net.wars

It will be very easy for people to take away the wrong lessons from the story of Lori Drew, who this week was found guilty of several counts of computer fraud in a case of cyberbullying that drove 13-year-old Missouri native Megan Meier to suicide.

The gist: in 2006, 49-year-old Lori Drew, a neighbor of Meier's who believed that Meier had spread gossip about her own 13-year-old daughter, a former friend. With help from her daughter and her 18-year-old assistant, Drew created a MySpace page belonging to a fictitious 16-year-old boy named Josh Evans. For some weeks Evans sent Meier flirtatious messages, then abruptly dumped her with a stream of messages and bulletings, ending with the message, "The world would be a better place without you." Meier, who had for five years been taking prescription medication for attention deficit disorder and depression, who was overweight and lacked self-esteem, hanged herself.

The story is a horror movie for parents. This is a teen who was, her mother said in court, almost always supervised in her Internet use. In fact, Meier and Drew's daughter had, some months earlier, created a fake MySpace page to talk to boys online, an escapade that caused Meier's mother to close down her MySpace access for some months. On the day of Meier's suicide, her mother was on her way to the orthodontist with her younger daughter when Meier, distraught, reported the stream of unpleasant messages. Her mother told her to sign off. She didn't; when her mother came home there was a brief altercation; they found her 20 minutes later.

The basic elements of the story are not, of course, new. Identity deception is as old as online services; the best-known early case was that of Joan, a CompuServe forum regular who for more than two years in the early 1990s claimed to be a badly disabled former neuropsychologist whose condition made her reluctant to meet people, especially her many online friends. Joan was in fact a fictional character, the increasingly elaborate creation of a male New York psychiatrist named Alex.

Cyberbullying is, of course, also not new. You can go back to the war between alt.tasteless and rec.pets.cats in 1992, if you like, but organized playground behavior seems to flourish in every online medium. Gail Williams, the conference manager at the WELL, said about ten years ago that a lot of online behavior seems to be people working our their high school angst, and nothing has changed in the interim except that a lot of people online now actually still in high school. And unfortunately for them, the people they're working out their high school angst with are bigger, older, more experienced, and a lot savvier about where to stick in the virtual knife. People can be damned unpleasant sometimes.

But let's look at the morals people are finding. EfluxMedia:
The case of Megan Meier calls for boundaries when it comes to cyberbullying and the use of social networking sites in general, but also calls for reason. Social networking sites and the Internet in general have become more than just virtual realities, they are now part of our everyday lives, and they influence us in ways that we cannot ignore. What we must learn from this is that our actions may have unimaginable consequences on other people, even when it comes to the Internet, so think twice before you act.

Boundaries? Meier was far more rigorously supervised online than the average teen. Who's going to supervise the behavior of a 49-year-old woman to make sure she doesn't cross the line?

More to the point, the court's verdict found that Drew had broken federal laws concerning computer fraud. Is it hacking to set up a pseudonymous MySpace page and send fraudulent postings? The MySpace's 2006 terms and conditions required registration information to be truthful and banned harassment and sexual exploitation. Have MySpace's terms become federal law?

The answer is probably that there was no properly applicable law. We've seen that situation before, too - Robert Schifreen and Steve Gold were prosecuted under the laws against wire fraud. The eventual failure of the case on appeal proved the need for the Computer Misuse Act and comparable laws against hacking elsewhere in the world. Ironically, these laws are now showing their limits, too, as the Drew case proves. We can now, I suppose, expect to see a lot of proposals for laws banning cyberbullying under which people like Drew could be more correctly prosecuted.

But the horror movie is only partly about online; online, in this case MySpace, allowed the hoaxers to post "Josh Evans'" bare-chested photo. The same kind of hoax, with hardly less impact, could have been carried out by letter and poster. Wanda Holloway didn't need online to contract to muder her daughter's more successful cheerleading rival.

