Enslaving Speech and Thought

“[...] I suggested in 'Repressive Tolerance' the practice of discriminating tolerance in an inverse direction, as a means of shifting the balance between Right and Left by restraining the liberty of the Right, thus counteracting the pervasive inequality of freedom (unequal opportunity of access to the means of democratic persuasion) and strengthening the oppressed against the oppressed [sic, should be "oppressors" -AMPP Ed.]. Tolerance would be restricted with respect to movements of a demonstrably aggressive or destructive character (destructive of the prospects for peace, justice, and freedom for all). Such discrimination would also be applied to movements opposing the extension of social legislation to the poor, weak, disabled. [...]”
-Herbert Marcuse, in a 1968 postcript to his 1965 essay "Repressive Tolerance"

Hear John McCain say “talking about campaign finance reform....I know that money corrupts....I would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt. If I had my choice, I'd rather have the clean government.” on the Don Imus Show (MSNBC), 2006-Apr-21, Portsmouth, NH, video courtesy of VMSdigital.com.

Read Lawrence Lessig's new (2004-Mar-26) book: Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (PDF download). Lessig's bio (from lessig.org) opens: ``Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school's Center for Internet and Society. Prior to joining the Stanford faculty, he was the Berkman Professor of Law at Harvard Law School. Lessig was also a fellow at the Wissenschaftskolleg zu Berlin, and a Professor at the University of Chicago Law School. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.''

Also read Defending the First Amendment from Antidiscrimination Laws, adapted from the book You Can't Say That!: The Growing Threat to Civil Liberties from Antidiscrimination Laws (Cato 2003), by David E. Bernstein.

Editor's note on free speech and the Internet: The Internet is like New York City, or in fact all the cities and towns and secluded cult and militia compounds in the world - plus, of course, all the libraries - all just milliseconds away. Parents of young children, indeed all adults entrusted with them, need to respect the Internet the way they respect the real world it reflects. It is their profound responsibility to do so. The state pursues lawbreakers whether the laws are broken on city streets or on the Internet, but it is neither a responsibility, nor indeed a permissible role, for the state to make city streets or the Internet safe for young children to explore and experience, unaccompanied and unguided by responsible, attentive adults. Children must not be left to fend for themselves in the marketplace of ideas. The Internet is not like a video game. When a young child sits in front of a networked computer, there should always be either a non-bypassable access control system gating network access (so that the child can only contact and be contacted by people approved by responsible adults, and web sites audited and approved by responsible adults), or a responsible adult at his side.

com.mis.sar \'ka:m-*-.sa:r\ n [Russ komissar, fr. G kommissar, fr. ML
   commissarius] 1a: a Communist party official assigned to a military unit to 
   teach party principles and policies and to ensure party loyalty 1b: one 
   resembling a political commissar in attempting to control public opinion or 
   its expression 2: the head of a government department in the U.S.S.R. until 
   1946

from PaidContent.org, 2012-Jan-5, by Staci D. Kramer:

NewsRight Launches With 29 Publishers; `Not A Litigation Shop'

Three years after the Associated Press started the News Registry to help publishers track their content online—and make money from reuse—comes NewsRight, the startup designed to make that work actually pay off.

Headed by David Westin, the former head of ABC News, NewsRight, the new name for AP spinoff NLG, moves into this phase with more than $30 million in cash and in-kind investment from 29 founding news and info publishers covering 841 sites. It also has the rights to license content—not just to track it through the microtag attached to every piece of content on member sites.

The in-kind investment covers the News Registry technology from AP that was spun off into NewsRight's predecessor and other tech assets. Westin, a former AP board member for broadcasting, joined as CEO in April. At ABC (NYSE: DIS) News, Westin ran a large news global organization. At NewsRight, he heads a lean staff spread between San Francisco and New York; he expects to make some sales and product hires soon.

The roster includes Advance, Hearst, the New York Times (NYSE: NYT) and the Washington Post Co. (NYSE: WPO)—but not Gannett (NYSE: GCI) (full list below). No specifics on the amount of cash but there are three different tiers of membership. Each member has one vote and no company has more than one board member; Bob Nutting, president and CEO of Ogden Newspapers, is the chairman.

The News Registry already tracks more than four billion impressions a month from nearly 170 million unique users but NewsRight has yet to sign a single deal. During an interview, Westin said the company was limited to preliminary discussion until it had the full rights clearance from its members.

NewsRight's first target: media monitoring services and others who charge enterprises for collecting news and info. He didn't want to get specific during an interview but for examples think Meltwater, Moreover, Vocus, and BurrellesLuce. He also didn't want to talk specifics about how the economics of a deal would work but said Newsright would get a fee with the bulk going back to publishers based on what they provide.

He hopes going public will encourage people to come up with new products that might have been considered too difficult before NewsRight could offer one-stop licensing across hundreds of sites. NewsRight services also include data and analytics that would show licensees how specific content is being used.

While NewsRight is headed by a lawyer, it would be a mistake to confuse NewsRight with Righthaven or other concepts based on raising money from copyright transgressions. Publishers can use the information provided by NewsRight to pursue their own actions but that's not the startup's mission. “We don't own the copyrights, we couldn't bring a lawsuit if we wanted to,” says Westin. “We really are interested in entering to business relationships and contracts. We're not a litigation shop.”

Full list of NewsRight founding members: Advance Publications, Associated Press, Axel Springer Group, A.H.Belo Management Services, Belo Management Services, Business Wire, Community Newspaper Holdings, El Dia, Galveston Newspapers, Gatehouse Media, The Gazette Company, Hearst Newspapers, Journal Communications (NYSE: JRN), Landmark Media Enterprises, McClatchy (NYSE: MNI), Media General (NYSE: MEG), MediaNews Group, Morris Communications, Morris Multimedia, NPG Newspapers, The New York Times Co., Ogden Newspapers, Pioneer Newspapers, Schurz Communications, E.W. Scripps (NYSE: SSP), Stephens Media, Swift Communications, Times Publishing Co. and Washington Post Co..

from Dr. Dobb's Journal, 2012-May-1, by Andrew Binstock, Editor in Chief:

Oracle and the End of Programming As We Know It

If Oracle prevails in its claim that APIs can be copyrighted, nearly every aspect of programming will be changed for the worse.

Oracle is a company that's never particularly cottoned to developers. While Microsoft and Google have developer DNA wired deeply into their genes, Oracle is first and foremost a database company that prides itself on ruthlessly pursuing its business agenda with a take-no-prisoners approach. Whether its reckless approach to technology appeals to developers or any other community matters little to the company. Because Oracle stands for nothing but its own interests and because of its long history of aggression, it is feared by all market segments it touches: suppliers, competitors, and its own customers.

There is little surprise then to see it in court in San Francisco fighting Google, claiming patent infringement due to the latter's development of the Android operating system. Google, certainly no stranger to pushing the legal limits in its quest to access as much data as possible, is hardly a friend to licensing and copyright. Its fights with the publishing industry over copyrights are legendary and have generally forced Google to backtrack. Its expansive view of its access to data is at the heart of current uproars over Street View and the newly announced GDrive.

So, it seems almost inevitable that the two behemoths would meet in court one day. Initially, Oracle's suit and Google counter-suit looked to be one of those slow-moving affairs that was fascinating to watch from a distance in much the same way as the trial pitting the U.S. Department of Justice against Microsoft a decade ago.

However, events in San Francisco quickly took a sinister turn when Oracle posited an ominous theory: that Google had violated Oracle's Java copyrights by reimplementing Java APIs in Android. The question of the copyrightability of APIs is the hinge on which the first part of the trial now rests, and it provides a disturbing vision of how software development might look should Oracle prove this claim.

In a nutshell, if the jury sides with Oracle that the copyrights in the headers of every file of the Java source base apply specifically to the syntax of the APIs, then Oracle can extract payment and penalties from Google for having implemented those APIs without Oracle's blessing (or, in more specific terms, without a license).

Should this come to pass, numerous products will suddenly find themselves on an uncertain legal standing in which the previously benign but now newly empowered copyright holders might assert punitive copyright claims. Chief among these would be any re-implementation of an existing language. So, Jython, IronPython, and PyPy for Python; JRuby, IronRuby, and Rubinius for Ruby; Mono for C# and VB; possibly C++ for C, GCC for C and C++ and Objective-C; and so forth. And of course, all the various browsers that use JavaScript might owe royalties to the acquirers of Netscape's intellectual property.

Essentially, every language implementation not issued forth by the copyright holder will be suspect until the copyright owners announce a permanent statement dispensing with any threats to enforce the copyrights. There is no reason to believe that copyright holders will naturally act with such restraint. As we know, Oracle certainly has not. And who's to say the owners of Bell Labs care enough about the negative programming consequences of enforcing language copyrights when they can see possible licensing fees of tens if not hundreds of millions of dollars are a possible result?

The problem does not stop with languages, of course. Would Linux be at risk for all the UNIX APIs it recreated? Or would any of the ports of various libraries be similarly in danger? Probably so.

During the trial, Sun's last two CEOs provided conflicting evidence. In a nutshell, Jonathan Schwartz testified for Google's view (and his email congratulating Google on Android is a crucial piece of testimony), while Scott McNealy testified unequivocally that APIs were copyrightable, copyrighted, and not open to duplication by unlicensed third parties. Both views are in character. McNealy fought the UNIX wars on behalf of Solaris precisely on the basis of the extra libraries and APIs that distinguished it from HP-UX, IRIX, and AIX. I have no doubt that if this case had arrived 15 years ago, McNealy would have testified precisely the same way. Specific libraries and their attendant APIs were crucial means for companies to establish and maintain a competitive advantage.

