The 463: Inside Tech Policy

Stop Me, Oh, Stop Me, Stop Me if You Think That You've Heard This One Before.....

Nothing's changed...

I'm Morrissey sad. Muxtape looks like this today...

What's Muxtape? I wrote about the music service that mimics creating a mix tape back in April when it launched. At the time, I noted: "just as soon as I got excited about it, I thought that anything as fun/cool as this must be illegal."

Alas.

The folks at Muxtape are saying that they will be back and that no artists or labels have complained. But, for a music industry that is speaking out of one side of its mouth about how they "get it" now and have learned their lesson (over and over), it doesn't look great.*

Neither does the slow train wreck that is Pandora and the rest of the Web radio licensing mess that stopped making sense a long time ago. Yesterday, The Post wrote about how one of the most popular music discovery services (that happens to stream tracks) is on the road to ruin).

Mike Masnick writes about it with the type of cynicism that makes me question my tones of optimism when Muxtape first came out...

This is exactly what the RIAA wants, by the way. Even if services like Pandora introduce people to tons of music (personally, I've bought a ton of music I found on Pandora), much of that music is not from an RIAA-member label. The RIAA knew exactly what it was doing in pushing these higher rates: it was killing off alternative routes to promoting non-RIAA music. The RIAA labels have always thrived off a very limited distribution and promotion channel. After all, distribution and promotion are where record labels really make their money. Competing methods of distribution and promotion are threats to be killed off -- and the RIAA may have succeeded here (with Congress' and the courts' help, of course).

*If this is a publicity ploy by Muxtape after the initial shiny wore off on them, they are geniuses.

Update: Use your whack-a-mole analogy here: 8Tracks does the same thing as Muxtape as is living and breathing at the moment.

Viva 230

[Editor's note: For the first time in five (?) years, I am not in lovely Aspen for the Progress and Freedom Foundation tech policy fest. As much I will miss the dichotomy of blue blazers and hiking boots, the Sky hotel jacuzzi, hot dogs at 2 am, and mile-(plus)-high hangovers, I am happy that 463er Dave McGuire is in effect this year. He even wrote a little ditty for this space today.... And we can expect more....]

If I told you I spent my morning in a basement conference room, packed with policy wonks, listening to a quartet of lawyers bickering about a subsection of a decade-old law, you might pity me.

Thankfully, the basement is in beautiful Aspen Colorado, the lawyers are nationally recognized experts, and that boring legal subsection? It may just have paved the way for Web 2.0.

I'm here in Aspen for the Progress and Freedom Foundation's annual Aspen Summit, a fine excuse for a gaggle of bright people to descend on an off-season ski town to mull over the future of Internet policy.

The first panel this morning dealt with mounting attempts to force Internet companies, such as ISPs, social networks and Web site operators, to crack down on the content created by their customers.

As it stands, Internet companies are largely protected from liability for the content their customers create under Communications Decency Act (CDA) -- specifically Section 230. Although the Supreme Court rightfully struck down much of the CDA on First Amendment grounds, Section 230 survived, and arguably paved the way for the Internet we see today.

Without 230, it's difficult to imagine how applications like Facebook or YouTube would have ever been created. If the Facebook could be held legally responsible every time one of its millions of users said something potentially defamatory, or Google could be sued within an inch of its life every time a YouTube user violated copyright law, it'd be hard to justify maintaining either of those services...or developing them in the first place.

Unfortunately, some lawmakers, content owners, and others are increasingly pushing to "deputize" Internet companies, forcing them to play an active roll in policing the content they host. It's a troubling trend, and one that threatens to undermine the user-generated revolution that Web 2.0 has wrought.

Most of the lawyers on the panel seemed to agree (though being lawyers, the managed to argue about it for an hour) that Section 230 would survive efforts to undermine its core protections, but probably not without their, and our efforts in its defense.

Live by the Net; Die by the Net; Cast Revenge on the Net

What if Barack Obama is sprung into office partially through the power of Internet donations to his campaign and his ability to inspire a new generation of voters to vote via social networking tools? Yet, he comes into office bitter about the lies bandied about on the Web in chain mails about his religious background and patriotic beliefs -- so bitter that he decides to push for regulation of Web-based opinions and news?

This isn't an exact corollary to what is happening now in the good democratic country of South Korea, but it is not that far from it.

There, the relatively new government was greatly assisted by the country's Web savvy voters when it won it's election five months ago. But, those unintended consequences of the Internet came back to bite the government on its flank when it was the delivery mechanism for hysterical fears of rampant Mad Cow disease after the government began to accept American beef back into the country. This then manifested itself in massive street protests (see below) against the government that have its popularity to Bushian-levels.