Ultimately, the lesson we should be learning is the same one we heard at this year's Computers, Freedom, and Privacy conference: just like rape and incest, you are more at risk for harassment and cyberbullying from people you know. Unfortunately, most such law seems to be written with the idea that it's strangers who are dangerous.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by at 5:04 PM | Permalink | Comments (0) | TrackBacks (0)

It's one of the curiosities of being a free speech advocate that you find yourself defending people for saying things you'd never say yourself.

I noticed this last week when a friend, after delivering an impassioned defense of the rights of bloggers to blog about the world around them - say, recounting the Nazi costumes people were wearing to the across-the-street neighbor's party last weekened or detailing the purchases your friend made in the drugstore - and then turned around and said she didn't know why she was defending it because she wouldn't actually put things like that in her blog. (Unless, I suppose, her neighbor was John McCain.)

Probably most bloggers have struggled at one point or another with the collision these tell-the-world-your-private-thoughts technologies create between freedom of speech and privacy. Usually, though, invading your own privacy is reasonably safe, even if that invasion takes the form of revealing your innermost fantasies. Yes, there's a lot of personal information in them thar hills, and the enterprising data miner could certainly find out a lot about me by going through my 17-year online history via Google searches and intelligent matching. But that's nothing to the situation Newcastle civil servant Darryn Walker finds himself in after allegedly posting a 12-page kidnap, torture, and murder fantasy about the pop group Girls Aloud.

As unwise postings go, this one sounds like a real winner. It was (reports say) on a porn site; it named a real pop group (making it likely to pop up in searches by the group's fans); and identified as the author was a real, findable person - a civil servant, no less. A member of the public reported the story to the Internet Watch Foundation, who reported it to the police, who arrested Walker under the Obscene Publications Act.

The IWF's mission in life is to get illegal content off the Net. To this end, it operates a public hotline to which anyone can report any material they think might be illegal. The IWF's staff sift through the reports - 31,776 in 2006, the last year their Web site shows statistics for - and determines whether the material is "potentially illegal". If it is, the IWF reports it to the police and also recommends to the many ISPs who subscribe to its service that the material be removed from their servers. The IWF so far has focused on clearly illegal material, largely pornographic images, both photographic and composited, of children. Since 2003, less than 1 percent of illegal images involving children is hosted in the UK.
As a cloistered folksinger I had never heard of the very successful group Girls Aloud; apparently they were created like synthetic gemstones in 2002 by the TV show Popstars: the Rivals. According to their Wikipedia entries, they're aged 22 to 26 - hardly children, no matter how unpleasant it is to be the heroines of such a violent fantasy.

So the case poses the question: is posting such a story illegal? That is, in the words of the Obscene Publications Act, is it likely to "deprave and corrupt"? And does it matter that the site to which it was posted is not based in the UK?

It is now several decades since any text work was prosecuted under the Obscene Publications Act, and much longer since any such prosecution succeeded. The last such court case, the 1976 prosecution against the publishers of Inside Linda Lovelace apparently left the Metropolitan Police believing they couldn't win . In 1977, a committee recommended excluding novels from the Act. Novels, not blog postings.

Succeeding in this case would therefore potentially extend the IWF's - and the Obscene Publications Unit's - remit by creating a new and extremely large class of illegal material. The IWF prefers to use the term "child abuse images" rather than "child pornography"; in the case of actual photographs of real incidents this is clearly correct. The argument for outlawing composited or wholly created images as well as photographs of actual children is that pedophiles can use them to "groom" their targets - that is, to encourage their participation in child abuse by convincing them that these are activities that other children have engaged in and showing them how. Outlawing text descriptions of real events could block child abuse victims from publishing their own personal stories; outlawing fiction, however disgusting seems a wholly ineffectual way of preventing child abuse. Bad things happen to good fictional characters all the time.

So, as a human being I have to say that I not only wouldn't write this piece, I don't even want to have to read it. But as a free speech advocate I also have to say that the money spent tracking down and prosecuting its writer would have been more effectively spent on...well, almost anything. The one thing the situation has done is widely publicize a story that otherwise hardly anyone knew existed. Suppressing material just isn't as easy as it used to be when all you had to do was tell the publisher to get it off the shelves.

