Archive for March, 2004

I'm delighted to say that I've been added to the roster of Fellows of The Information Society Project at Yale Law School. This means more trips to New Haven (“The Hub”), and, with luck, some engaging meetings in New York. Thanks.

I'm here in Room 127 of the Yale Law School for a cybercrime conference.  So far, we had an excellent keynote from Dan Geer, and Tony Rutkowski (VP of Regulatory Affairs at VeriSign) is getting up to talk now.

But I'm distracted by a conversation I had with someone before the meeting began.  He said that this whole game of ICANN and VOIP and lots of other worries is essentially over — FCC plans to assert jurisdiction over the DNS as an IP-enabled service (and assert jurisdiction over email and any other application that uses IP).  He pointed to an FCC NPRM (MC 04-36) in support of this assertion.  He also said that the EC has issued a similar notice.  These notices point to a limited set of obligations for providers.  Game over, in this individual's view.

Back to Tony.  He's pointing to the fact that there are very few content intercepts in the real world.  Most requests are made for subscriber information.  Law enforcement access is essential, and all we're talking about is what costs will be paid by whom.  Anonymity is over.  Key developments are happening in the private sector.  In the public sector, we're talking about the cybercrime treaty (probably will come into effect this year), the UK data retention code, and the FCC CALEA proceeding.  Europe cares only about data retention; they're way past CALEA.

He says re CALEA proceeding: 

Coverage:  Nothing really new here (real time access to data is a fact of life under state and federal law); we're just shifting costs to providers.  And need capabilities in place in order to do this stuff.  Law enforcement has a critical need for access in today's nomadic architecture environment.  He says this is innovative.

Compliance:  Creative, more flexible, adopts 15 month benchmark approach to enforcement.

Costs:  Pass on implementation costs to subscribers; transparency is good; service bureaus make the costs minor; parity with other regulatory mandates (E911, Universal Service); costs are trivial compared to stored data production via subpoenas. (that's an interesting point, if true, and Tony seems to know what he's talking about.)

More when the next panel comes up.

Paul Marino is going to help me pull together some surprising Machinima materials to show the Copyright Office.  This will help me pose questions to the group — like who owns what and why, and what if another avatar wanders by?  Thanks to Ernest Miller for the suggestion.

I just watched another Red vs. Blue movie, and I'll need Paul's help making a zippy demo out of this.  All ideas welcome.

Next Thursday, I'm giving a lunchtime talk to the Copyright Office (part of a program called The Copyright Office Comes To New York).  Send me your suggestions.  This is my chance to say something sensible.

I thought I'd talk about the feeling of being in Canada in June 2003, during an otherwise uneventful ICANN meeting, when Lawrence v. Texas came down.  The Canadians were feeling awfully smug and superior.  They didn't have to tussle with any ridiculous anti-sodomy laws.  They had even worked peacefully through the issue of same-sex marriage.  They were waaay ahead of us, and surprised at our lame approach to these issues.

I'd mention with sadness the prospect of more election-year debate over same-sex marriage.  (Fighting over who gets to marry whom seems completely pointless to me, and I'm embarrassed that those who govern us are even worried about it.) 

Then I'd talk about the recent Canadian copyright decision to which Michael Geist has pointed us.  Once again, our friendly neighbors to the north seem to be waaay ahead of us.  According to Michael, the Court concluded that the Canadian analogue to the fair use affirmative defense “should be granted a large and liberal interpretation.”  Indeed, Michael points out that the court shaped this “exception” to copyright infringement (in our parlance, this defense) as new copyright rights for users.  Users' rights.  Those Canadians have the idea that these rights need to be balanced against the rights of copyright holders. They also think that it's appropriate for manufacturers to presume that their machines will be used for lawful purposes — and they seem to think that copying for personal purposes is different and special.  Hmmm.

Then I'd talk about some of the more outrageous elements of the broadcast flag proceeding (continued studio role as gatekeepers) and what's coming up next via the analog hole funnel (lingering on nomenclature here).

So:  don't blame Canada, blame us if we can't get this right; don't press for more laws or tech mandates at the moment; keep the FCC out of copyright policy; let Congress decide the difficult questions of secondary copyright liability.  Congress has been decidedly not technology neutral when it comes to the internet (section 230 comes to mind).  We should want to avoid another Lawrence v. Texas moment 15 years from now – when we come to our senses after a great deal of wasted time.

Look forward to your comments.

The New England Spring Flower Show is on right now in an enormous hall near the JFK Library.  It doesn't have much to do with copyright, but it has a lot to do with spring.  They've created warmth and color (deep oranges, bright blues) by forcing flowers to bloom and then bringing crowds by to admire them.  I'm not a gardener, but I'm related to generations of gardeners, and I have respect for the enterprise.

The kind of gardening that takes place at the Spring Flower Show is carefully planned and executed.  It's a celebration of control; the plants are spaced beautifully and placed against each other so as to show up well; silvers and blues, rough and smooth.  It isn't spring — not yet — and many of the blooms don't belong together because (the gardeners tell me) they'd never be present at the same time in the real world.  But they're all there in the convention hall, blooming bravely under bright white lights.    

The moss is dying right and left, and many of the flowers are starting to look tired — I guess it's a strain, being forced to bloom. 

If you think about it, it's what will happen in the minds of the gardeners that's really interesting; they'll bring ideas home and try them in their own back yards.  Notes were being taken; advice was being sought.  There is beauty made possible by the control in the convention hall, and a great deal of work has gone into making those exhibits possible.  But the show gardens, although ordered, can't be owned.  No one seemed too worried when pictures were taken of their model gardens by amateurs.

It's good to get away from ownership once in a while.  We so easily go too far.