Now comes the attempt to put the genie back in the bottle....

...the newly elected South Korean conservative government, led by Lee Myung-bak, has unveiled a package of reforms and laws aimed at curbing some of what it claims is the outrageously libellous commentary and ungrounded scaremongering found online.

Lee Han-ki, the OhmyNews editor-in-chief, told MediaGuardian.co.uk: "The proposed legislation will not only hinder free speech by Korean netizens but seems to be aimed at controlling the public opinion of internet news media.

"Such measures would not help to promote the democratic development of the Korean press and could end up turning back the internet clock in Korea."

Should Lee's new Seoul government get its way, new laws would allow any internet company publishing news stories to be regulated in the same way as journalistic organisations.

All forum and chatroom users will be required to make verifiable real-name registrations.

Internet companies will have to make public their search algorithm to improve "transparency". And, most controversial of all, regulatory body the Korea Communications Commission will be given powers to immediately suspend the publishing of articles found to be fraudulent or slanderous for a minimum of 30 days. (Guardian UK)

An Internet-Sized Unintended Consequence

I'm an Internet cheerleader. It's a massive democratizing force. It's an efficiency machine. It creates untold economic opportunity. Sis Boom Bah.

Boo Nicholas Carr. Hiss Andrew Keen.

But, sometimes, it's important to recognize when the organic nature of the Internet creates dynamics that we wish weren't so...

Lots has been said about how the power of the Internet will eventually break down old barriers in regimes where democracy isn't a way of life. And, much faith has been put in the hands of young people to use the Web to tear down walls. In fact, this is a rational for why American companies put up with censorship in places like China. The idea is that a taste of unfettered communication will eventually push a people to demand minimal restrictions on speech, and this will eventually have a bubbling-up effect of creating a more perfect open, capitalistic and representative society. I happen to agree with this. Still.

Yet, societal transformations aren't always pretty and don't happen in black and white.

For example, what happens if this great Internet makes a good portion of said young people more closed to a world and less willing to embrace Western ideologies? Or, simply, what if the great democratizing tool lessens the appetite for the kind of democracy that you prefer?

A fascinating recent New Yorker piece examined these questions as it went behind the scenes of the creation of this video below...

"On the morning of April 15th, a short video entitled “2008 China Stand Up!” appeared on Sina, a Chinese Web site. The video’s origin was a mystery: unlike the usual YouTube-style clips, it had no host, no narrator, and no signature except the initials “CTGZ.'”...

...The video, which was just over six minutes long and is now on YouTube, captured the mood of nationalism that surged through China after the Tibetan uprising, in March, sparked foreign criticism of China’s hosting of the 2008 Summer Olympics. Citizens were greeting the criticism with rare fury...."

...In its first week and a half, the video by CTGZ drew more than a million hits and tens of thousands of favorable comments. It rose to the site’s fourth-most-popular rating. (A television blooper clip of a yawning news anchor was No. 1.) On average, the film attracted nearly two clicks per second. It became a manifesto for a self-styled vanguard in defense of China’s honor, a patriotic swath of society that the Chinese call the fen qing, the angry youth."

The story traces the video to a well-educated and soft-spoken graduate student who has a better grasp of Western ideology and philosophy than most Americans, Germans or Brits. The fact is that he can easily circumvent state-driven censorship and this doesn't fuel him to question his country. It, instead, makes him defend it even more. (Of censorship, the student says "because we are in such a system [of media censorship], we are always asking ourselves whether we are brainwashed, but when you are in a so-called free system you never think about whether you are brainwashed.")

Many of those who are older than "the angry youth" in China either regret that they don't understand the purpose of protests like Tiannemen Square or are fearful of the intensity of their feelings (indeed, as one Chinese blogger who admired the NYer article wrote: It was the Communists who repressed patriotism). Yet, the 105 million under 30-year-old Internet users in China hold the power over the impact of the technology in their country in the coming decades -- for better or for worse.

UPDATE: Kevin Donovan thankfully wrote in below and alerted me to a post that he did on this very same New Yorker article. His comments from his interesting new-ish blog that I will soon put in the blog roll here ....

The instantaneous, global spread of ideas is unprecedented in human history. Sure, the Silk Road is a fascinating example of the globalization of products and diseases; even a few ideas made the journey. Sure, by some measures the world was just as globalized prior to WWI. But the scale and extent of the current global information society dwarfs historical comparisons. For the first time in history, ordinary citizens have the capabilities to connect across the globe to people of wildly different backgrounds, histories and interests. It was supposed to be a sovereign realm unto itself where “governments of the industrial world… have no sovereignty.” Nationalism was supposed to disappear, to dwell in history with the horrific wars and conflicts it supported.