Of course, for Walker none of this matters. The most likely outcome for him in today's environment is a ruined life.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by at 5:48 PM | Permalink | Comments (0) | TrackBacks (0)

One of the things about living in a foreign country is this: every so often the actual England I live in collides unexpectedly with the fictional England I grew up with. Fictional England had small, friendly villages with murders in them. It had lowering, thick fogs and grim, fantastical crimes solvable by observation and thought. It had mathematical puzzles before breakfast in a chess game. The England I live in has Sir Arthur Conan Doyle's vehement support for spiritualism, traffic jams, overcrowding, and four million people who read The Sun.

This week, at the GikIII Workshop, in a break between Internet futures, I wandered out onto a quadrangle of grass so brilliantly and perfectly green that it could have been an animated background in a virtual world. Overlooking it were beautiful, stolid, very old buildings. It had a sign: Balliol College. I was standing on the quad where, "One never failed to find Wimsey of Balliol planted in the center of the quad and laying down the law with exquisite insolence to somebody." I know now that many real people came out of Balliol (three kings, three British prime ministers, Aldous Huxley, Robertson Davies, Richard Dawkins, and Graham Greene) and that those old buildings date to 1263. Impressive. But much more startling to be standing in a place I first read about at 12 in a Dorothy Sayers novel. It's as if I spent my teenaged years fighting alongside Angel avatars and then met David Boreanaz.

Organised jointly by Ian Brown at the Oxford Internet Institute and the University of Edinburgh's Script-ed folks, GikIII (prounounced "geeky") is a small, quirky gathering that studies serious issues by approaching them with a screw loose. For example: could we control intelligent agents with the legal structure the Ancient Romans used for slaves (Andrew Katz)? How sentient is a robot sex toy? Should it be legal to marry one? And if my sexbot rapes someone, are we talking lawsuit, deactivation, or prison sentence (Fernando Barrio)? Are RoadRunner cartoons all patent applications for devices thought up by Wile E. Coyote (Caroline Wilson)? Why is The Hound of the Baskervilles a metaphor for cloud computing (Miranda Mowbray)?

It's one of the characteristics of modern life that although questions like these sound as practically irrelevant as "how many angels, infinitely large, can fit on the head of a pin, infinitely small?", which may (or may not) have been debated here seven and a half centuries ago, they matter. Understanding the issues they raise matters in trying to prepare for the net.wars of the future.

In fact, Sherlock Holmes's pursuit of the beast is metaphorical; Mowbray was pointing out the miasma of legal issues for cloud computing. So far, two very different legal directions seem likely as models: the increasingly restrictive EULAs common to the software industry, and the service-level agreements common to network outsourcing. What happens if the cloud computing company you buy from doesn't pay its subcontractors and your data gets locked up in a legal battle between them? The terms and conditions in effect for Salesforce.com warn that the service has 30 days to hand back your data if you terminate, a long time in business. Mowbray suggests that the most likely outcome is EULAs for the masses and SLAs at greater expense for those willing to pay for them.

On social networks, of course, there are only EULAs, and the question is whether interoperability is a good thing or not. If the data people put on social networks ("shouldn't there be a separate disability category for stupid people?" someone asked) can be easily transferred from service to service, won't that make malicious gossip even more global and permanent? A lot of the issues Judith Rauhofer raised in discussing the impact of global gossip are not new to Facebook: we have a generation of 35-year-olds coping with the globally searchable history of their youthful indiscretions on Usenet. (And WELL users saw the newly appointed CEO of a large tech company delete every posting he made in his younger, more drug-addled 1980s.) The most likely solution to that particular problem is time. People arrested as protesters and marijuana smokers in the 1960s can be bank presidents now; in a few years the work force will be full of people with Facebook/MySpace/Bebo misdeeds and no one will care except as something laugh at drunkenly late out in the pub.