This role for APIs tends to support Oracle's view that they are the property of the owners and are not intended for free use by unlicensed parties wanting to implement them. And Google's internal deliberations that show an awareness that a license might be necessary would also support the idea that the APIs are property. On this basis and the careful copyrights in each document, I am unwillingly led to conclude that the jury might not deliver good news when it returns from its deliberations. Of course, I deeply hope I'm wrong.

However, a silver lining could present itself: The jury could affirm that the APIs are copyrighted but that the syntax of the function signatures are a fair use exception. This would safeguard the right to reimplement APIs forever without fear of suit for copyright violation. And it would not be an unreasonable finding.

Trials are troublesome events in the course of computing history. They have delivered odder verdicts than one that would side entirely with Oracle. You might recall that the Lotus v. Borland suit (1990) originally resulted in a ruling affirming the copyrightability of a menu hierarchy. Not until the case reached the U.S. Supreme Court in 1996 was that bit of nonsense definitively overturned. Let us hope that there's no need for that much litigation to ensure forever that APIs can be freely copied.

from CNET, 2012-Apr-4, by Ben Parr:

Why the coming patent crisis is inevitable
The reason is simple: there isn't enough political will or pressure to institute massive patent reform without a crisis to rally around.

A week isn't complete in the tech industry without somebody suing somebody else over patents.

This time, Facebook is countersuing Yahoo, charging that Yahoo violated 10 of its patents. This move, of course, comes less than a month after Yahoo sued Facebook for allegedly infringing on 10 of its patents.

Facebook's countersuit shouldn't surprise anybody; it was always going to fight fire with fire, especially since Yahoo started this unnecessary fight. It's the same reason Facebook purchased 750 patents from IBM last month -- it needed more ammunition in a patent arms race that is quickly escalating.

But I'm shocked by some of the patents over which these two companies are suing each other. One of Yahoo's patents focuses on the "optimum placement of advertisements on a webpage", while Facebook has two patents that cover a "system for controlled distribution of user profiles over a network." Yahoo owns the patent for a "method to determine the validity of an interaction on a network", but "generating a feed of stories personalized for members of a social network" belongs to Facebook.

You really can receive a software patent for almost anything these days, it seems.

Facebook and Yahoo aren't the only ones collecting patents and threatening to use them like stockpiled nuclear weapons, though. Here are just some of the patent disputes that have made headlines in the last two weeks: Apple and Samsung, Microsoft and Motorola, RIM and NXP, Oracle and Google, and Tivo and Motorola.

Patents have played an important role in protecting an inventor's intellectual property and fostering innovation throughout history. However, their usefulness in software is far more limited, and in recent years has simply become damaging to innovation, thanks to patent trolls using IP they've acquired to sue smaller tech companies and make a quick buck.

Patent law simply wasn't designed for the always changing, rapidly developing world of software. Inventing a way for "generating a feed of stories" isn't the same as inventing a new type of fuel injection system or a new ultralight alloy for space travel. But software companies file patents like crazy because companies like Yahoo get desperate and start suing, and your only defense is to have your own stockpile of patents that will help you negotiate a settlement faster.

It's the tech industry's version of mutually assured destruction. And all the while, the patent situation inches closer toward a crisis that will make the SOPA controversy look like a walk in the park. At some point in the future, a company is going to skip the settlement and use the courts to shut down a popular and universal feature on the Web's top domains, simply because it has a patent that says it came up with the notion first. It will be a shock that reverberates all the way to the U.S. government and the World Trade Organization.

I suspect a patent crisis is both necessary and inevitable. The reason is simple: there isn't enough political will or pressure to institute massive patent reform without a crisis to rally around.

That's why the cycle of patents, lawsuits, and settlements isn't ending anytime soon. Now, if you'll excuse me, I'm going to go file a patent for a method of identifying patent trolls, just to see if I can.

from the Economist, 2012-Mar-29, by G.L.:

The Arab Spring's online backlash

A BILL on “information-technology crimes” with extraordinarily broad wording and harsh punishments is due to come before Iraq's parliament in April, once the dignitaries and television cameras at this week's Arab League summit in Baghdad have departed.

The bill is one of four proposed laws that could severely restrict basic freedoms. (A fifth, on journalists, was passed last summer.) Access Now, a human-rights group with a focus on technology, has a report on it out today. According to an English translation from last August, it includes mandatory life sentences for using computers or the internet to “compromise” the “unity” of the state (Article 3), promote “ideas which are disruptive to public order” (Article 4), or engage in “trafficking, promoting or facilitating the abuse of drugs” (Article 5), which could include merely blogging about them.

Some of the most egregiously loose definitions make it a crime—though at least not one carrying a life sentence—to cause “damage, defect or obstruction to computer hardware, operating systems, software or information networks”, even by mistake; to “intrude, annoy or call computer and information network users without authorisation”; to “benefit unduly from telecommunications services” (all these from Article 14); or to “relate words, images or voices to someone else involving cursing or slander” (Article 22).

The law on journalists and the other three bills, which cover public assembly, telecoms and political parties, are similar in style, notes a report from the Centre for Law and Democracy (CLD), another human-rights group: filled with vague references to “public morals”, “public order”, “national interests”, “threatening” or “insulting” messages, and so on.

Several governments tried temporarily restricting or shutting off the internet during the Arab Spring, and it should be no surprise that they are now looking for more permanent ways to limit its influence. Yet these stem from more than a simple desire to repress.

The problem, says Katherine Maher of Access Now, is that across the Arab world, leaders are “looking around and realising that an entire industry has emerged in the last 10-15 years that has largely evaded any type of regulatory oversight.” Laws are sorely needed to cover such things as identity theft, e-commerce, data security and intellectual-property protection, not to mention the media and free speech. So Iraq's internet law contains some good points. But the rush to catch up, combined with official nerves rattled by the Arab Spring (or, in Iraq's case, its sectarian conflict), has produced a swathe of bad legislation.

Lebanon's government is considering an internet law that, says Ms Maher, is similar to Iraq's in breadth, if not in harshness. The Tunisian Internet Authority—now something of a defender of online freedom, after having been a key tool of repression for the deposed former president—is still fighting a court ruling last year ordering it to censor the web for pornography. Egypt's telecoms ministry is working on plans to do the same.

And in various countries, online journalists and activists continue to be jailed, beaten or killed for expressing views that are unpopular with either the government or the religious authorities. Iraq's law on journalists includes provisions that are supposed to protect them, but these are “simply too vague to be of practical use”, according to the CLD report.

The one bright spot in the picture is Libya, says Courtney Radsch of Freedom House, a group that promotes freedom and democracy around the world. In the north African country, which she has just visited, the thorough disintegration of the old regime has allowed people who believe in an untrammeled internet to get into top jobs. Elsewhere, the revolution has been far less complete.

from Foreign Policy, 2012-Apr-5, by Josh Rogin:

Exclusive: UAE detains foreign NGO workers

In an escalation of the United Arab Emirates' crackdown on foreign NGOs, the UAE government has detained foreign employees of the National Democratic Institute (NDI) and is preventing at least one of them from leaving the country.

Late Wednesday, the director of NDI's Dubai office, Patricia Davis, an American, and her deputy director Slobodon Milic, a Serbian national, were stopped at the Dubai airport by UAE government authorities as they tried to leave the country, according to three sources briefed on the incident. Davis was eventually allowed to leave the UAE, but Milic was not. He was detained by authorities, and subsequently released but is still barred from leaving the UAE. The UAE government has also notified NDI that they plan to file criminal indictments against foreign NGO workers in the UAE for foreign interference in political affairs, the sources said.

"We understand that the deputy director for NDI in the UAE was briefly detained and then released. We are seeking more information from the government of the UAE on the matter," a State Department official told The Cable. "As the Secretary has said many times, we believe NGOs play a valuable and legitimate role in a country's political and economic development. They should be able to operate consistent with regulations and standards and without constraints."

"We will continue to support civil society in the UAE and across the region. NDI is a respected organization that has been working across the region and beyond to promote civil society development and democratic values. The State Department is a firm supporter of NDI's activities," the official said.

The move mirrors the actions taken by the Egyptian government over the past three months, which included barring over a dozen foreign workers from leaving Egypt -- including Americans working for NDI, the International Republican Institute (IRI), and Freedom House -- and subsequently indicting them on criminal charges.

The U.S. government paid $5 million in "bail" money to secure the March 1 release of American NGO workers trapped in Egypt, including Sam LaHood, the Cairo director of the IRI and the son of Transportation Secretary Ray LaHood. Secretary of State Hillary Clinton then waived congressional restrictions on the $1.5 billion of annual U.S. aid to Egypt, which would have required that the State Department certify that Egypt was moving toward democracy and upholding civil rights.

Several of the American NGO workers who were indicted by the Egyptian government were not in Egypt at the time, and the National Journal reported Wednesday that the Egyptian government has asked Interpol to issue international arrest warrants for those NGO workers. Meanwhile, the Obama administration is trying to convince Interpol to reject those requests.

The UAE government shut down and revoked the license of the NDI office in Dubai last week, just days before Clinton visited the region and raised the issue in a meeting with Foreign Minister Sheikh Abdullah bin Zayed Al Nahyan.

"We very much regret it," Clinton said after the meeting. "We are as you know, as anyone who has visited the United States, strong believers in a vibrant civil society ... I expect our discussions on this issue to continue."