The reality, is quite different. The Economist notes that, “the very people whom the Internet might have liberated from the shackles of state-sponsored ideologies—are using the wonders of electronics to stoke hatred between countries, races or religions.” How can these painful distortions of humanity be limited in the digital realm? The answer, of course, isn’t clear, but my intuition is that it will not depend on hardware or software. A future free from conflict - digital and physical - will be paved by breaking down the cultural differences and coming to understand the reasons for differences of opinion.

That referenced July Economist piece was titled "The Brave New World of E-Hatred -- Social networks and video-sharing sites don’t always bring people closer together".

Let's Go Crazy Over the DMCA

First, watch this video:

Now, ask yourself, did that just make you want to buy music from Prince less? Specifically, the track "Let's Go Crazy?"

That's just one of the peripheral questions afoot in a legal case between a mom who took a video of her kid and innocently posted it on YouTube and Universal Music. And, no, the big label isn't suing the mom. It's the other way around. Yesterday, a judge considered Universal's attempt to get the potentially precedent setting case dismissed.

The EFF is driving the case for Stephanie Lenz and claims that Universal shouldn't have forced YouTube to takedown the video on copyright claims because the use of the Prince track was protected by fair use. EFF says:

"The lawsuit asks for a declaratory judgment that Lenz's home video does not infringe any Universal copyright, as well as damages and injunctive relief restraining Universal from bringing further copyright claims in connection with the video."

Wired's Threat Level blog notes:

Universal did not challenge Stephanie Lenz's assertion that the video was a "fair use" of Prince's song. After being taken down for six weeks, the video went back online last year, having now generated about half a million hits.

The courthouse dispute on Friday centered on a rarely used clause in the DMCA -- originally approved by Congress in 1998 -- allowing victims of meritless takedown notices to seek damages in a bid to deter such notices and breaches of First Amendment speech.

Universal argues that they or other copyright holders are not liable for damages when somebody asserts fair use to reverse a takedown notice.

A European Perspective on the YouTube/Viacom Privacy Imbroglio

A US judge orders that Google provide full access to YouTube user data to Viacom, an Irish reporter reacts....

The EU is currently arguing that IP addresses should be considered personal information and fall under data protection regulation. However, the Viacom case is showing that, as privacy advocates have been arguing, this may mean zilch in real terms.

Once EU users access a service, their details can be stored on servers anywhere in the world and the provenance of those details, in legal terms, becomes murky. Yes, they may be data theoretically protected under EU law but in practicality - as with the Google data - once those details are on US or other servers and demanded under US law for a case that has nothing directly to do with Europeans, it is going to be handed over despite EU protestations - if any.

If the data is, rightly or wrongly, so easily surrendered for a mere commercial case (and some prominent US privacy lawyers argue the Viacom judge was wrong to do so), then one can imagine the ease with which law enforcement might get hold of similarly highly revealing information.

All of which begs the question: what does online privacy really mean? Are EU data safeguards just political window dressing and if so, how can our privacy be better protected, as so many aspects of our private lives move inexorably online?

Behavioral Tracking Hearing

Braden Cox at TLF succinctly breaks down todays hearing on behavioral tracking...

Coming off last week’s July 4 recess, the Senate held a hearing on the privacy implications of online advertising. Online ads, behavioral tracking, targeted ads - whatever you might call it - has been an explosive policy issue, but today’s hearing was mostly just sparklers, with only a few bottle rockets here and there.

The big players were there–Google, Microsoft, Facebook and NebuAd–minus the ISPs, which (Senator) Dorgan called out as being absent...

Full post is here.

Learnings from THE Cyberporn Story

I ran across this classic, infamous Time Magazine cover the other day and was blown away that it's now 13-years-old. The story is here.

Besides making me think about my own age and what I was doing when I first saw it back in 1995, I had a few thoughts on it (that aren't all necessarily related)...

--As you may know, the story was riddled with faulty research, alleged bad journalism and a lot of fear mongering presumptions. In a nutshell, one Carnegie Mellon researcher did a study that found that 83.5 percent (!) of online images were pornographic and published his findings in a non-peer-reviewed law journal. (The punch-line was that the source of the images were private BBS services and not the public Internet). The researcher and the law journal supposedly gave Time the journal article and select pieces of the results under the condition that Time couldn't see the full study before it went to press. This is obviously completely insane and the law journal says it wasn't true. But, regardless, Time ran with the piece nonetheless and wrote (their caps, not mine): "What the Carnegie Mellon researchers discovered was: THERE'S AN AWFUL LOT OF PORN ONLINE."