But what Lilian Edwards wants to know is this: if we have or can gradually create the technology to make "every ad a wanted ad" - well, why not? Should we stop it? Online marketing is at £2.5 billion a year according to Ofcom, and a quarter of the UK's children spend 22 hours a week playing computer games, where there is no regulation of industry ads and where Web 2.0 is funded entirely by advertising. When TV and the Internet roll together, when in-game is in-TV and your social network merges with megamedia, and MTV is fully immersive, every detail can be personalized product placement. If I grew up five years from now, my fictional Balliol might feature Angel driving across the quad in a Nissan Prairie past a billboard advertising airline tickets.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by at 3:22 PM | Permalink | Comments (0) | TrackBacks (0)

Yesterday, a US federal appeals court reversed a lower court ruling that might have invalidated open-source licenses. The case, Jacobsen v. Katzer, began more than two years ago with a patent claim.

Open-source software developer Robert Jacobsen manages the collective effort that produced Java Model Railroad Interface, which allows enthusiasts to reprogram the controller chips in their trains. JMRI is distributed under the Kamind, aka KAM Industriesviolating the conditions "does not create liability for copyright infringement where it would not otherwise exist". It is this decision that has been reversed.

This win for Jacobsen doesn't get him anything much yet: the case is simply remanded back to the California District Court for further consideration. But it gets the rest of the open-source movement quite a lot. The judgement affirms Richard Stallman's original insight that created the General Public License in the first place, that copyright could be used to set works free as well as to close them down.

The decision hinges on the question of whether the licensing terms are conditions or covenants, a distinctions that's clear as glass to a copyright lawyer and clear as mud to everyone else. According to the Electronic Frontier Foundation's helpful explanation (and they have lots of copyright lawyers to explain this sort of thing), it's the difference between contract law and copyright law. Violating conditions means you don't have a copyright license; violating covenants means you've broken the contact but you still have a license. In the US, it's also the difference between federal and state law. When you violate the license's conditions, therefore, as Lawrence Lessig explains , what you have is a copyright infringement.

It's hard to understand how the district court could have taken the view it did. It is very clear from both the licenses themselves and from the copious documentation of the thinking that went into their creation that their very purpose was to ensure that work created collectively and intended to be free for use, modification, and redistribution could not be turned into a closed commercial product that benefited only the company or individual that sells it. To be sure, it's not what the creators of copyright - intended as a way to give authors control over publishers - originally had in mind.

But once you grant the idea of a limited monopoly and say that creators should have the right to control how their work is used, it makes no sense to honor that right only if it's used restrictively. Either creators have the legal right to determine licensing conditions or they have not. (The practical right is of course a different story; economics and the size of publishing businesses give them sufficient clout to impose terms on creators that those creators wouldn't choose.). Seems to me that a creator could specify as a licensing condition that the work could only be published on the side of a cow, and any publisher fool enough to agree to that would be bound by it or be guilty of infringement.

But therein lies the dark side of copyright licensing conditions. The Jacobsen decision might also give commercial software publishers Ideas about the breadth of conditions they can attach to their end-user license agreements. As if these weren't already filled with screeds of impenetable legalese, much of which could be charitably described as unreasonable. EFF points this out and provides a prime example: the licensing terms imposed by World of Warcraft owner Blizzard Entertainment have been upheld in court.

Blizzard's terms ban automated playing software such as Glider, whose developer, Michael Donnelly, was the target of the suit. EFF isn't arguing that Blizzard doesn't have the right to ban bots from its servers; EFF just doesn't think accusing Glider users of copyright infringement for doing is a good legal precedent. Public Knowledge has a fuller explanation of the implications of this case, which it filed as an amicus brief. Briefly, PK argues that upholding these terms as copyright conditions could open the way for software publishers to block software that interoperates with theirs. (Interestingly, Blizzard's argument seems to rely on the notion that software copied into RAM is a copyright infringement, an approach I recall Europe rejecting a few years ago).