A U.S. congressional staff delegation has been in the UAE this week as well, and has been raising the NDI issue with both UAE and American officials on the ground. One congressional staffer in Dubai told The Cable Wednesday that UAE officials argued to the staff delegation that NDI was operating without a license, had no legal right to be operating in UAE, and was writing things that weren't true.

NDI Middle East Director Les Campbell said last week that his organization has no programs in the UAE, and the office "was simply a regional hub which supported programmes in places like Qatar and Kuwait."

The congressional staffers pressed the UAE officials to comment on the rumors that the UAE government was acting on behalf of the Saudi government, which is said to object to NDI's programs for Saudi women. But the UAE officials denied any knowledge of Saudi interference or pressure to the congressional staffers.

The staffer also said U.S. Ambassador to the UAE Michael Corbin downplayed the UAE government's actions in his meeting with the congressional delegation.

"Even more troublesome was [the U.S.] ambassador's statement in response to questions we raised about the shutdown in a meeting on Tuesday. He essentially suggested that it wasn't that big of a deal since NDI doesn't do any work in the UAE," the staffer said. "Moreover, he seemed to sympathize with their concerns given the changing situation in the Middle East and he characterized work that organizations like NDI do as `fomenting' political change."

Officials at NDI's Washington office and the UAE embassy in Washington declined to comment.

from the Associated Press, 2012-Apr-24, by Aya Batrawy:

Egypt comedian found guilty of offending Islam

An Egyptian court on Tuesday upheld a conviction against one of the Arab world's most famous comedians, sentencing him to jail for offending Islam in some of his most popular films.

CAIRO — An Egyptian court on Tuesday upheld a conviction against one of the Arab world's most famous comedians, sentencing him to jail for offending Islam in some of his most popular films.

The case against Adel Imam and others like it have raised concerns among some Egyptians that ultraconservative Muslims who made gains in recent elections after Hosni Mubarak's ouster last year are trying to foist their religious views on the entire country. Critics say the trend threatens to curb Egypt's vibrant film industry and freedom of speech.

Imam was sentenced to three months in jail and fined around $170 for insulting Islam in roles he played in movies such as "The Terrorist", in which he acted the role of a wanted terrorist who found refuge with a middle class, moderate family, and the film "Terrorism and Kabab. "

The actor was also found guilty for his 2007 role in "Morgan Ahmed Morgan," in which Imam played a corrupt businessman who tries to buy a university diploma. The film included a scene parodying bearded Muslim men wearing traditional Islamic clothing.

Author Alaa al-Aswany, whose best-seller "The Yacoubian Building" was turned into a film costarring Imam, said the court ruling sets Egypt back to the "darkness of the Middle Ages."

"This is an unimaginable crime of principle in developed nations," he said in remarks posted on his Twitter account Tuesday.

The case is one of many brought by conservative lawyers in recent months seeking to punish individuals they deem as having offended Islam. Earlier this year, two courts rejected blasphemy cases against Christian media mogul, Naguib Sawiris, after he relayed a cartoon online of Mickey Mouse with a beard and Minnie in a face veil.

The cases highlight the newfound sense of empowerment among followers of the ultraconservative Salafi trend of Islam in Egypt after Mubarak was toppled in a popular uprising. Their newly formed Al-Nour party won 25 percent of seats in parliament, emerging as the second most powerful group in Egypt after the more moderate Muslim Brotherhood.

The mere filing of such blasphemy cases by Salafi lawyers has raised concern among rights groups and liberals about attempts to curb freedom of speech.

Egyptian entertainment reporter Tarek el-Shinnawi said the case against Imam is a setback for Cairo's famed film industry, which has produced the region's most popular films.

"It will make any writer, director or actor think before considering the role of a Muslim figure," el-Shinnawi said.

Imam was initially found guilty in February in a case brought by an ultraconservative Islamist lawyer. He was given a retrial since he was first tried in absentia. He did not appear in court Tuesday but his lawyers did. Imam has the right to appeal.

Under Mubarak, government censors controlled what could be shown in theaters or filmed by major studios. The films Imam starred in were approved by the censors.

El-Shinnawi argued that a legally sound case would involve the writers and directors, and the censors who approved the movies, not just the star of the films.

Imam, 71, has acted in dozens of films in a career that spans nearly 50 years.

Long a beloved figured in Egypt, Imam lost popularity among Egyptian protesters for supporting Mubarak during last year's 18-day revolt.

In one of his most popular roles, Imam played an Arab dictator in a 1998 satirical play called el-Zaeem. The play has since been aired on satellite television across the Arab world, bypassing state censors and gaining popularity through its comedic take of a tyrannical figure.

from TorrentFreak.com, 2012-Mar-24:

Microsoft Censors Pirate Bay Links in Windows Live Messenger

The Pirate Bay is not only the most visited BitTorrent site on the Internet, but arguably the most censored too. Many ISPs have been ordered to block their customers' access to the website, and recently Microsoft joined in on the action by stopping people sharing its location with others. Microsoft's Windows Live Messenger (MSN) now refuses to pass on links to The Pirate Bay website, claiming they are unsafe.

windows pirate logoImagine that you found this great new band sharing their music on BitTorrent for free.

You're actually so excited about this find you want to share the experience with friends, so you paste them a link to the official torrent file via Windows Live Messenger.

Although this might sound like a good idea to some, Microsoft appears to disagree. Those who try to paste a Pirate Bay link to their friends through Windows Live Messenger will notice that it never reaches its destination.

Instead, Microsoft alerts the sender that The Pirate Bay is unsafe. Apparently, the company is actively monitoring people's communications to prevent them from linking to sites they deem to be a threat.

Censored

picture of blocked url in windows live

The same happens in other chat clients such as Pidgin when using a Windows Live Messenger account.

Censored

blocked by pidgin

Whatever Microsoft's reason for monitoring private conversations and then swallowing Pirate Bay links, the Redmond-based company's censorship policies are not very consistent. All of the other large BitTorrent sites remain unaffected, even though they offer content that's identical to The Pirate Bay.

While it's not clear whether the above is related to copyright concerns, censorship is indisputably an up-and-coming tool to protect the interests of the entertainment industries. Taking away your freedom of speech one link at a time.

TorrentFreak attempted to contact Microsoft for a comment on the issue, but we have yet to hear back.

from the Huffington Post, 2012-Mar-9, by Edward J. Black:

UN's ITU Could Become Next Internet Freedom Threat

Internet freedom is again under fire for ostensibly noble reasons. After a narrow escape from Congress's SOPA legislation, Internet freedom is in the international crosshairs of a large group of nations, including many of the world's most undemocratic governments, seeking to give themselves control over Internet policy. Their target is the creation of new international legal rules that would allow them to legitimately impose censorship and monitor users' online activities.

The Internet's ability to empower people is feared by undemocratic countries. It's even a challenge for the governments of democratic countries to resist the temptation to tinker with Internet fixes for various social causes.

Sometimes the reasons for interference with users' activities spring from defendable intentions: stopping crime or blatant copyright abuse as we saw with SOPA. Internet openness would have been collateral damage if Congress had passed that legislation, which would have required U.S. companies to create privatized Internet censorship regimes in hopes of reducing copyright infringement.

However, once filtering, censorship or traffic redirecting tools are developed and deployed, they can be used for a variety of reasons -- not just for the purposes that first got the regulations enacted. Some of the lessons learned from the dangers of legislation like SOPA should be the need for forbearance and a well-researched, multi-stakeholder derived policy to avoid unintended consequences.

We've been concerned about similar efforts that could result in a treaty giving a United Nations agency new power to "manage" the Internet. Russia, along with China, North Korea, Iran and other notably nondemocratic countries, are advocating for international regulation of the Internet through a treaty-based organization in the United Nations -- the International Telecommunications Union (ITU).

These countries are also asking for a "cyber arms control treaty." But the real goal is to give governments the international legal cover to declare information they don't like a "danger to the state" and therefore the equivalent of cyber warfare so they can censor it. An article in the World Affairs Journal outlines Russia's patient, organized effort over more than a decade.

The article warns, "If diplomats are not careful, one by-product of a push to regulate state-on-state cyber conflict could be a new effort to subject Internet activity to political scrutiny." It points to the efforts at the ITU as a telling example of this trend.

These countries have also pushed this agenda in other venues:
• Suggesting at the UN General Assembly in 2011 that a code of conduct for Internet use should be mandated in international law (and conveniently giving the governments of the world the right to determine what is outside the limits of the code);
• Proposing to create a new UN agency that would be a 'super agency' responsible for managing all aspects of Internet policy -- with, naturally, governments having the only vote.

There are warning signs that 2012 is lining up to be particularly important in this fight.

Russian Prime Minister Vladimir Putin met last year with the head of the ITU and said "international control over the Internet" is critical.

As officials plan for a major ITU conference, the World Conference on International Telecommunications (WCIT), countries like China and Russia plan to try to significantly expand the authority of the ITU, according to former U.S. Ambassador David Gross.

Russia, China and their partners are expected to use this conference intended to renegotiate the ITU's telecommunications regulations to expand its mandate to regulate the Internet. To succeed, they need a majority of the 193 member states to agree. The proposals could dramatically change everything from access and affordability of the Internet to oversight by the ITU -- and therefore governments -- of ICANN, the IETF and other organizations responsible for elements of the Internet's architecture. Unlike the ITU, these organizations use a multi-stakeholder approach where all voices are a part of the process of decision-making -- but none control the others.

As FCC Commissioner Robert McDowell pointed out in his Wall Street Journal editorial last month, proponents of Internet freedom need to play offense not just defense by encouraging all interested parties, including governments and the ITU, to examine the economic and social benefits of the open Internet and to broaden the multi-stakeholder approach to managing Internet concerns.

