'Reality Ain't What It Used To Be'
There's a review [link will go out of business too soon] today in the Times of “House/Lights,” a play (if that's an adequate word for it) being put on now at St. Ann's Warehouse by the Wooster Group. It's a play on Gertrude Stein's play on the Faust legend, fused with with Joseph Mawra's B-film classic “Olga's House of Shame.”
But it's really a review of life in the 21st century:
The world according to the Wooster Group is the world that most of us live in now - any of us, that is, who spend time with some kind of computer, cellphone, television and/or recording device. Heck, just take a stroll through that open-air sound-and-light show called Times Square, land of giant television screens and walking telephone conversations, and you'll be in the terrain mapped by the Wooster Group.
The company has become the American theater's most inspired and articulate interpreter of an age in which machines mediate between the perceiver and the perceived, between subject and object. In its productions of the last 15 years in particular, it has increasingly specialized in ravishing, meticulous marriages of live and recorded performance that make it shatteringly clear reality ain't what it used to be.
What is real? What's a reproduction? Does it matter? In The Recognitions, by William Gaddis, there's an enormous scene with a very skilled forger of paintings. The forger says that all of the reproductions of his works in magazines are calumnies. Someone else says, coldly, “Every piece you do is calumny on the artist you forge.” And then the forger says this:
It's not. It's not, damn it, I . . . when I'm working, I . . . do you think I do these the way all other forging has been done? Pulling the fragments of ten paintings together and making one, or taking a . . . a Durer and reversing the composition so that the man looks to the right instead of left, putting a beard on him from another portrait, and a hat, a different hat from another, so that they look at it and recognize Durer there? No, it's . . . the recognitions go much deeper, much further back. [The experts can test all they want, but] they don't just look for a hat or a beard, or a style they can recognize, they look with memories that . . . go beyond themselves, that go back to . . . where mine goes.
All the pastiche and collage and reproduction we see online is just as real as any “original.” It's real enough.
You Could Put Someone's Eye Out With That Thing
The big copyright tussle, the ancient battle between content and technology, is going into a new phase. Now it's all about product liability.
Here's how the argument goes:
1. Failing to design something so as to constrain copyright infringement is just like failing to design something so as to avoid injury. When the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, failure to use that alternative design renders the product not reasonably safe.
2. Failing to keep people from infringing copyrighted materials using technologies is just like failing to warn consumers of the dangers of that technology. When the foreseeable risks of harm posed by the product could have been reduced or avoided by reasonable instructions or warnings, their omission renders the product not reasonably safe.
3. So copyright protection is really a matter of consumer protection. That's why 40 state AGs filed a brief supporting the grant of cert in the Grokster case. They're worried about the injuries (child pornography, spyware) being caused to their constituents through the continued existence of peer to peer software.
4. Bad design and failure to warn give rise to liability for product manufacturers — the same should be true for manufacturers of copying devices and technologies.
This is a brilliant move. It captures so much of our current sensibilities: McDonald's should be liable if we eat too much; tobacco companies should be liable if we smoke too much; Xerox should be liable if we copy too much. This move has the potential to target everyone in the chain of distribution — anyone who made a dime out of anything that was eventually used to infringe, whatever their intent was.
But it's absolutely crazy. Manufacturers of flammable clothing can be liable because people are hurt when that clothing burns. The point is that we're trying to protect people from being hurt by the products they use. But you can't be injured by a consumer electronics device. The copyright tort injury is felt (if it's felt at all) by someone thousands of miles away in Hollywood.
Even though it's absolutely crazy, it's clearly worth a try. The tough issues in a “failure to warn” case will cost defendants zillions of dollars to fight against — what's a “foreseeable risk” of copying? what are “reasonable instructions or warnings” that might have lessened the infringement?
Time to re-read The Hunting of the Snark.
But the Judge said he never had summed up before;
So the Snark undertook it instead,
And summed it so well that it came to far more
Than the Witnesses ever had said!
When the verdict was called for, the Jury declined,
As the word was so puzzling to spell;
But they ventured to hope that the Snark wouldn't mind
Undertaking that duty as well.
So the Snark found the verdict, although, as it owned,
It was spent with the toils of the day:
When it said the word “GUILTY!” the Jury all groaned,
And some of them fainted away.