You'd think no company would want to sue its own customers. But keeping the traditional balance copyright law was created to achieve between providing incentives for artists and creators and public access to ideas continues to require more than relying on common sense.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by at 10:32 AM | Permalink | Comments (0) | TrackBacks (0)

Most net.wars are not new. Today's debates about free speech and censorship, copyright and control, nationality and disappearing borders were all presaged by the same discussions in the 1980s even as the Internet protocols were being invented. The rare exception: online gambling. Certainly, there were debates about whether states should regulate gambling, but a quick Usenet search does not seem to throw up any discussions about the impact the Internet was going to have on this particular pastime. Just sex, drugs, and rock 'n' roll.

The story started in March, when the French Tennis Federation (FFT - Fédération Française de Tennis) filed suit in Belgium against Betfair, Bwin, and Ladbrokes to prevent them from accepting bets on matches played at the upcoming French Open tennis championships, which start on May 25. The FFT's arguments are rather peculiar: that online betting stains the French Open's reputation; that only the FFT has the right to exploit the French Open; that the online betting companies are parasites using the French Open to make money; and that online betting corrupts the sport. Bwin countersued for slander.

On Tuesday of this week, the Liège court ruled comprehensively against the FFT and awarded the betting companies costs.

The FFT will still, of course, control the things it can: fans will be banned from using laptops and mobile phones in the stands. The convergence of wireless telephony, smart phones, and online sites means that in the second or two between the end of a point and the electronic scoreboard updating, there's a tiny window in which people could bet on a sure thing. Why this slightly improbable scenario concerns the FFT isn't clear; that's a problem for the betting companies. What should concern the FFT is ensuring a lack of corruption within the sport. That means the players and their entourages.

The latter issue has been a touchy subject in the tennis world ever since last August, when Russian player Nikolay Davydenko, currently fourth in the world rankings, retired in the third and final set of a match in Poland against 87th ranked Marin Vassallo Arguello, citing a foot injury. Davydenko was accused of match-fixing; the investigation still drags on. In the resulting publicity, several other players admitted being approached to fix matches. As part of subsequent rule-tightening by the Association of Tennis Professionals, the governing body of men's professional tennis, three Italian players were suspended briefly late last year for betting on other players' matches.

Probably the most surprising thing is that tennis, along with soccer and horse racing, is actually among the most popular sports for betting. A minority sport like tennis? Yet according to USA Today, the 2007 Paris Masters event saw $750 million to $1.5 billion in bets. I can only assume that the inverted pyramid of matches every week involving individual players fits well with what bettors like to do.

Fixing matches seems even more unlikely. The best payouts come from correctly picking upsets, the bigger the better. But top players are highly unlikely to throw matches to order. Most of them play a relatively modest number of events (Davydenko is admittedly the exception) and need all the match wins and points from those events to sustain their rankings. Plus, they're just too damn rich.

In 2007, Roger Federer, the ultra-dominant number one player since the end of 2003, earned upwards of $10 million in prize money alone; Davydenko picked up over $2 million (and has already won another $1 million in 2008). All of the top 12 earned over $1 million. Add in endorsements, and even after you subtract agents' fees, tax, and travel costs for self and entourage, you're still looking at wealthy guys. They might tank matches at events where they're being paid appearance fees (which are legal on the men's tour at all but the top 14 events, but proving they've done so is exceptionally difficult. Fixing matches, which could cost them in lost endorsements on top of the tour's own sanctions, surely can't be worth it.

There are several ironies about the FFT's action. First of all (something most of the journalists covering this story don't mention, probably because they don't spend a lot of time watching tennis on TV), Bwin has been an important advertiser sponsoring tennis on Eurosport. It's absolutely typical of the counter-productive and intricately incestuous politics that characterize the tennis world that one part of the sport would sue someone who pays money into another part of the sport.

Second of all, as Betfair and Bwin pointed out, all three of these companies are highly regulated European licensed operations. Ruling them out of action would mean shift online betting to less well regulated offshore companies. They also pointed out the absurdity of the parasites claim: how could they accept bets on an event without using its name? Betfair in particular documented its careful agreements with tennis's many governing bodies.