The SOPA/PIPA battle that roused Internet users to the threats to this critical communications tool and awakened politicians to the power of Internet users is a small, though significant part of the growing Internet freedom war. The stakes are high. The outcome of these upcoming negotiations in Geneva, will affect every Internet users' access to information and ultimately the relationship every government has with those they govern.

CCIA has been engaged in this fight for years, on the ground, alongside other companies and NGOs. Those who value Internet freedom around the world need to spread the word and encourage their country to reject upcoming pressure to alter international regulations to control the Internet and its users.

from the Register (UK), 2012-Mar-11, by Richard Chirgwin:

US withdraws IANA RFP, `no suitable responses'
ICANN manages to lose a one-horse race

The Internet's rent-seeking domain name toll-collector ICANN is red-faced following the cancellation of an IANA (Internet Assigned Names and Numbers) RFP from the Department of Commerce.

The RFP (request for proposals) cancellation, reported on CircleID, happened because, according to the National Telecommunications and Information Administration, “we received no proposals that met the requirements requested by the global community”.

The cancellation means that not even ICANN (the Internet Corporation for Assigned Names and Numbers), whose 14-year-old self-serving monopoly experience operating the Internet's naming system has been refined over 14 years, could meet the RFP's requirements. The RFP will now be re-run, with ICANN's contract extended for six months during the process.

Some of those requirements, according to the NTIA's notice issued on March 10, included “the separation of policymaking from implementation, a robust companywide conflict of interest policy, provisions reflecting heightened respect for local company laws, and a series of consultation and reporting requirements to increase transparency and accountability to the international community”.

ICANN has been under growing criticism over key policy decisions; in particular, the processes that make both the .xxx domain and the creation of gTLD “brand” domains look like nothing more than protection rackets designed to extract cash from brand owners either fearful of having their brands polluted by smut-peddlers or squatted by bigger companies.

In entirely coincidental news, the day after the RFP debacle emerged, ICANN announced that it is “seeking expressions of interest for a review of its accountability mechanisms”. It wants to create a committee of “independent experts” to review both its Reconsideration Process and its Independent Review Process.

from Computerworld Kenya via PC Advisor, 2012-Mar-14, by Rebecca Wanjiku:

Domain seizures for copyright infringement likely to go global
Law enforement officials urge ICANN to take steps to ensure compliance with international agreements

Efforts to take down websites for copyright infringement are likely to move beyond U.S.-based registries, with ICANN (the Internet Corporation for Assigned Names and Numbers) promising to more closely cooperate with global law enforcement agencies and governments.

Cooperation to combat copyright infringement has been a hot topic this week at ICANN's international meeting in San José, Costa Rica. There are 22 registries and over 700 registrars accredited by ICANN. Registries contain domain names registered in a top-level domain, while registrars sell domains.

Any domain under a U.S. registry must follow U.S. laws regardless of where the servers are, according to agreements currently in place. The seizure of domains deemed to infringe on copyrights was first carried out by Verisign, the operator of the registry for .net and .com.

During an open session with the Government Advisory Committee (GAC), the ICANN board confirmed that it will enforce its contracts with registrars more effectively in order to meet expectations from governments and law enforcement authorities. The expectations were contained in a 12- page document submitted by the GAC, which also includes representatives from national law enforcement agencies as well as Interpol.

"There has been some agreement on 11 of the 12 recommendations made by law enforcement authorities to the registrar accreditation agreement; we will work to ensure agreement meets expectations and give registrars the incentive to accept recommendations right away," said Kurt Pritz, ICANN senior vice president in charge of stakeholder relations.

Representatives from governments, Interpol and the U.S. Federal Bureau of Investigationsaid they felt that ICANN's failure to enforce its own contractual agreements was damaging to Domain Name System users as well as end users.

Some of the 12 recommendations relating to registrar agreements was inclusion of a clause that holds registrars responsible through negligence for registering domains engaging in criminal activity. Another recommendation is for registrars to maintain detailed information of domain buyers, including their source IP addresses and transaction information, and validate the contact information given by domain buyers.

Law enforcement officials have also urged ICANN to review registrars' compliance record with enforcement agreements prior to renewing their contracts.

"Complaints on compliance started coming in the last six to nine months, a team of 12 is now in place and will improve the quality of service," said Rod Beckstrom, ICANN CEO and president.

from National Review Online, 2012-Mar-15, by Glenn T. Stanton:

Free Speech: Only for Those Who Agree

The organization GLAAD, which is committed to making sure no one in any media venue ever says anything untoward about homosexuality, has launched a new campaign aimed at a number of my friends and colleagues, as well as myself.

They do not like that media channels have asked any of us about our views on anything having to do with homosexuality and that our answers do not line up with GLAAD orthodoxy. Therefore, they believe we should be silenced. They say their effort is only to hold commentators like us “accountable” for what we say, but nowhere on their site do they try to correct or refute anything that any of us has said.

Most of the comments by the folks they are targeting are just plain, everyday views that many good citizens hold about homosexuality and so-called same-sex marriage. GLAAD is upset that people would say such things out loud and any media source — liberal, conservative, mainstream, Christian, Jewish, whatever — might print them. Read their “smoking-gun” evidence listed under each targeted spokesperson for yourself and see how many of them are really a threat to civil society. A few might not demonstrate the smartest reasoning in the world, but if we ban all unrefined quotes in the media . . .

Most serve to demonstrate GLAAD's unreasonableness. They take Jim Daly, my boss and president of Focus on the Family, to task for having the audacity to say some gay activists want to limit the speech of others. And yes, he did say it.

“Unfortunately, this is becoming a pattern for those that oppose Christianity. They want to control our speech in the public square. . . . It really is a form of fascism.”

Imagine. Doubtful GLAAD fully appreciates the irony of their selection of this quote.

from the Wall Street Journal's Best of the Web, 2012-Mar-12, by James Taranto:

That 70s Show
Elderly feminists try to turn back the clock.

When this column observed last month that contemporary feminism is a totalitarian ideology, we drew a bit of mockery from certain quarters on the left. Yet as if to illustrate our point, three prominent septuagenarian feminists--Jane Fonda, Robin Morgan and Gloria Steinem, co-founders of the Women's Media Center--joined forces over the weekend to demand the suppression of speech they dislike.

Specifically, they called on the the Federal Communications Commission to silence Rush Limbaugh using its regulatory power. "For 20 years, Limbaugh has hidden behind the First Amendment," they complain in a CNN.com op-ed:

Limbaugh doesn't just call people names. He promotes language that deliberately dehumanizes his targets. Like the sophisticated propagandist Josef Goebbels, he creates rhetorical frames--and the bigger the lie, the more effective--inciting listeners to view people they disagree with as sub-humans. His longtime favorite term for women, "femi-Nazi," doesn't even raise eyebrows anymore, an example of how rhetoric spreads when unchallenged by coarsened cultural norms.

We suppose we should mention that we don't care for Limbaugh's term "feminazi" either. While there's no denying its euphony--and euphony counts for a lot in radio--feminism is fundamentally different from National Socialism in that the latter is based on a theory of racial supremacy while the former is based on a false theory of equality. If only there were a catchy portmanteau of "feminism" and "Gramsci."

That said, you have to marvel at Fonda, Morgan and Steinem's chutzpah in comparing Limbaugh to Goebbels and then, in the very next sentence, denouncing him for using a Nazi analogy. The technical term for this sort of thing is "comedy gold."

A deeper irony is that in calling on the FCC to shut Limbaugh down, the troika are actually looking to turn back the clock by at least 40 years. "Are the stations carrying Limbaugh's show in fact using their licenses 'in the public interest'?" they ask. "Spectrum is a scarce government resource. Radio broadcasters are obligated to act in the public interest and serve their respective communities of license."

The scarcity of radio bandwidth provided the U.S. Supreme Court with its rationale for upholding the so-called Fairness Doctrine in Red Lion v. FCC (1969). The doctrine's intent was to ensure a balance of opinion on broadcast radio and television, but its effect was to impose blandness, as broadcasters shunned controversy so as to avoid regulatory complications.

The FCC abolished the Fairness Doctrine less than 20 years later, and the explosion in conservative talk radio followed. Liberals have tried to mimic the success of Limbaugh and his compatriots, but their audience turned out to prefer NPR to Air America. Meanwhile the scarcity argument carries even less force today than it did in the 1980s, what with the growth of cable, satellite and Internet transmission. (CNN, for whose website the trio wrote this piece, launched 32 years ago this June.)

Even in Red Lion, the Supreme Court acknowledged that the FCC did not have the power to censor broadcasts directly:

There is no question here of the Commission's refusal to permit the broadcaster to carry a particular program or to publish his own views; of a discriminatory refusal to require the licensee to broadcast certain views which have been denied access to the airwaves; of government censorship of a particular program . . .; or of the official government view dominating public broadcasting. Such questions would raise more serious First Amendment issues.

Meanwhile, Politico reports that Gloria Allred, another 70-something feminist, wants to turn back the clock even further. On behalf of the Women's Equal Rights Legal Defense and Education Fund, Allred has written a letter to Michael McAuliffe, the chief state prosecutor for Palm Beach County, Fla., asking him to prosecute Limbaugh for defamation.

At issue, of course, are Limbaugh's comments about Sandra Fluke, the young political activist whom Democrats have used as a symbol for the ObamaCare mandate that religious organizations provide their employees with insurance for contraceptives, abortifacient drugs and sterilization procedures. Allred believes Limbaugh violated a Florida statute that provides: "Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree."