For a blow-by-blow excavation of the story, see this critique and this timeline by Brock Meeks (long-time journo, current CDT communications guy).

--At the time of the piece, the Communications Decency Act train was warming up in the station and the Time story gave it a head of steam. In an interesting piece of current research, Alice Marwick writes about "technopanics" and uses the Time piece and the resulting legislative actions as exhibit A...

The day after the Time issue was published, Iowa Senator Charles Grassley directly referred to the Rimm study on the floor of the U.S. Senate. Congress was in the process of debating the Communications Decency Act (CDA), an amendment to the Telecommunications Act which made it a federal crime to make pornographic materials available online where children could view them. Grassley had read the Time magazine cover story and gave a strident speech to Congress the day after it was published:

Eighty–three point five percent of all computerized photographs available on the Internet are pornographic. Mr. President, I want to repeat that: 83.5 percent of the 900,000 images reviewed — these are all on the Internet — are pornographic, according to the Carnegie Mellon study. Now, of course, that does not mean that all of these images are illegal under the Constitution. But with so many graphic images available on computer networks, I believe Congress must act and do so in a constitutional manner to help parents who are under assault in this day and age. There is a flood of vile pornography, and we must act to stem this growing tide, because, in the words of Judge Robert Bork, it incites perverted minds.

--The CDA, of course, passed, was signed and then got struck down by the Supreme Court. It also launched the careers of about 1143 geek activists.

--As the "technopanic" piece notes, there is a direct corollary from the Web 1.0 cyberporn freak-out and the social networking predator wig-out. Adam Theirer and others spit in the wind for a long time about how faulty research was on social networks and the risks of sexual predators. Still, despite a recent trend toward more reasonable data, a whole host of bad legislation has been introduced since 2006 to cure the Internet of its social networking evils. DOPA was the classic, but there have also been all sorts of attempts at the state level for age-verification mandates (which have been uniformly scuttled).

--But, think that in these modern ubiquitous media days that a single story can't have an impact on a policymaker? Think again. It certainly wasn't as specious as the Time piece, but consider one New York Times story written by the generally very good Brad Stone last summer. Headlined "New Scrutiny for Facebook Over Predators". In it, the Connecticut AG says that he is investigating "three or more" cases of convicted sex offenders on Facebook. Lightweight claim? Fair point? You make the call.

Regardless, this news is supported by an anonymous email to the Times that was received by a received from a “concerned parent” who had “posed” as a 15-year-old on Facebook and received solicitations from adults. Apparently, this fake 15-year-old signed up for groups that included ““addicted to masturbation ... and you know if you are!”, “Facebook Swingers” and “I’m Curious About Incest.” The fake user subsequently received propositions from adults who could see her profile photo and message her via the group. A couple of the men had naked photos of themselves on their profile. (Note that Facebook has since fixed this issue on several levels).

In response to the Times story, one blogger remarked: "What?! Adults posing as teenagers looking for "random play" and joining 36 sex groups get propositioned? The system is totally broken!"

Regardless, I don't think it was a complete coincidence that less than two months after the piece, the New York Attorney General announced the results of a “weeks long” investigation into the site that mirrored what were covered in the story and started a public crusade against Facebook. This was very quickly concluded by an agreement between the AG and the company. Still, damage done.

--Is the social networking technopanic too 2006-07 for you? Okay, how about this USA Today piece that came out last week that ledes with: "Sexual predators are using gaming consoles such as the Wii, PlayStation and Xbox to meet children online."

Look for related legislation soon.

--Another interesting bit from the initial reaction to the cyberporn story, was the recalling of how this could have been the first major instance of "crowdsourcing" to find the facts necessary to create a significant reaction (in this case from a major weekly newsmagazine). The seminal early-Internet geek-zone, the Well, is given credit in a 1995 story:

In the hours and days after the Time story was published, something extraordinary happened in the Media conference on the Well, the Sausalito-based computer conferencing system: Scholars, reporters and activists examined the Time story and the Carnegie Mellon University study it was based upon and took them apart, line by line, statistic by statistic, in full public view.

The Well is a popular hangout for journalists and journalism junkies; the author of the Time story, Philip Elmer-DeWitt, is among its regulars. Over the past 10 days, anyone who pulled up a virtual chair on the Well could follow all the principals in this controversy as they thrashed out their disagreements.

