Our recent faculty search at Quaint Old College resulted in a number of bloggers among our semifinalists. Those candidates looked good enough on paper to merit a phone interview, after which they were still being seriously considered for an on-campus interview.

That’s when the committee took a look at their online activity.

In some cases, a Google search of the candidate’s name turned up his or her blog. Other candidates told us about their Web site, even making sure we had the URL so we wouldn’t fail to find it. In one case, a candidate had mentioned it in the cover letter. We felt compelled to follow up in each of those instances, and it turned out to be every bit as eye-opening as a train wreck.

I can certainly understand following up on the provided URL (since the candidate clearly wanted it followed, or he/she wouldn’t have provided it), but how much detective work is too much? Yes, a Google search takes 2 minutes, and can provide you with a lot of publically accessible info on the person. But LOTS of public information isn’t allowed to be asked in an interview (for instance, whether the candidate is married is public information, in the form of a marriage license, but it is off limits for a job interview). What would the legal ramifications be if Job Applicant A was denied a position, discovered that it was partially due to a Google search (which happened to reveal his/her marital status) and sued the university on that grounds? I don’t know the answer, but I’m willing to bet that it’s possible there’s a case there.

Worst of all, for professional academics, it’s a publishing medium with no vetting process, no review board, and no editor. The author is the sole judge of what constitutes publishable material, and the medium allows for instantaneous distribution. After wrapping up a juicy rant at 3 a.m., it only takes a few clicks to put it into global circulation

“Worst of all…”????? That’s the best aspect of the publication medium in question. The harkens back to the academic bias I talked about in the past, as well as the wonderful piece by Jeff Pomerantz that I’ve pointed to before. Unfiltered writing is powerful writing.

The most worrisome part of the article by far is this jewel of a paragraph:

The content of the blog may be less worrisome than the fact of the blog itself. Several committee members expressed concern that a blogger who joined our staff might air departmental dirty laundry (real or imagined) on the cyber clothesline for the world to see. Past good behavior is no guarantee against future lapses of professional decorum.

Sure…and a clean record of sanity and lack of criminal record is no guarantee that the applicant won’t come into work and bludgeon everyone to death with his copy of the OED either. If you don’t trust your potential employee because he/she writes things that others might read…well…let’s just say that’s a bit on the paranoid side. Ok, I’ll be a little more blunt: it’s fucking stupid (see, that’s exactly the sort of thing they were worried about…).

I’d love to hear others thoughts on this topic….esp. the legality of the searches/disqualifications due to online information. The “to blog or not to blog” question is one that came up repeatedly during both Betsy and my job interviews these past couple of years, and I’m not sure there’s an easy, across-the-board answer. I made a choice that if a committee decided they didn’t want me because of my blogging, then I certainly didn’t want to work there, and that was fine.

EDIT: Thanks to Justin, here’s a couple of other people discussing this article: Tygar-blog and Planned Obsolescence.

EDIT (2): Another note on the article over at PomeRantz.

Exciting news

As of last night, I’m officially a moderator for, the new collaboration between the Internet Archive, Bryght, Creative Commons, Socialtext, and TuCows (among possible others). I’ll be helping them identify copyright/fair use issues in uploaded content, and contact users and such regarding those issues.

I don’t know if I can adequately express my excitement at helping out with such an ambitious project! With an advisory board composed of the biggest names in digital IP and online culture (Lessig, B0yle, Kahle, Rheingold, Gillmor, Searls) this is going to be huge.

I’ll blog more as I find out more about my role.

Reading aloud allowed

Just days after Jessamyn’s post regarding DRM, my good friend Catherine emails me this DRM Rights statement from an e-book that she was helping a patron with.

Adsorption: Theory, Modeling, and Analysis. By: Jozsef Toth
File Size: 6825KB
Published: 05/10/2002
E-ISBN: 0824744497

DRM Rights:
Copy 25 selections every 1 day(s)
Print 25 pages every 1 day(s)
Reading aloud allowed
Book expires 150 day(s) after download
Note that Adobe eBooks cannot be shared.

I think the insanity speaks for itself. Oh how I hate thee, DRM…stupid, stupid media companies. I know that eventually the reasonable, intelligent media will overcome the stupid, dinosaur media, but I’m no longer confident it will happen in my lifetime. DRM does nothing to stop theft of IP, nor to delay or dissuade those who would traffic in media in infringing ways. It only prevents the average user from using media in the ways they wish.