Third of all, the only reason match-fixing is an issue in the tennis world right now is that Betfair spotted some unusual betting patterns during that Polish Davydenko match, cancelled all the bets, and went public with the news. Without that, Davydenko would have avoided the fight over his family's phone records. Come to think of it, making the issue public probably explains the FFT's behavior: it's revenge.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by at 12:10 PM | Permalink | Comments (0) | TrackBacks (0)

Some years back when I was writing about the data protection directive, Simon Davies, director of Privacy International, predicted a trade war between the US and Europe over privacy laws. It didn't happen, or at least it hasn't happened yet.

The key element to this prediction was the rule in the EU's data protection laws that prohibited sending data on for processing to countries whose legal regimes aren't as protective as those of the EU. Of course, since then we've seen the EU sell out on supplying airline passenger data to the US. Even so, this week the Article 29 Data Protection Working Party made recommendations about how search engines save and process personal data that could drive another wedge between the US and Europe.

The Article 29 group is one of those arcane EU phenomena that you probably don't know much about unless you're a privacy advocate or paid to find out. The short version: it's a sort of think tank of data protection commissioners from all over Europe. The UK's Information Commissioner, Richard Thomas, is a member, as are his equivalents in countries from France to Lithuania.

The Working Party (as it calls itself) advises and recommends policies based on the data protection principles enshrined in the EU Data Protection Directive. It cannot make law, but both its advice to the European Commission and the Commission's action (or lack thereof) are publicly reported. It's arguable that in a country like the UK, where the Information Commissioner operates with few legal teeth to bite with, the existence of such a group may help strengthen the Commissioner's hand.

(Few legal teeth, at least in respect of government activities: the Information Commissioner has issued an opinion about Phorm indicating that the service must be opt-in only. As Phorm and the ISPs involved are private companies, if they persisted with a service that contravened data protection law, the Information Commissioner could issue legal sanctions. But while the Information Commissioner can, for example, rule that for an ISP to retain users' traffic data for seven years is disproportionate, if the government passes a law saying the ISP must do so then within the UK's legal system the Information Commissioner can do nothing about it. Similarly, the Information Commissioner can say, as he has, that he is "concerned" about the extent of the information the government proposes to collect and keep on every British resident, but he can't actually stop the system from being built.)

The group's key recommendation: search engines should not keep personally identifiable search histories for longer than six months, and it specifically includes search engines whose headquarters are based outside the EU. The group does not say which search engines it studied, but it was reported to be studying Google as long ago as last May. The report doesn't look at requirements to keep traffic data under the Data Retention Directive, as it does not apply to search engines.

Google's shortening the life of its cookies and anonymizing its search history logs after 18 months turns out to have a significance I didn't appreciate when, at the time, I dismissed it as insultingly trivial (which it was): it showed the Article 29 working group that the company doesn't really need to keep all that data for so long. In

One of the key items the Article 29 group had to decide in writing its report on data protection issues related to search engines (PDF) is this: are IP addresses personal information? It sounds like one of those bits of medieval sophistry, like asking how many angels can dance on the head of a pin. In the dial-up days, it might not have mattered, at least in Britain, where local phone charges forced limited usage, so users were assigned a different IP address every time they logged in. But in the world of broadband, where even the supposedly dynamic IP addresses issued by cable suppliers may remain with a single subscriber for years on end. Being able to track your IP address's activities is increasingly like being able to track your library card, your credit card, and your mobile phone all at the same time. Fortunately, the average ISP doesn't have the time to be that interested in most of its users.

The fact is that any single piece of information that identifies your activities over a long period and can be mapped to your real-life identity has to be considered personal information or the data protection laws make no sense. The libertarian view, of course, would be that there are other search engines. You do not actually have to use Google, Gmail, or even YouTube. But if all search engines adopted Google's habits the choice would be more apparent than real. Time was when the US was the world's policeman. With respect to data, it seems that the EU has taken on this role. It will be interesting to see whether this decision has any impact on Google's business model and practices. If it does, that trade war could finally be upon us. If not, then Google was building up a vast data store just because we can.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

Posted by at 3:03 PM | Permalink | Comments (0) | TrackBacks (0)

This is a shortened version of a talk I gave at Musicians, Fans, and Copyright at the LSE on Wednesday, March 19, 2008.

