The Substantially Similar Weblog

Stay tuned—Larry Lessig will be on The Connection today, discussing the Grokster case. It’s a truism that you shouldn’t rely too much on the justices’ comments at oral argument, but some initial accounts suggest several were leaning in Grokster’s favor. At the very least they seemed to grasp the core issues and some of what’s at stake.

My near daily spam from the Christian Coalition finally addressed some issue other than Terri Schiavo (about whom I have thus far scrupulously avoided blogging!). Today’s headline was “Christian Coalition on Side of Hollywood in Today’s Supreme Court case (M.G.M. vs. Grokster)”. Apparently their big concern is pornography on peer-to-peer networks. I leave it to more clever pundits to elucidate the irony of the Christian Coalition supporting Hollywood in an effort to keep sex away from our nation’s vulnerable Christian youths and adults.

A few interesting bits to follow up on Sunday’s entry about Agence France Process vs. Google.

It turns out this suit was filed in the United States, not France as I had suspected. Eric Goldman has posted the complaint, which was filed in Federal District Court in the District of Columbia.

AFP alleges (in Paragraph 23) that Google sells advertising as part of its service, presumably setting up an argument against fair use. Google has scrupulously avoided placing advertising on Google News, however, presumably also for the same reason. I wonder if Google’s attempt to “fence off” it’s “noncommercial” content will be effective in asserting a fair use defense—I’m not aware of any law directly on point.

Another interesting allegation (Paragraph 76) is that Google removes the AFP watermark from AFP images, which, if true, leads to liability under the DMCA. It seems unlikely to me that Google would actually digitally process images to remove watermarks, though. Perhaps the news sites who publish AFP images, and from whom Google extracts content, remove the watermarks. AFP’s claim that Google removes “AFP” from the text of the byline seems more plausible, but perhaps less actionable as copyright management information.

The article I linked earlier on this subject mentioned:

AFP say Google have ignored all attempts to stop the indexing while Google say all publishers have the option of not being indexed and included in Google News.

My guess here is that the Google News crawler does respect robot instructions, and the crawler is not actually getting any content from AFP directly—instead, it is indexing other publications that include AFP syndicated content. Arguably, then, if Google is a direct infringer, then the publications from which Google is grabbing content are contributory infringers for not excluding their content from Google’s system.

This leads to an important question, which is: what is the default assumption when you post something on the web? Under copyright law, it’s fairly clear that the default is “all rights reserved,” and you need to ask permission to copy, modify, redistribute, etc.. Under the modus operandi of the web, however, it seems the default assumption is that reproduction such as caching and indexing in search engines is okay. So do news publications that carry AFP content have a duty to exclude the Google News crawler from their sites in order to avoid liability for contributory infringement, or does Google have a duty to ask permission from each and every publication, and then possibly from the “upstream” publisher (in this case AFP), before it can quote any material, setting aside any fair use defense for the time being?

It seems to me that the most efficient result here would be to assume certain uses (caching, indexing, summarizing) can be made of content on the web unless the publishers indicates otherwise, through a robots exclusion file or some other standard method. This would be consistent with certain areas of the law that require a fence to be set up around property before it will be protected—for example, information cannot be protected as a trade secret unless the owner of the information actually takes step to preserve the secrecy. This approach would be, however, inconsistent with the weight of authority in copyright law, which is that the author need not take any steps to protect the work to receive the protection of the law.

Update: Professor Eric Goldman’s analysis of the case, also discussed on the Trademark Blog and John Battelle’s Searchblog.

Via Universal Hub (and inaugurating a new blog category, “Boston”): the City Record and Boston News-Letter (motto: “Observe and Preserve”) has been posting items from the Boston police blotter, e.g.:

A well dressed man called at No. 721 Washington Street, walked up stairs, pocketed a silver watch, and while walking off encountered the lady of the house, of whom he very politely enquired if Mr. Atkins lived there; on receiving a negative answer, he took up his line of march and has not been heard of since!

Note that these items are from the early 1800’s.

This is also an appropriate time to note what seems to me to be an uptick in geocentric blogging (or perhaps someone can suggest a better adjective). The Internet facilitates global communication, but can also build local community. The Universal Hub is a selective (edited) aggregator of Boston-area blogs—I expect this kind of thing will be common in cities around the world if it isn’t already.

I noticed, ironically enough, on Google News, that Google News has been sued for $17.5 Million by Agence France Presse:

French news agency Agence France Presse is suing Google Inc over what it calls “unauthorized” reproduction of wire stories and copyrighted pictures on the Google News service. AFP are seeking $17.5 million recompense from the world’s number one search engine.

I’ve come to rely on Google News as my main “quick overview” of what’s going on in the world. The new customized news is another great example (along with gmail and Google Maps) of Google’s genuine innovation in creating usable interactive applications where competitors have thus far been trapped in perceived limitations of HTTP that basically involve submitting a form for each separate step of a transaction.