For the purpose of this analysis, let's assume that Limbaugh did in fact "impute" to Fluke "a want of chastity." A successful prosecution would still require reversing important 14th Amendment and First Amendment precedents going back almost 50 years.

As blogger Aaron Worthing notes, the statute is facially unconstitutional under the 14th Amendment's Equal Protection Clause because it criminalizes defamation of women and not men. As Justice Sandra Day O'Connor wrote in Mississippi University for Women v. Hogan (1982):

The test for determining the validity of a gender-based classification . . . must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or "protect" members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.

A sex-neutral law barring false accusations of improper sexual conduct would meet this test, but it might also have a chilling effect on some of Allred's clients.

The First Amendment also poses an insurmountable obstacle to a Limbaugh prosecution. While criminal defamation statutes are not in themselves unconstitutional, they do have to be enforced consistent with New York Times v. Sullivan (1964) and subsequent cases. Since Fluke is a public figure, that means prosecutors would have to show that Limbaugh's comments were made not just with ill intent but with "actual malice"--either knowledge that they were false or reckless disregard for whether or not they were true. Fluke's testimony that she is a single woman in need of birth control would seem to provide Limbaugh with an airtight defense.

Even if one could go back in time to 1962 and try Limbaugh under the legal precedents that prevailed then, Allred's proposed prosecution would effectively put Fluke on trial. Criminal prosecutors must meet a higher standard of evidence than civil plaintiffs in order to win a case. In this instance they would have to prove beyond a reasonable doubt that Limbaugh's imputation of "a want of chastity" was false--or, to put it another way, that Fluke is, in fact, chaste.

One expects that Allred would regard such an inquiry as a repugnant intrusion into Fluke's private life. Indeed, it seems fair to say that such repugnance lies behind her desire to prosecute Limbaugh for his comments. But like the CNN trio with their Nazi analogy, Allred is trying to have it both ways. She wants to use criminal law to enforce standards of gentlemanly behavior while rejecting any reciprocal obligation for women to act ladylike. Thus feminism's theory of equality between the sexes dissolves into incoherence in the face of real life.

Speaking of incoherence, a group called Liberal Ladies Who Lunch, inspired by Aristophanes' play "Lysistrata," last week announced that it "has launched a movement, the 'NO ACCESS SEX STRIKE' to encourage women to cut off sex to their male partners for one week, April 28-May 5, 2012, to make their point":

"Access to affordable family planning is key to a woman's liberty," says Annette Maxberry-Carrara, the founder of Liberal Ladies Who Lunch. "But this is also an important issue for men. American men enjoy the benefits of women making their own choices about when to get pregnant. Men get the advantage of free, easy access sex with young women of child-bearing age. It wasn't like that sixty years ago. If women can't get reliable birth control, they will just have to keep their legs crossed to prevent pregnancy--even married women. I don't think anyone wants that."

The ladies in "Lysistrata" were seeking to end a war, so what exactly is the objective of this "strike"? "Once congress [sic] and insurance agencies agree to cover contraception, we will then resume having sex," according to SexStrike.org. The Ladies who Lunch are demanding something the government has already decreed. They might as well declare victory and go home.

But ponder this revealing yet very sad quote from Maxberry-Carrara: "Men get the advantage of free, easy access sex with young women of child-bearing age." It's a false analogy: Whereas the ObamaCare mandate creates an entitlement to birth control, no man is entitled to "easy access sex." That requires consent.

It is true, however, that contemporary feminism is a sweet deal for hedonistic men who have the social skills to persuade "young women of child-bearing age" to consent to "easy access sex." When you look at it that way, you can understand why feminism's grandes dames are so keen to turn back the clock.

from ArsTechnica.com, 2012-Feb-16, by Nate Anderson:

Takedowns run amok? The strange Secret Service/GoDaddy assault on JotForm (updated)

Popular site JotForm doesn't host music or movies or child pornography, all of which have led US Immigration and Customs Enforcement (ICE) to seize other Internet domain names without advance warning (sometimes making serious mistakes). JotForm also doesn't create content itself. Instead, it helps customers create online forms that can then be embedded in their websites for easy data collection.

But that didn't spare the site from having its entire business shuttered without warning yesterday as the site's domain name was shut down at the request of the US Secret Service. JotForm's domain name registrar, GoDaddy, redirected the site's nameservers to NS1.SUSPENDED-FOR.SPAM-AND-ABUSE.COM—and with that, JotForm.com became unreachable and the site's two million user-created forms all broke.

And it all may have been done without a court order.

When he saw his site was down, JotForm cofounder Aytekin Tank scrambled. He checked in with GoDaddy, which told him that the site had been suspended as part of an ongoing investigation.

GoDaddy has long supported authorities who have concerns about the websites and domains it hosts. In Congressional testimony last year, the company's general counsel Christine Jones noted that "Our staff routinely works with courts and law enforcement from the local to international level to shut down domain names and websites through which infringers and counterfeiters operate. Any time we are notified by a court or a federal or state prosecutor that there is criminally infringing material on our systems, we work rapidly to disable access to that material."

Note the two criteria: a court order or a notification from a prosecutor. That latter category amounts to an unproven allegation—and it's what Tank believes derailed him here. "No, as far as I know, there is no judge order," he told me. "They sent a request to GoDaddy and GoDaddy complied."

But GoDaddy won't say publicly whether the takedown was voluntary or compulsory. When I asked, the company's Director of Network Abuse, Ben Butler, told me that his office complies with "orders from courts, as well as confirmed official requests from law enforcement agencies," but he wouldn't get into specifics in this case.

"We can tell you in general terms, at the specific request of law enforcement, Go Daddy sometimes takes action to prevent further harm being caused by a website hosted on our servers," he added. "This would include things like sites engaged in phishing, malware installation, securities fraud, and so on."

Butler's office acted on whatever request was received and shut down the site's domain, but he did pass the requesting agent's contact info along to JotForm so that the company could work to resolve the issue. According to a copy of an e-mail seen by Ars Technica, GoDaddy told JotForm that "the domain name was suspended as part of an ongoing law enforcement investigation" and that Tank should contact a special agent at the US Secret Service.

Tank, desperate to find out what had happened, called her.

"The agent told me she is busy and she asked for my phone number, and told me they will get back to me within this week," he wrote in an explanation post on Hacker News. "I told them we are a Web service with hundreds of thousands of users, so this is a matter of urgency, and we are ready to cooperate fully. I was ready to shutdown any form they request and provide any information we have about the user. Unfortunately, she told me she needs to look at the case which she can do in a few days. I called her many times again to check about the case, but she seems to be getting irritated with me."

A Secret Service spokesperson had no public comment when reached by Ars Technica, but he promised to look into the episode. No further information was available by publication time.

Caught by a phish-hook?

Though unsure of what the case was even about, Tank suspected a phishing form—something that JotForm has dealt with for quite some time. The company says it runs a Bayesian phishing filter to identity and block accounts being used to harvest various kinds of user information, and that it suspended 65,000 such accounts last year alone.

Such phishing attacks have been ongoing in recent weeks. Perusing the JotForm support forums turns up comments such as this one from the RSA Anti-Fraud Command Center. RSA says that it has "been appointed to assist [South Africa's] Standard Bank in preventing or terminating online activity that targets, or may target Standard Bank’s clients as potential fraud victims" and that "it appears the form service you provide is being used in a phishing attack."

The shutdown of his entire domain, without notice, for something a user had done even after protections were in place against it, seemed hugely unfair to Tank; he made his public case in terms that would also apply to other user-generated sites like YouTube. "We have 2 millions user generated forms," he wrote. "It is not possible for us to manually review all forms. This can happen to any Web site that allows user-generated content."

The first priority for JotForm was restoring some kind of access. Tank decided to migrate everything to jotform.net and make that site live instead. This wouldn't fix anything automatically—existing Javascript that pointed to jotform.com would continue to fail—but site operators who needed the forms could manually tweak their embedding code to point to jotform.net instead. For customers with hundreds of forms, this could take a while.

"When they have suspended jotform.com, and told us that it might take a few days to even take a look into the case, we had to do something to keep our users' forms alive," Tank told me.

"We have 700,000 users and 2,000,000 user-generated forms on our site. So, we had to make jotform.net live and email our users so that their forms will keep working. They have not provided any information about the content they would like us to disable, and we cannot keep 2,000,000 forms down for a few days. They don't seem to care about our concerns or about our customers."

The government also didn't seem to care that a new site with the exact same content was also live on the Internet under a different name; jotform.net remains active.

As for the impact on JotForm's business, Tank doesn't yet know what it will be. "Many users were unhappy and lost trust in us," he added. "We might lose many of our customers. It is hard to say at this point."

Customers blasted the site. "Jotform sucks. Always some sort of problem. I will never again use or recommend Jotform. Already cancelled my subscription and will tell my friend to do so as well," one wrote.

"We are a multimillion dollar Canadian company that has used jotform the last year for customer inquires," said another. "They have been very reliable. However because of what has happened now we will have to implement an internally hosted solution to guarantee this will not happen again and ensure we will not loose [sic] our data. I will now have to question purchasing any more services from US internet related providers."

Numerous commenters blamed the company for using GoDaddy as a registrar. "This is what you get for finically [sic] supporting a domain registrar which has a history of extrajudicial and unjustifiable actions like this," wrote another. "Idiots."

JotForm today moved its domains away from GoDaddy to registrars NameCheap and Hover. Tank still doesn't know why his domain was suspended or when it might be returned; however, a WHOIS search this afternoon revealed that GoDaddy has at last removed the domain from its penalty box.