Most discussions about copyright with respect to music do not include musicians. The notable exception is the record companies' trophy musicians who appear at government hearings. Because these tend to be the most famous and well-rewarded musicians they can find, their primarily contribution to the dabate seems to be to try to make politicians think, "We love you, we can't bear that you should starve, the record company must be right." It's a long time since I made a living playing, so I can't pretend to represent them. But I can make a few observations. Folk musicians in particular stand at the nexus of all the copyright arguments: they are contemporary artists and songwriters, but they mine their material from the public domain.

Every musician, at every level of the business, has been ripped off (PDF), usually when they can least afford it. The result is that they tend to be deeply suspicious of any attempt to limit their rights. The music business has such a long history of signing the powerless - young, inexperienced musicians, the black blues musicians of the Mississippi Delta, and many others - to exploitive contracts that it's hard to understand why they're still allowed to get away with it. Surely it ought to be possible to limit what rights and terms the industry can dictate to the inexperienced and desperate with stars in their eyes?

Steve Gillette, author with Tom Campbell of the popular 1966 song "Darcy Farrow", says that when Ian & Sylvia wanted to record the song, they were told to hire someone to collect royalties on their behalf. That person did little to collect royalties for many years. Gillette and Campbell eventually won a court judgement with a standard six-month waiting period - during which time John Denver recorded the song and put it on his best-selling album, Rocky Mountain High, giving the publisher a motive to fight back. They were finally able to wrest back control of the song in about 1990.

In book publishing it is commonplace for the rights to revert to authors if and when the publisher decides to withdraw their work from sale. There is no comparable practice in the music business. And so, people I know on the folk scene whose work has gone out of commercial release find themselves in the situation where their fans want to buy their music but they can't sell it. As one musician said, "I didn't work all those years to have my music stuck in a vault."

Pete Coe, a traditional performer and songwriter, tells me that the common scenario is that a young musician signs a recording contract early on, and then the company goes out of business and the recordings are bought by others. The purchasing company buys the assets - the recordings - but not the burden, the obligation to pass on royalties to the original artists. Coe himself, along with many others, is in this situation; some of his early recordings have been through two such bankruptcies. The company that owns them now owns many other folk releases of the period and either refuses to re-release the recordings or refuses to provide sales figures or pay royalties, and is not a member of MCPS. Coe points out that this company would certainly refuse to cooperate with any effort to claim the reversion of rights.

In a similar case, Nic Jones, a fine and widely admired folk guitarist who played almost exclusively traditional music, was in a terrible car accident in about 1981 that left him unable to play. Over the following years his recordings were bought up but not rereleased, so that an artist now unable to work could not benefit from his back catalogue. It is only in the last few years, with the cost of making and distributing music falling, that he and his wife have managed to release old live recordings on their own label. Term extension would, if anything, hurt Jones's ability to regain control over and exploit his own work. (Note: I have not canvassed Jones's opinion.)

The artists in these cases, like any group of cats, have reacted in different ways. Gillette, who comments also that in general it's the smaller operators who are the biggest problem, says, that term extension "only benefits the corporate media, and in my experience only serves to lend energy to turning the public trust into company assets".

Coe, on the other hand, favors term extension. "We determined," he said by email in 2006, "that once we'd regained our rights, publishing and recording, that they were never again to pass out of our control."

Coe's reaction is understandable. But I think many problems could be solved by forcing the industry to treat musicians and artists more fairly. It's notable that folk artists, through necessity, pioneered what's becoming commonplace now: releasing their own albums to sell to audiences direct at their gigs and via mail, now Web, order.

What the musicians of the future want and need, in my opinion, is the same thing that the musicians of the present and past wanted: control. In my view, there is no expansion of copyright that will give it to them.

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML).

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This year, 2008, may go down in history as the year geeks got politics. At etech this week I caught a few disparaging references to hippies' efforts to change politics. Which, you know, seemed kind of unfair, for two reasons. First: the 1960s generation did change an awful lot of things, though not nearly as many as they hoped. Second: a lot of those hippies are geeks now.