The new normal in surveillance: Understanding FISA
Today's activity was a panel dedicated to discussing Peter Swire's proposals to revise the PATRIOT Act. It was a terrific panel — Peter really knows what he's talking about, and so does Patricia Bellia, and so does Richard Phillips, counsel to Sen. Leahy and the Senate Judiciary Committee. All I had to do was direct traffic.
Peter Swire's paper on the Foreign Intelligence Surveillance Act of 1978 (and the changes to it made by PATRIOT) is well worth reading. It's very clear. FISA was a grand compromise that has been substantially undermined by PATRIOT — much broader permitted searches, authorized at lower levels, with less of a nexus to foreign intelligence gathering required, are all now possible under PATRIOT.
Richard Phillips seemed pessimistic that any of this could be narrowed in the current environment. We might, he suggested, be able to do something about the powers of the Foreign Intelligence Surveillance Court to review and authorize records requests (and release gag orders about them eventually). But it's an uphill battle.
A key part of the policy discussion about all of this has to be resisting the claimed newness of this post-cold war age. The same arguments are made over and over again — evil is rampant, we have to give up our civil liberties to respond. In fact, the world hasn't changed so very much, and it doesn't require new laws, new bureaucracies, or new asymmetries of information to deal with the current situation. But try telling legislators that. You won't win.
Broadcast Flag: Good news and bad news
First the good news: It seems clear from published reports of this morning's argument that at least two members of the DC Circuit don't think the FCC has jurisdiction to issue the flag rules.
“You're out there in the whole world, regulating. Are washing machines next?” asked Judge Harry Edwards. Quipped Judge David Sentelle: “You can't regulate washing machines. You can't rule the world.”
That's great. And it has enormous implications for the future of internet regulation. The FCC is using the same “ancillary jurisdiction” argument to support its efforts in “social policy” regulation of IP-enabled services. Now the FCC will have to rethink — and will have to go up on the Hill to seek statutory authority. This will be a battle.
Now, the bad news. It sounds as if Judge Sentelle didn't think much of plaintiffs' standing (ability to claim injury and seek the help of the courts) to challenge the broadcast flag rules. It seems to me that the libraries certainly have special injury here — they won't be able to make fair use of materials in ways that otherwise are guaranteed them. Because the library association is a plaintiff in the flag case, there's a good chance that they can answer the standing questions that were raised today. And I'm also hopeful that the DC Circuit judges involved wouldn't have said so much about the merits of the jurisdiction arguments if there wasn't standing to begin with.
On balance, it's a great day for the internet. If only some consumer electronics manufacturers would see their longterm interests more clearly — it has to be more important to be able to innovate in ways consumers will like than to build to a required standard that no consumer wants. There is no market demand for the broadcast flag.
Whither WGIG?
Now, I don't like the word “whither” any more than you do. But this Reuters article was circulating today and it seemed to call for a “whither.”
It's a short story, so let's do a close reading.
A U.N.-sponsored panel aims to settle a long-running tug of war for control of the Internet by July and propose solutions to problems such as cyber crime and email spam, panel leaders said on Monday.
We're going to decide what “internet governance” is by July? And we're going to propose solutions to cybercrime and email spam? Wow. Here is the preliminary report [pdf] that Nitin Desai, Chairman of the Working Group on Internet Governance, has transmitted to the WSIS Preparatory Committee and the ITU. This report isn't as brave as the Reuters story; in fact, it seems to be quite limited — although WGIG is still planning to submit “proposals for action.. on the governance of the Internet.”
Right now, the most recognizable Internet governance body is a California-based non-profit company, the International Corporation for Assigned Names and Numbers (ICANN).
But developing countries want an international body, such as the U.N.'s International Telecommunication Union (ITU), to have control over governance — from distributing Web site domains to fighting spam.
“There is an issue that is out there and that needs to be resolved,” said Nitin Desai, chairman of working group and special adviser to U.N. Secretary-General Kofi Annan
It's clear that Desai has ICANN in his sights. But ICANN has absolutely nothing to do with “fighting spam,” and even having that subject reflected in the Reuters story reflects some deep confusion on someone's part.
ICANN doesn't do internet governance. ICANN makes recommendations about what gets added to the root (new TLDs) and has some role in allocating IP addresses, but ICANN absolutely does not approve new internet protocols. ICANN has nothing to do with how packets get routed or any other key internet agreements. ICANN gets the respect and deference of ISPs and network operators – a very thin (and unwritten) form of respect. There's no governance there — and, so, there's nothing for the UN to take over.