Not that anyone bothered to tell him this.

"Yes, the site seems to be back now. This made us very happy!" he wrote me by e-mail. "We have been working for the last two days to restore our service for our customers. They have not provided any details. I just found it out from you. Thank you for the great news!"

Update: Secret Service spokesman Brian Leary has confirmed to Ars that, after further investigation, his agency is indeed involved in the JotForm case. The Secret Service has also launched an internal review to "make sure all our policies and procedures were followed" in the matter, he added. He could not comment on any other issues surrounding the case, including whether a court order had been obtained.

from the Hollywood Reporter, 2012-Feb-2, by Stewart Baker:

The SOPA War: Why the GOP Turned on Piracy

For Republicans, opposition to intellectual property laws is starting to look like a political winner, and that should terrify Hollywood as it misreads where the pop-culture power base now lies. The entertainment industry has lost the fight over SOPA, its legislative proposal for stopping Internet piracy. Now some want to try again with a revamped bill and a bigger push. But the same approach could stunt Hollywood's clout in Washington. That's because the industry still doesn't understand its adversary. From the start, studios saw the fight over SOPA as a struggle with a bunch of other companies -- Google and Internet service providers among them -- that were hoping to profit from the Internet travails of the entertainment industry. That turned out to be wrong. In fact, the industry is fighting what amounts to a new popular culture. Unlike the old pop culture Hollywood dominated, this one is largely independent of the music, movie and broadcast industries. In fact, people who spend hours online instead of watching TV or going to movies will probably encounter the entertainment industry only when YouTube videos of their kids dancing to Prince or spoofing Star Wars are pulled down by Hollywood's bots, or when the RIAA threatens to sue them for their college savings, or when digital rights software makes it hard to move their stuff to a new tablet or phone. To the entertainment industry, these episodes might seem like collateral damage in the fight to stop piracy. To the new pop culture, though, collateral damage and misuse of enforcement tools are everywhere, and they threaten everyone. The content industry has made itself into the villain. Increasingly, it looks like an occupying power, obeyed at gunpoint, despised for its ham-handed excesses and resisted from every dark corner. Unfortunately for Hollywood, as its customers migrate to the Internet, it is losing not just their money but their hearts and minds as well. The industry's miscalculation about the source of resistance to SOPA might have led to an even bigger mistake. As long as the campaign for better IP enforcement was an inside-the-beltway, company-versus-company struggle, it could be fought within the Congressional judiciary committees, where Republican and Democratic politicians were wooed and won as individuals. As a result, strengthening intellectual property enforcement has been a bipartisan issue for the past 25 years. But when the fight went from the committees to the floor and Wikipedia went down, every member of Congress was expected to take a stand. The two parties reacted very differently. Despite widespread opposition to SOPA from bloggers on the left, Democrats in Congress (and the administration) were reluctant to oppose the bill outright. The MPAA was not shy about reminding them that Hollywood has been a reliable source of funding for Democratic candidates, and that it would not tolerate defections. But that very public message also reached another audience: Tea Party conservatives. Most of them had never given a second thought to intellectual property enforcement, but many had drawn support from conservative bloggers. They began to ask why they should risk the ire of their Internet supporters to rescue an industry that was happily advertising how much it hated them. Pretty soon, far more Republicans than Democrats had bailed on SOPA, and the Republican presidential candidates had all come out for what they called "Internet freedom." That's what really ought to worry the entertainment industry. For Republicans, opposition to new intellectual property enforcement is starting to look like a political winner. It pleases conservative bloggers, appeals to young swing voters, stokes the culture wars and drives a wedge between two Democratic constituencies, Hollywood and Silicon Valley. We've seen this movie before. Immigration reform, the DREAM Act, free-trade agreements and the USA Patriot Act all commanded impressive bipartisan support -- for a while. Now, not so much. Bills on these topics still come to the floor, and they sometimes even pass, but only after endless partisan point-scoring and amendments driven by talk radio and mass e-mail. The same soon could be true of intellectual property enforcement. SOPA has pushed a generation of Republicans into choosing sides between Hollywood and the Internet. They might never look back. Stewart Baker, a former government official under President George W. Bush, practices security and technology law in Washington D.C. He is the author of Skating on Stilts: Why We Aren't Stopping Tomorrow's Terrorism.

from the Stonegate Institute via the Jerusalem Post, 2012-Feb-7, by Khaled Abu Toameh:

PA: Write only nice things about your leaders on Facebook
Palestinian Authority security forces monitor social media giant; say criticism should be directed against Israel.

Facebook has become a dangerous playground for Palestinians living under the Palestinian Authority in the West Bank.

The US-backed Palestinian Authority security forces belonging to Mahmoud Abbas and Salam Fayyad have been monitoring the activities of Palestinians on Facebook to make sure that no one criticizes them.

The Palestinian Authority wants Palestinians to write only nice things about their leaders. Criticism should be directed only against Israel. Those who fail to toe the line will find themselves either behind bars or without work.

The Palestinian leaders are aware of the power of social networking, especially in light of what happened in Tunisia, Egypt, Libya and Syria.

The Palestinian leadership's clampdown on Facebook users is seen as a pre-emptive measure to prevent the "Arab Spring" from infiltrating into the West Bank.

Rami Samara, a Palestinian journalist from Ramallah, last week found himself under interrogation by two different security agencies in the West Bank: Military Intelligence and General Intelligence.

Samara was detained while at work in the offices of the PLO's official news agency, Wafa. His crime: a comment he posted on his Facebook page.

The comment was about a statement issued by the PLO executive committee holding Israel responsible for the failure of the recent Israeli-Palestinian talks in Jordan.

Samara wrote in his sarcastic comment: "Ok, no joking now, do the members of the 'sole legitimate leadership of the Palestinian people' believe that this announcement is worth their sitting in their seats, turning on the heaters and drinking coffee and tea in their offices in Ramallah?"

The journalist said he was interrogated separately by the two intelligence forces in Ramallah about the comment and his activities on the social networking site. He was released a few hours later following strong protests by other journalists and human rights organizations.

Samara is the second Palestinian journalist to be targeted by security forces loyal to Abbas and Fayyad because of Facebook.

About a year ago, Mamdouh Hamarneh, a TV producer from Bethlehem, was detained for 50 days after comparing Abbas on Facebook to a Syrian actor who portrayed a "traitor" in a popular Syrian soap opera.

This week, a Palestinian woman complained that she too had been summoned for interrogation because of a comment she had posted on her Facebook page. She said she was interrogated by another security agency - Preventive Security - which also belongs to Abbas and Fayyad.

Because of the crackdown on Facebook users, many Palestinians in the West Bank today think twice before they post a comment that could anger the Palestinian leadership in Ramallah.

from the Guardian of London, 2012-Feb-10, by Owen Bowcott:

Interpol accused after journalist arrested over Muhammad tweet
Saudi Arabia used Interpol's system to get journalist arrested in Malaysia for insulting the Prophet Muhammad on Twitter

Interpol has been accused of abusing its powers after Saudi Arabia used the organisation's red notice system to get a journalist arrested in Malaysia for insulting the Prophet Muhammad.

Police in Kuala Lumpur said Hamza Kashgari, 23, was detained at the airport "following a request made to us by Interpol" the international police cooperation agency, on behalf of the Saudi authorities.

Kashgari, a newspaper columnist, fled Saudi Arabia after posting a tweet on the prophet's birthday that sparked more than 30,000 responses and several death threats. The posting, which was later deleted, read: "I have loved things about you and I have hated things about you and there is a lot I don't understand about you … I will not pray for you."

More than 13,000 people joined a Facebook page titled "The Saudi People Demand the Execution of Hamza Kashgari".

Clerics in Saudi Arabia called for him to be charged with apostasy, a religious offence punishable by death. Reports suggest that the Malaysian authorities intend to return him to his native country.

Kashgari's detention has triggered criticism by human rights groups of Malaysia's decision to arrest the journalist and of Interpol's cooperation in the process.

Jago Russell, the chief executive of the British charity Fair Trials International, which has campaigned against the blanket enforcement of Interpol red notices, said: "Interpol should be playing no part in Saudi Arabia's pursuit of Hamza Kashgari, however unwise his comments on Twitter.

"If an Interpol red notice is the reason for his arrest and detention it would be a serious abuse of this powerful international body that is supposed to respect basic human rights (including to peaceful free speech) and to be barred from any involvement in religious or political cases."

He called on Interpol to stand by its obligations to fundamental human rights and "to comply with its obligation not to play any part in this case, which is clearly of a religious nature".

Interpol, which has 190 member countries, has a series of coloured notice systems that police forces around the world use to pass on requests for help. Contacted at its headquarters in Lyon, France, the organisation did not immediately reply to requests for comment on the Kashgari case.

In response to past criticisms of the red notice system, it has said: "There are safeguards in place. The subject of a red notice can challenge it through an independent body, the commission for the control of Interpol's files (CCF)."

Last year Interpol was accused by Fair Trials International of allowing the system to be abused for political purposes when it issued a red notice for the arrest of the Oxford-based leader of an Asian separatist movement, Benny Wenda, who has been granted asylum and has lived in the UK since 2003.

from the Christian Science Monitor online, 2012-Feb-10, by Curt Hopkins:

Malaysia may repatriate Saudi who faces death penalty for tweets

Saudi writer Hamza Kashgari fled Saudi Arabia after a trio of tweets about the prophet Muhammad brought death threats. Malaysian police apprehended him en route to New Zealand, where he was to request asylum.