Initially, a Time editor (awesomely) only promised a "letter to the editor" to the dissenters. But, as the reaction dragged on, Time eventually ran what was supposedly a "qualified" retraction. (I can't find it).

--Of course, the Well could also be seen as a pre-cursor to the current circle jerk of tech bloggers who constantly affirm each other in their own special enlightened world. [UPDATE: Check out Brock Meeks' erudite refutation of this point in the comments.]

--Indeed, the author of the Time piece notes in an interview right after it ran...

"Frankly, I think there's a good story to be done, probably by me, in what's gone on in The Well. This might be self-serving, but it feels like poor Marty Rimm is being lynched there. He's not getting a fair trial; his study's not getting a fair trial. Mike Godwin has organized an attack, and there are precious few voices that are not already prejudiced to one side."

I't's hard to have a lot of sympathy for either the reporter or researcher in this case, but after seeing When Communities Attack many, many times in the last 13 years now, it's also hard not to hold out a bit of skepticism for prevailing wisdom promulgated by those who effusively agree with each other and collectively reject dissenting perspectives.

In a way, this whole episode was quite prescient -- both for better and for worse.

Regulate YouTube to Save the Australian Idol

Follow along please....

A prominent Australian recognizes that "consumers are demanding more extensive online, video-based entertainment" and that "we are the 'what, when and how we want it' generation."

He then says that require circa-1960s rules that require that 55 per cent of all programs broadcast on free-to-air TV between 6pm and midnight to be Australian are outdated.

The punch-line has to be that he views the TV content content rules as so archaic in a networked world that they should be struck down?

Wrong.

Instead, he is calling for these types of "Made in Australia" rules to be extended to the Internet.

Oh, and I suppose it is relevant that the man making this pronouncement is the head of the Australian public television network -- ABC-TV.

Seems that Kim Dalton believes:

"It is likely that existing regulatory arrangements to deliver local drama, documentaries, comedy, children's, news, current affairs and other programming may have diminishing effects on the market as the existing business models of broadcasters are challenged and the content offered becomes, increasingly, foreign.

"It is time to reassess and reshape the Australian content policy framework.

"By making new connections between the previously distinct fields of communications, media and cultural policy, the Government can address the issue ofensuring Australian content ismade available in the digital environment."

What happened to consumers getting what they want, when they want?

After all, Australian TV viewers consistently watch Desperate Housewives, Lost, CSI and Law & Order more than most any homegrown products. And, the most popular locally produced shows are generally bastardizations of American or European created shows like Australian Idol, the Australian Big Brother and Who Wants to Be a Millionaire.

Nothing wrong with that. But, pretending that you are going to save Australian culture by getting government involved to force people to watch your network's programming on all mediums is a bit, uh, problematic.

Fortunately, the reaction in Australia was not positive.

Today, The Australian ran reactions. Here is one...

John Lindsay, the carrier relations manager for Internode -- one of the country's largest internet service providers -- said the call was hypocritical.

"This used to be the same Australian media industry that refused to make Australian TV available online," Mr Lindsay said. "You can't regulate it. It connects everyone to everyone. Are they really going to stop people watching YouTube and CNN?"

He said attempts to try to restrain or direct people's use of the internet would be met with fierce resistance by consumers.

Americans for Internet Regulation

We give lots of other countries gruff for taking steps to regulate the Internet like old-school media. And, we often heckle US politicians for taking the slightest steps down a slippery slope of toward Internet content regulation.

Our snarky (and substantive) comments stand. Sadly, though, politicians tend to care more about rafts of voters than part-time bloggers.

And, according to a poll that came out over the weekend, good ole' Americans (at least 1500 of them) think by a decent margin that the Internet should be regulated like other media.

Specifically, Rasmussen Reports asked, "Should the Federal Communications Commission regulate the internet like it does radio and television?"

And, the results were:

49% Yes
35% No
16% Not sure

Rasmussen qualified that... "women... feel much more strongly about federal regulation of the Internet, with 55% in favor, 25% opposed and 20% undecided. Men reject federal regulation by a small margin – 46% to 42% -- with 12% unsure."

Unfortunately, these results weren't too dissimilar than the results of of a 463/Zogby question that we asked last Fall We found that:

- More than half of Americans believe that Internet content such as video should be controlled in some way by the government. Twenty-nine percent said it should be regulated just like television content while 24% said government should institute an online rating system similar to the one used by the movie industry. In contrast, only 36% said the blocking of Internet video would be unconstitutional.

- Only 33% of 18 to 24 year-olds supported government stepping in on content, while 72% of those over 70 years of age support government regulation and ratings.

(photo by photogail)