I had a conversation with my good friend Barron just the other day about why it was that he couldn’t listen to his Velvet Revolver album on his shiny new iPod. After I explained to him that in order to do so he would have to break the law, his response was basically: That’s the stupidest thing I’ve ever heard.

Indeed it is.

Note: I am giving explicit permission for the reading aloud of this post.

Even more Gormangate followup

And the Gormangate news continues. LISNews put up a summary of the blog coverage, and Library Journal published a reaction piece on the coverage of the story by bloggers, which Karen Schnieder proceeded to take apart with near surgical precision. I don’t really have much to add to her pitch perfect analysis, with the exception of this quote from LJ:

Gorman, whose views do not represent the official positions of either ALA or California State University Fresno (where he directs the library), has received more than 100 messages—more than half of them sent pseudonymously.

Karen does a great job analyzing the first part of this, but I’m a bit interested in the last bit. Why take the time to point out that some of the messages were sent anonymously? The only reason to do so that I can imagine is an attempt to lessen their impact. If the people can’t even put their name on a letter, why should we take them seriously, right? I can’t see any other reason for LJ to point this out, and that’s what bothers me most.

In this country (the US, for those keeping track) we have a longstanding tradition, upheld by the highest court in the land, of anonymous criticism. The courts have long held that for speech to be truly free, one aspect of that is the freedom to be anonymous in your speech. In the central case for this right, McIntyre v. Ohio Election Commission, Justice John Paul Stevens wrote:

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.

In an even earlier case, Talley v California, Justice Hugo Black, noted:

Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.

In addition to the various poor journalistic practices pointed out by Karen, to be dismissive of anonymous criticism is to be ignorant of the history of speech in this country. I would expect better of Library Journal.

EDIT: The Shifted Librarian has a humorous look at possible new topics for Gorman to examine.

Help reform copyright law

The US Copyright office is looking for stories about Orphaned works (works where you wish to use them, but the copyright status is either impossible to determine or so complicated as to be enormously costly to determine). As the website describes it:

For designers, academics, artists, musicians, and filmmakers, using copyrighted works can be a huge headache. It can be impossible to find out if a particular work is still under copyright or not. And even when people would happily pay to use a copyrighted photo, passage, or video clip, it’s often impossible (or extremely costly) to find the copyright holder. When this happens, everybody loses. Artists can’t realize their creative vision, academics can’t clearly communicate their ideas, and copyright holders don’t get paid. Even worse, important pieces of our culture get needlessly locked away.

The site is being ran by the EFF, and Public Knowledge, and is basically a clearinghouse form that sends comments directly to the US Copyright office. This is an important request, and the more comments that are sent in the better chance we have of reforming copyright law into something resembling its original purpose:

The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

(United States Constitution, Article I, Section 8)

But hurry! The deadline for comments is March 25th!

The new segregation

So, in reflection of the results from the election, I have a few more thoughts about the fallout.

I fail to see how any rational human being can’t see the connection between “gay marriage is wrong” and “interracial marriage is wrong.” They are both stupid, bigoted, irrational beliefs. Yes, I understand that all the fundamentalists and evangelicals and other loons believe that to be gay is a sin. Guess what? They are wrong. Just like people who believed fervently that racial divisions were somehow illustrative of real divisions of importance and agency were wrong.

The fact that the people of 11 states passed laws/amendments that ban gay marriage in their state both sickens and concerns me. They do realize that there are gay people in their states, right? And that they do things like, oh…work, and pay taxes? The LGBTQ communities in these states should be apoplectic with rage about now, and I say they show the states how unfair and backwards and blindingly silly that these amendments are.

Move. Go to a state that doesn’t treat you like a sub-human. If the states see a drop in the economic structure due to a mass exodus, perhaps someone will notice. Support studies that show that LGBTQ parents that raise children do so as well or better than heterosexual couples. Let your state know that to discriminate on the basis of sexual preference is no different than discrimination on the basis of race. The fight for racial equality in this country took many hundreds of years, and is still ongoing. The LGBTQ community has a fight on their hands, and it’s important that those of us who are not members of that community recognize and work with them to fix the harm that has been done this week.

I’m confused, angered, and more than a little embarrassed at the fact that these amendments passed…it’s going to take a long time for me to trust in my country again.

Good news on the DMCA front

The Internet Archive (one of the coolest sites on the ‘net, if you haven’t checked it out) has recieved an exception to the DMCA for the purposes of archiving:

# Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete.
# Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access.

So some of the early copy-protection schemes can indeed be legally bypassed in order to preserve them. It’s a small victory, but any victory is good with the DMCA.