A 23-year-old Saudi Twitter user, Hamza Kashgari, fled the country Sunday to avoid being arrested for his religious tweets, only to find himself in the hands of the Malaysian police today. He had been heading to New Zealand to request political asylum.

On Saturday, the anniversary of the prophet Muhammad's birthday, Kashgari tweeted three times, expressing his religious beliefs about the founder of Islam. Within hours, he was inundated with violent threats. Despite a full renunciation, a warrant was issued by kingdom authorities for his arrest and the Kingdom's religious Fatwa Council condemned him as an apostate and an infidel, crimes which are punishable by death.

"Blasphemous" Tweets

According to one of Kashgari's friends, who wishes to remain anonymous, these are the three tweets that were the basis for the Saudi arrest warrant.

• On your birthday, I will say that I have loved the rebel in you, that you've always been a source of inspiration to me, and that I do not like the halos of divinity around you. I shall not pray for you.

• On your birthday, I find you wherever I turn. I will say that I have loved aspects of you, hated others, and could not understand many more.
• On your birthday, I shall not bow to you. I shall not kiss your hand. Rather, I shall shake it as equals do, and smile at you as you smile at me. I shall speak to you as a friend, no more.

Kashgari's Twitter account, @Hmzmz, has been shut down.

Kashgari's friend points out that these actions have come after a number of reversals for religious conservatives in the Wahhabi-influenced state. These include a law allowing women to work as salespeople in public lingerie stores, and the replacement of the head of the religious police with a moderate, who ordered restrictions on how the religious police operate. It also happened within the context of the unrest of the Arab Spring.

Hashtags of shame

Kashgari's harassment is not out of the blue, nor, apparently, based on these tweets alone. He has been the target of religious Twitter users for months. "Public shaming through hashtags is now a common Saudi pressure tactic, especially against public officials and government scandals," said his friend.

A hardcore Saudi cleric used YouTube to post his condemnation of the young man. The cleric, Nasser al-Omar, known as the "weeping cleric" for his tendency to burst into tears at the blasphemy done to the prophet, called for Kashgari to be hauled before a sharia court, according to long-time Saudi blogger, Ahmad al-Omran (Saudi Jeans).

"These people [like Kashgari] should be put to trial in sharia courts. It is known that cursing God and his prophet is apostasy. And the fact that he has repented with cold words will not probably save him in the court." (Al-Omram's translation.)

The punishment for apostasy is death.

Saudi Arabia's information minister has commanded that no one publish any of Kashgari's writings. Prior to this incident, he was a columnist with al-Bilad, a newspaper based in the eastern city of Jeddah.

"I have instructed all newspapers and magazines in the kingdom not to allow him to write any thing and we will take legal measures against him."

Kashgari was trying to make a connecting flight to New Zealand when he was apprehended and arrested yesterday in Malaysia at the Kuala Lumpur airport. It has been reported that Malaysia, an officially Islamic state, will forcibly repatriate Kashgar to Saudi Arabia. Malaysia has no formal extradition agreement with the Kingdom of Saudi Arabia.

Curt Hopkins is a production editor and international reporter for the technology blog site, ReadWriteWeb.com, where this blog originally appeared on Feb. 9.

from Gulf News of Dubai, 2012-Feb-14, by Habib Toumi:

Call to try those who supported Saudi blogger
Malaysian minister defends decision to deport Kashgari

Manama People who encouraged a controversial Saudi columnist facing charges of blasphemy could be summoned by the public prosecutor, a report has said.

"The public prosecutor in Jeddah is filing a lawsuit against Hamza Kashgari on charges of disrespecting God and insulting Prophet Mohammad (PBUH) in his Twitter account," sources told Al Hayat daily.

The sources said that public prosecutor in the Red Sea city of Jeddah was likely to summon people who expressed support or agreed with him on the social network, the daily reported yesterday.

"The public prosecutor, as the attorney for the society, has the right to summon anyone who encouraged the defendant or who is connected to matters that motivated his action," Abdul Aziz Al Zamel, a legal consultant, said, quoted by Al Hayat.

The prosecutor is based in Jeddah, the city where Hamza Kashgari posted his tweets on Prophet Mohammad's (PBUH) birth anniversary before fleeing to Malaysia, the sources said.

According to Saudi daily Arab News, "a number of Saudis have called for the trial of all those who tweeted support for Kashgari, saying they were equally guilty."

Differentiate

"Those who supported the contents of Kashgari's tweets are considered criminal exactly like him," Khalid Abu Rashid, a lawyer and a legal consultant, was quoted as saying. The sentence to be passed on Kashgari should be imposed on his supporters too, he said.

The lawyer, however, said it was important to use the written texts to differentiate between two things in this case.

"If the support was for general principles like freedom of expression, then this is a different matter, but if the support was for the attacks on Allah and His Prophet (PBUH), then the supporters should be tried for apostasy," he said in the report quoting Al Eqtisadiah newspaper.

The Arabic daily said that individual and collective calls were made to the Prosecution and Investigations Commission to try Kashgari and all the bloggers who supported him in his blasphemy.

The 23-year-old columnist was deported on Sunday by the Malaysian authorities who arrested him at Kuala Lumpur International Airport.

On Sunday, a Malaysian daily reported that Kashgari was deported back home hours before his lawyers managed to get a High Court injunction to stop the deportation.

The lawyers, led by R. Kesavan, said that they obtained the injunction at 1:30pm on Sunday, but were told that Kashgari has been put on a plane at 10am.

The injunction was an order to the police, the Home Ministry, as well as the Subang and Kuala Lumpur International Airport immigration authorities to stop Kashgari's deportation, the daily said.

However, Home Minister Hesham Al Deen Hussain yesterday denied the claim, saying that no court order was issued to prevent his repatriation.

"There was no injunction. No court order was given to prevent us from returning him to Saudi," the minister told reporters. "If there was a court order, we would abide by it, but there wasn't, so don't make up stories. We have never failed to obey the justice system," he said, quoted by The Malaysian Insider.

The columnist is a Saudi Arabian national wanted by his home country to be tried in the justice system for his offence, the minister said.

No compromise

"I will not compromise. Do not look at Malaysia as a safe transit... Do not think you can come in and out of Malaysia. He is a foreign national, he is wanted by his own country of origin," he said.

Hussain said allegations made by several parties that the columnist would be killed if he was deported were "illogical."

"Allegations that he would be executed, abused, do not make sense. The country being accused is a dignified country. These are serious allegations against Saudi Arabia," Hussain said, quoted by the daily. The home minister said that there were no requests made by Interpol for Kashgari to be returned to his country of origin.

Deportation decisions are made on a case-by-case basis and not all those apprehended are sent back, Hussain said.

from ThomasHawk.com, 2012-Feb-13, by Thomas Hawk:

Think You Can Sell That Photo of Your Cat on Your Living Room Couch as Stock Photography? Think Again.

I just got an email from Getty Images that I suspect is a mass email to all of their various contributors. In the email Getty is asking for help in identifying our photographs that might contain images of designer furniture. The email states that French courts have found in favor of the Le Corbusier rights-holders against Getty in a case where furniture was in the stock photograph.

Here is the email below with emails redacted:

“Attention all Flickr Collection on Getty Images Contributors!

You may have heard about a recent case (actually more than one case) where Getty Images and some of our photographers have had claims lodged against us in French court for images which include designer furniture, even as a minor part of the image.

This is a serious issue that involves potential liability for you as photographers.

The French courts have found in favor of the Le Corbusier rights-holders who initiated these claims. While we disagree with the decision and we are appealing it, we are very mindful that for now, it is a valid decision. It is critical that you understand that any claim like this one is extremely serious and requires action on your part in order to protect your interests, not just ours. We will continue to fight this decision, but in the meantime we must continue to actively pull content from our site that may be deemed infringing. We simply cannot identify all problematic images as quickly without your active participation. And quick action is vital.

Most importantly, if you believe that any of the images you have uploaded to us might possibly include any designer furniture, please email the Getty Images ID numbers to [email redacted] as soon as possible! The sooner we can identify and remove potentially infringing images the better we can reduce potential legal problems.

We are including links to information and FAQs that give more information on this issue and we strongly request that you read them and study the visual guides included.

You can also read the original Le Corbusier complaint here:

In English

Original in French (clearer photos)

Please note: because we are still engaged in litigation, we are very limited in what comments we can make or questions we can answer. If you do have questions please email [email redacted] especially for any specific images you believe may be a problem.

This is only for images you have on the gettyimages.com site. We cannot answer questions about images you have posted on Flickr or elsewhere.

Thank you for your help and attention to this very important matter.”

from USA Today, 2012-Jan-20, by Byron Acohido, with contributions by Yamiche Alcindor, Roger Yu and Matthew Barakat in McLean, Va.; Kevin Johnson in Washington; Associated Press:

Government takedown of Megaupload leads to new fears

Seattle -- The government takedown of Megaupload, a popular file-sharing site, has stoked simmering fears that hard-line enforcement of copyright infringements could profoundly disrupt Internet commerce.

File sharing has become a major way corporations collaborate with employees and partners and interact with customers. It fuels the sharing of rich content across Internet-connected devices in the home and office and distributed to mobile devices and has emerged as a major component of cloud computing, the delivery of content and services across the Web.

"If legitimate content is housed on the same service that might have infringing content, it gets sucked into this vortex and it's gone," says Dennis Fisher, security blogger at Threatpost.com. "I don't know how much the government or these companies (advocating strict anti-piracy enforcement) have thought this through. I would guess not a lot."