Google has been taking quite a battering in France of late. It lost an appeal relating to its AdWords sale of the trademark “bourse des vols” (“flight exchange”), as well as a similar lawsuit brought by luxury goods company Louis Vuitton.

I expect by the time this is over Google may be involved in every important case that will determine the boundaries of copyright and trademark law on the Internet. Unlike many of the defendants in the file sharing cases, for example, Google (1) has an incentive, and a pocketbook, to litigate these cases, and (2) has a decent argument that its appropriation of intellectual property is productive and not merely reproductive.

If Google keeps losing in France, I wonder if it will attempt to offer a different service in France than in the United States—perhaps selecting by IP address of request, or by portal site (e.g., google.fr will deliver different content to conform with the French rulings than google.com). In either case, it will be quite easy for people in France to access the same content as Americans. My fear is that we’ll end up with a “least common denominator” result, where Google and other web service company will be forced to conform to the most restrictive legal regime of any country connected to the Internet.

Donald Knuth was featured on a National Public Radio story this morning, Donald Knuth, Founding Artist of Computer Science. For all his brilliance, I think Knuth does a decent job of avoiding the limelight. It’s an interesting interview and I’m happy that many people who had never heard of the guy (or thought about the importance of hyphenation and typesetting) have been exposed to something new.

NPR is good that way: although much of their content is similar albeit more in depth than commercial radio news, they often throw in these important but not “immediately” topical stories.

NPR also suffers from a similar problem to the Free Software movement: figuring out a way to make money without limiting access to content or allowing advertisers to control the product. Of course, both NPR and Free Software do, in fact, make a lot of money, but with NPR it’s a particularly painful process. WBUR, one of several Boston Area public radio stations, seems to be in perpetual pledge drive mode. If they’re not doing a pledge drive currently, they’re running frequent on-air announcements encouraging people to donate before the next pledge drive so that the drive can be shortened.

Growing up in Vermont, I remember WVPR having one or two pledge drives a year—WBUR seems to have one every month. I realize that creating news has gotten expensive, especially with correspondents permanently stationed in Iraq, Afghanistan, and throughout the world, but there has got to be a better way to do this. It would be nice if NPR had a large enough foundation that it could largely subsist off investment income — but this is probably a long way in the future.

This might also be a good time to remind people to use email and not e-mail. Knuth has a great explanation: Email (let’s drop the hypen). It’s a bit ironic that Knuth is the best authority on the proper way to write “email,” since he himself abandoned the medium in 1990 (he writes, “I’d used email since about 1975, and it seems to me that 15 years of email is plenty for one lifetime.”). I hope it’s only a matter of time until the hyphenators see the folly of their ways, and email becomes the standard.

Bruce Schenier wonders why ChoicePoint seems to be so obviously asking to be regulated:

ChoicePoint actually has no idea if only 145,000 customers were affected by its recent security debacle. But it’s not doing any work to determine if more than 145,000 customers were affected — or if any customers before July 1, 2003 were affected — because there’s no law compelling it to do so.

I have no idea why ChoicePoint has decided to tape a huge “Please Regulate My Industry” sign to its back, but it’s increasingly obvious that it has.

I think the answer is quite simple: it will be much easier for ChoicePoint to implement some basic privacy safeguards if it is not put at a competitive disadvantage as a result. Regulation in this context could insure a relatively even playing field, and the big data aggregator/data mining companies would be forbidden from stooping to new lows of data disclosure in order to facilitate easier access to personal information by their customers, the data purchasers.

Perhaps ChoicePoint executives actually have a conscience, but competitive pressures prevent them from exercising that conscience. Or, more conspiratorially, maybe ChoicePoint realizes that it already has all the systems in place to implement better security and privacy protections and its competitors do not. If they were all forced to do this, ChoicePoint might be put at a competitive advantage.

I remember hearing a similar thing from a video rental company executive once: he was asked if he resented the Video Privacy Protection Act for depriving him of the opportunity to sell customer’s rental records to direct marketers. He responded that it didn’t bother him at all, since none of his competitors could sell that information either. Even if he believed it was wrong to sell that data, if it weren’t prohibited by law, he said he would be forced to do it or his competitors would be able to drive his business into the ground with the additional revenue.

All this is to say that markets only function within regulatory structures: the right wing mantra of “less regulation is good for business” misses the point that in many cases a healthier competitive environment is established with the right set of regulations.

Jack Balkin makes the best prediction I’ve seen on a Supreme Court case—see his prediction on the Ten Commandments Case.

In other news, several people have commented on my low blogging frequency of late. Unfortunately, I’ve been quite busy and thinking mostly about my work, which I can’t comment publicly on. So that leaves me with not much to say.