So, fine, solve cybercrime and spam by July. It will be interesting to see how this happens — and what on earth ICANN has to do with this effort.
Spyware and trackbacks
I did the first in a string of talks about spyware today. My fancy-schmanzty software (MindManager — I thought it would be great) crashed over and over again before I started, so I gave up and just talked. I did not blame or even mention the software problem (this is similar to not blaming the horse who throws you to the ground).
Boy, do we have a long way to go on this issue. Some people say it's all about privacy. Other people (including Utah) say it's really about unauthorized uses of trademarks prompting unauthorized ads (or sponsored links). I'm saying it's all about oppressive relationships, and we have lots of law to deal with these relationships already. But because of relatives and cluelessness (bet you there are lots of legislators with relatives who have spyware problems), legislators are swinging for the fences on this one.
Just as the broadcast flag is really about control over the design of devices, the spyware debate is really about control over the design of code. We should be cautious in legislating these design decisions — no matter how pernicious particular stories/examples are — because our language for these distinctions is so impoverished. We don't know and can't describe in advance what “bad software” will look like two months from now. HTML? JavaScript? Cookies? What's “bad” and needs notice and consent?
Someone asked me how to make a trackback show up on a blog. Here's how:
1. Find a good blog.
2. Find an entry and copy the URL for the “permanent link” to that entry.
3. Create a link to that entry in your own blog.
Contextual search
Yahoo! has rolled out a new service, Y!Q, that allows for contextual searching — on web pages, through a blog, whatever. Yahoo! blogs about it here.
It's a pretty neat tool. Is it spyware?
It's Just As Important as Grokster
The broadcast flag argument is coming up on February 22. It's a crucial case. Did the FCC have jurisdiction to enter the broadcast flag order in November 2003? If it didn't, we'll need to go to Congress to discuss all this.
Like the Grokster case, the flag situation raises this question: can one industry force another to constrain new general purpose technologies in the name of copyright protection? Like the CALEA dispute (prompted by the demands of another great industry — law enforcement), the flag represents an attempt to have high-tech innovators ask permission before innovating.
The broadcast flag isn't really about broadcast or the waving of a patriotic flag. It's about money and fear. I have high hopes that the DC Circuit will see through the FCC's incredibly broad assertions about its jurisdiction.
We're in for a long, tough battle in front of Congress — everything may be up for grabs, including the immunity of online intermediaries enshrined in Section 230 of the 1996 telecom act. Congress should act with self restraint. But the first step is to get them involved, and the flag case will (should) be a step in the right direction.
Here's my paper about all this. It explores the application of complex systems theory to internet governance.
Gates and Blossoms
Today was a great day, a sunny and mild day, to see The Gates installation in Central Park. The letters in the Times today about the exhibit were a pleasure in themselves — everything from “I was deeply moved” to “It is in my opinion bad art, an example of extreme hubris and not pleasing to look at.”
So I had to go.
I guess I'm closer to the “deeply moved” camp. Going reminded me of the great happiness I used to feel when I managed to visit the cherry blossoms in full bloom in DC. Those gnarled trees cover themselves with delicate glory for such a brief time, and when it's sunny and you have time to walk under them you feel lucky. People show up and have lunch under the trees, or lie on their backs and watch the blossoms against the sky. Just trees!
Same thing in Central Park today. There was a festival air around those orange hangings shot through with shiny threads (really, they're orange, not saffron). Stately waves, undulating settings, and all here for such a short time. Like cherry blossom time, this is a time for wedding photographs near a gate or two.
Amateurism
Ben Franklin was the ultimate amateur scientist:
“It wasn't just his extraordinary work that he did in electricity. He was also the first person, for instance, to understand that weather just didn't happen locally, that a storm that you experience today might be a hundred miles over tomorrow, and he was the first person, using his position as postmaster general, to track a hurricane going up through the colonies. He was the first person to study the sociology of insects. He was the first person to analyze the teeth of a mastodon and figure out that the climate in Siberia, where the mastodon had been found, must have changed, so that meant that climate was not something that could be relied on as being constant all over the world.”
Amateur musicians flock to concerts; amateur radio enthusiasts keep plugging along; amateur astronomers add to our knowledge of the universe. The interactive, networked screen makes it easier for all of these amateurs to find one another — joined by the internet as well as by their common interests. The net can be used to create intellectual common areas of all kinds, built by gift. Code is love as well as law.
Yet another reason why Ben Franklin would have loved the internet. Happy Valentines Day.