But still. Give a geek something that's broken and he'll itch to fix it. And one thing leads to another. Which is why on Wednesday night Lawrence Lessig explained in an hour-long keynote that got a standing ovation how he plans to fix what's wrong with Congress.

No, he's not going to run. Some 4,500 people on Facebook were trying to push him into it, and he thought about it, but preliminary research showed that his chances of beating popular Silicon Valley favorite, Jackie Speier, were approximately zero.

"I wasn't afraid of losing," he said, noting ruefully that in ten years of copyfighting he's gotten good at it. Instead, the problem was that Silicon Valley insiders would have known that no one was going to beat Jackie Speier. But outsiders would have pointed, laughed, and said, "See? The idea of Congressional reform has no legs." And on to business as usual. So, he said, counterproductive to run.

Instead, he's launching Change Congress. "Obama has taught us that it's possible to imagine many people contributing to real change."

The point, he said, will be to provide a "signalling function". Like Creative Commongs, Change Congress will give candidates an easy way to show what level of reform they're willing to commit tto. The system will start with three options: 1) refusing money from lobbyists and political action committees (private funding groups); 2) ban earmarks (money allocated to special projects in politicians' home states); 3) commit to public financing for campaigns. Candidates can then display the badge generated from those choices on their campaign materials.

From there, said Lessig, layer something like Emily's List on top, to help people identify candidates they're willing to suppot with monthly donations, thereby subsidizing reform.

Money, he admitted, isn't the entire problem. But, like drinking for an alcoholic, it's the first problem you must solve to be able to tackle any of the others with any hope of success.

In a related but not entirely similar vein, the guys who brought us They Work For You nearly four years ago are back with UN democracy, an attempt to provide a signalling function to the United Nations> by making it easy to find out how your national representatives are voting in UN meetings. The driving force behind UNdemocracy.com is Liverpool's Julian Todd, who took the UN's URL obscurantism as a personal challenge. Since he doesn't fly, presenting the new service were Tom Loosemore, Stefan Mogdalinski, and Danny O'Brien, who pointed out that when you start looking at the decisions and debates you start to see strange patterns: what do the US and Israel have in common with Palau and Micronesia?

The US Congress and the British Parliament are all, they said, now well accustomed to being televised, and their behaviour has adapted to the cameras. At the UN, "They don't think they're being watched at all, so you see horse trading in a fairly raw form."

The meta-version they believe can be usefully and widely applied: 1) identify broken civic institution; 2) liberate data from said institution. There were three more ingredients, but they vanished the slide too quickly. But Mogdalinski noted that where in the past they have said "Ask forgiveness, not permission", alluding to the fact that most institutions if approached will behave as though they own the data. He's less inclined to apologise now. After all, isn't it *our* data that's being released in the public interest?

Data isn't everything. But the Net community has come a long way since the early days, when the prevailing attitude was that technological superiority would wash away politics-as-usual by simply making an end run around any laws governments tried to pass. Yes, technology can change the equation a whole lot. For example, once PGP escaped laws limiting the availability of strong encryption were pretty much doomed to fail (though not without a lot of back-and-forth before it became official). Similarly, in the copyright wars it's clear that copyrighted material will continue to leak out no matter how hard they try to protect it.

But those are pretty limited bits of politics. Technology can't make such an easy end run around laws that keep shrinking the public domain. Nor can it by itself solve policies that deny the reality of global climate change or that, in one of Lessig's examples, back government recommendations off from a daily caloric intake of 10 percent sugar to one of 25 percent. Or that, in another of his examples, kept then Vice-President Al Gore from succeeding with a seventh part to the 1996 Communications Act deregulating ADSL and cable because without anything to regulate what would Congressmen do without the funds those lobbyists were sending their way? Hence, the new approach.

"Technology," Lessig said, "doesn't solve any problems. But it is the only tool we have to leverage power to effect change."

Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her Posted by at 4:09 AM | Permalink | Comments (0) | TrackBacks (0)