So (as they say in cybercircles) I've been working on some new ideas.  The Cigarettes and Copyrights article is gaining flesh (“don't let the broadcast flag go through, because the FCC has exceeded its jurisdiction and is making copyright policy”).  Now I'm working on a new project.

The main idea here is that we take lazy shortcuts in reifying information.  We use property concepts (“trespass to chattels”) in talking about automatic searching of information that will do nothing other than lower costs.  We confuse objects with information when we talk about whether people have rights to access content stored in a particular format (“you can watch that DVD and take notes; you don't have a right to manipulate that content when it's in DVD form”).  Software is a hard case, and sometimes it's not clear whether it is speech (bits) or action (atoms). 

But these lazy shortcuts are ultimately quite destructive.  After all, law is about people.  Law is supposed to serve people.  So we should serve core human values in developing legal frameworks.  People progress through acquiring (participating in, creating) metainformational depth.  That's what maturing and learning is; that's what a cultural conversation is. 

What's interesting and different about information (as opposed to clods of dirt) is that it interacts and amplifies in ways that dirt doesn't.  It's not just that information isn't scarce — although that's a difference too.  That difference isn't as fundamental, though.  It's that information isn't conserved and interacts with other information in ways that create (taa-dah) metainformational depth.  Dirt can't do this.

So, any time we unnecessarily reify information, or drag in bodies of assumptions that are based on objects, we're cutting ourselves off from basic human interests in metainformational interesting-ness.  We don't even know what we're missing.  But it's very likely that more complex and interesting clumping is being truncated.  Without that clumping, we can't learn. 

We need to have different (more sensitive, more freeing) regimes for information than we do for real property, and we need to be careful about lazy theoretical shortcuts that don't do us any favors.  Pieces of dirt can't talk, so they're fine under real property law.  But as humans we need to be careful not to cut off our own conversations.

Just a quick link to an International Herald Tribune article about the ICANN meetings last week.

And a link to the PFIR request for an “internet meltdown” conference ASAP.

These two articles connect, of course.  ICANN is under attack, but that doesn't mean the internet is melting down.  ICANN has nothing to do with spam, spyware, security, or content.  All of those issues can and should be addressed by better tools that users can understand.

We're getting close to the end of the public forum section of the ICANN Rome meetings.  Two big pieces of news here tie together.

First, the ccNSO has been formed.  It's true that it could use more members from around the world, and it's true that the ccTLD constituency still meets separately from the ccNSO.  (This is inside baseball – stay with me.)  But what's important here is that ICANN has been encouraged to recognize that the country code domains are capable of making their own policies and do not need to be put under centralized control.  Most decisions affecting the country codes should be (and will be) left to local initiatives.  The ICANN Board clearly does not need to be involved. 

The next step will be to allow the ccTLDs to have more say over the IANA function (the part of this operation that changes nameserver information for TLDs) — it's my understanding that IANA won't say what staff does what, how long requests take on average to be implemented, or how much it costs to perform its job.  But that's for later.

The second key piece of data here is that Bruce Tonkin gave a terrific presentation about the need for standardized processes (written dockets, timelines) when considering registry/registrar requests for contractual amendments.  Now, one response to such a request could be the ICANN Board just saying “Yes.”  But the Board is under worldwide scrutiny, and Bruce's point is that ad hockery has not served the Board (or ICANN) well. 

The relationship between these two topics is:  ICANN is trying to clarify its place in the world (eg, not making local rules for registries) and professionalize its relationship with the contracts it has signed.  These are both good steps, and they'll help ICANN survive. 

I am at the ICANN meeting in Rome.  The big story here is that ICANN is under attack for not sticking to its narrow mission — technical coordination of the DNS and IP numbering system.  People here are referring obliquely to the VeriSign lawsuit as “recent events” (as in “in light of recent events”).  This euphemism reminds me of words used to reference the US Civil War (“the late unpleasantness”).

The lawsuit will force a fundamental reexamination of ICANN's role in the world.  It will, I hope, provide some needed clarity for the businesses that are involved in the domain name system.  ICANN will survive this unpleasantness — in fact, it is likely that ICANN will come out the better for it.

By acting as if it is indeed a regulator of the internet, ICANN has made itself into a rather large target.  So attacks are coming from several quarters — it's not just VeriSign, it's the UN and WSIS who are gunning for ICANN.  In fact, there are direct links between the VeriSign suit and the WSIS/UN initiative.

Here's the connection:  by forcing registries to sign elaborately detailed contracts as a condition of entering the root, by acting as if its role in approving new registry services includes the right to tweak the implementation of those services, and by generally claiming to represent the global internet community, ICANN has made itself look like a useful lever for control.  There aren't very many levers when it comes to the internet — there are very few chokepoints online.  So when governments are frustrated by spam and security problems, they look at ICANN and say it must be doing a bad job.  Governments also notice the control that the US Department of Commerce continues to have over ICANN and are troubled.

If ICANN stuck to its knitting and focused on its coordination role, it would present a smaller target to the litigating, globetrotting community.  ICANN should be boring.  ICANN isn't purely technical (just notice who goes to these meetings, and read the UDRP), but it should act like a standards body — opening new TLDs, accrediting registries, and providing a forum for discussion of multilingual issues.  If it did this, no civil servant would want to be involved, and governments could more readily defer to its actions.

There are spam, security, spyware, and content problems online.  Connectivity is also a problem.  But these are not problems ICANN is equipped to solve.  I am optimistic for ICANN's future, as long as it sticks to its job.

Here is a link to the report issued today by the Council on Economic Development.  Times coverage is here.

Mainstream businesses are becoming concerned about rushing too quickly to protect intellectual property rights through legislation or rulemaking — such as the technology mandates recently suggested by the FCC in connection with its broadcast flag rulemaking.  The report presents a centrist, “go slow” set of recommendations.