Federal authorities shut down Megaupload.com, one of the world's most popular file-sharing sites, Thursday and accused it of costing copyright holders more than $500 million in lost revenue from pirated films, music and other content.

Four executives arrested in New Zealand appeared Friday in an Auckland courtroom to begin extradition proceedings that could take more than a year. Three others remain at large.

According to New Zealand's Fairfax Media, a defense lawyer raised objections to a media request to photograph the proceedings, but his client, Megaupload chief Kim Dotcom, spoke out, saying he would not object "because we have nothing to hide."

The judge granted the media access, and ruled that Dotcom and the three other suspects would remain in custody until Monday, the next scheduled hearing in the case.

The five-count indictment, which alleges copyright infringement as well as conspiracy to commit money laundering and racketeering, described a site designed specifically to reward users who uploaded pirated content for sharing, and turned a blind eye to requests from copyright holders to remove copyright-protected files.

It was unsealed a day after technology companies staged an online blackout to protest two related bills in Congress that would crack down on sites that use copyrighted materials and sell counterfeit goods. Congressional leaders agreed Friday to indefinitely delay action on those bills — Stop Online Priacy Act in the House and Protect IP Act in the Senate.

Critics contend SOPA and PIPA don't so much protect the rights of filmmakers, musicians, writers and artists as they do preserve an antiquated film and music distribution system.

"No law passed in the U.S. is going to have any real effect on whether people steal movies, music and books. That ship has sailed," Fisher says. "The network of underground sites that traffic in pirated movies and music won't disappear. It will simply adapt."

Within 24 hours after U.S. authorities shut down Megaupload servers in Virginia, ABC News reported that the website was accessible again by typing a numeric address in a Web browser. But that address led to a webpage with a message saying work was underway to restore Megaupload, and asking people to spread the word on Facebook and Twitter.

Megaupload may have had a contingency plan with a backup domain and server at the ready to restore services should its main servers go down, something that many Internet companies do, Fisher says.

Al Hilwa, an analyst at research firm IDC, says defining who is responsible for strictly obeying copyright laws is at the heart of the piracy issue. "Shifting that responsibility to the technology providers, networks, hosters and intermediate service providers who make up the file-transfer chain would mean burdening them with escalating costs. That would make them uncompetitive and hurt their growth." he says.

That law enforcement officers were able to coordinate internationally to take action demonstrates that current laws targeting copyright violators work, says Art Brodsky, a spokesman for Public Knowledge, a Washington, D.C.-based communications and technology advocacy group. "They roped in New Zealand police and the FBI flew down there," he said. "So why do you need more laws?"

On Friday afternoon, Twitter and Facebook users continued buzzing about the shutdown of Megaupload. Some posted messages such as "R.I.P. Megaupload," "Missing Megaupload already," and "Let's all have 1 minute of silence for Megaupload."

Meanwhile, federal authorities are investigating disruptions to the Justice Department website and threats to the site maintained by the FBI believed to be prompted by the Megaupload arrests.

The Justice Department website was back online Friday after being hit Thursday evening. An alliance of hackers known as "Anonymous" claimed responsibility.

In a written statement, the Justice Department said its Web server had experienced a "significant increase in activity, resulting in a degradation in service" and that the activity was "being treated as a malicious act."

The enforcement action against Megaupload and actions by hacktivists was not unprecedented. Something similar happened in May 2006 when authorities shut down movie-sharing site Piracy Bay.

Millions of people use websites such as Megaupload and Bit Torrent to transfer TV shows, movies and music. Other file-sharing sites like You Send It and Dropbox focus on file-sharing for workplace collaboration. And newer file-sharing sites like Spotify focus on file-sharing within social media and mobile devices.

If anti-piracy enforcement actions accelerate, hacktivists can be expected to uniformly retaliate, says Josh Shaul, chief technology officer at Application Security.

"We may be looking at a cycle of more enforcement action, more sites being taken down and more retaliation by hacktivists," Shaul says. "People will bring up new file-sharing sites in countries where they can't be taken down, and the cycle will continue."

The hacktivists are getting better at retaliating quickly. Recruits to help execute distributed denial of service (DDos) attacks are trained and equipped to instantly add the processing power of their individual PCs to the cause.

The constant stream of nuisance requests that cut off public access to the Justice Department and motion picture industry websites came from about 5,635 individuals using a networking tool called a "low orbit ion cannon," according to messages posted by Anonymous, which claims this to be the largest such attack ever. PCs likely scattered in multiple nations, using tried-and-true technology to make them difficult to trace, were used.

Such attacks formulate spontaneously in Internet Relay Chat rooms. Participants must use their own initiative to set up their PCs ahead of time so they can't be traced, but the necessary software and training are readily available online.

"The ranks of the hacktivists are swelling," Shaul says. "More people are willing to stick their necks out on the line and start hacking."

While Justice says it is illegal for anyone to download pirated content, its investigation focused on the leaders of the company, not end users who may have downloaded a few movies for personal viewing.

Megaupload.com has 150 million registered users, about 50 million hits daily and endorsements from music superstars. The U.S. indictment said founder Dotcom made $42 million last year alone.

The website allowed users to download some content for free, but made money by charging subscriptions to people who wanted access to faster download speeds or extra content. The website also sold advertising.

The movie industry has fought against the site, saying it is making money off pirated material. Though the company is based in Hong Kong and Dotcom was living in New Zealand, some of the alleged pirated content was hosted on leased servers in Virginia, and that was enough for U.S. prosecutors to act.

New Zealand police seized guns, artwork, more than $8 million in cash and luxury cars valued at nearly $5 million after serving 10 search warrants at several businesses and homes around Auckland.

Dotcom is a resident of Hong Kong and New Zealand and a dual citizen of Finland and Germany who had his name legally changed. The 37-year-old was previously known as Kim Schmitz and Kim Tim Jim Vestor.

Of the three others arrested Thursday, two were German citizens and one was Dutch. Three other defendants — another German, a Slovakian and an Estonian — remained at large.

The Electronic Frontier Foundation, which defends free speech and digital rights online, said in a statement that the arrests set "a terrifying precedent. If the United States can seize a Dutch citizen in New Zealand over a copyright claim, what is next?"

from the Hollywood Reporter, 2012-Jan-20, by Eriq Gardner:

SOPA Defeat Is Not the End Of Hollywood's Ramped-Up Fight Against Piracy (Analysis)

Hollywood still needs Obama. SOPA and the Protect-IP Act could be red herrings. And bigger fights lie ahead. Time to examine the much larger picture...

Today, leaders in both the Senate and House announced the postponement of a procedural vote on controversial anti-piracy bills. As the backlash to SOPA and the Protect-IP Act forces political leaders to reconsider their stances, MPAA head Chris Dodd has signaled that he desperately wants to meet with leaders in the tech sector to look for a compromise.

A truce? Don't speak that word just yet.

Although debate over SOPA has instigated protests and gathered headlines in the past few weeks, the truth is that the legislation would have been only a small part of Hollywood's ongoing attempt to crack down on foreign piracy. Large entertainment studios wanted -- and still want, of course -- codified language that would result in serious efforts by websites to do something about troublesome foreign piracy sites. But even in the absence of such formal legislation, there's a plan to get the intended results anyway.

Here are some key weapons for Hollywood as politicians now do their best to quell the SOPA uproar:

* Federal Enforcement

Many observers have noted the timing of federal authorities dropping the hammer on Megaupload by shutting down the file-sharing site and arresting its leaders on Thursday.

What is not commonly appreciated is the amount of frustration inside Hollywood in the past decade at the Justice Department's refusal to do more about wholesale copyright infringement. Yes, the Hollywood trade organizations and labor guilds issue praising press releases anytime the FBI or ICE makes a major action against copyright pirates. But in our background interviews with Hollywood's fiercest piracy protectors over the years, we've consistently heard how the entertainment industry thinks the executive branch of the government could be doing so much more.

Remember the scene in The Wire when Baltimore cops go into FBI offices in an attempt to get them to make a major drug kingpin crackdown? In that episode, the cops are told that drugs are simply not as big a priority as things like terrorism and political corruption.

That's exactly what happens in real life. Hollywood would love for federal authorities to do everything they can concerning piracy, and to that end, have attempted to connect piracy with terrorism funding. But the Justice Department has limited resources. If the Megaupload raid is a sign of things to come in terms of federal law enforcement reprioritization, it will certainly make Hollywood happy.

* International Enforcement

One thing remarkable about the Megaupload crackdown was the willingness of New Zealand's government to arrest leaders of the company, who were residents of that nation. This was not a simple matter of slapping handcuffs on a few guys. Reportedly, Megaupload founder Kim Dotcom retreated behind a series of electronic locks and barricaded himself in a safe room, gun in hand. In other words, New Zealand decided to puts its own law enforcement in harm's way in the fight against piracy.

The move followed another action in England where 23-year-old British student, Richard O'Dwyer, accused of running a website linking to free films and TV shows, was ordered extradited to the United States. To make this sort of stuff happen requires diplomatic effort. It's not entirely clear that mere linking is illegal so we imagine that British officials had to be convinced that extradition was appropriate.

All the hullabaloo about whether Hollywood will continue to donate money to the campaign of Barack Obama ignores one big reality: They still need him. The Justice Department has discretion on whether to pursue the Megauploads of the world. And the State Department or the U.S. Trade Rep still gets to decide how hard to lean on other countries for cooperation.

* Extraordinary Injunctive Relief

As we discussed last month, even if SOPA doesn't pass, courts could eventually put the effects of the bill into force anyway. Hollywood would surely like this, but in the meantime, judges are issuing all sorts of extraordinary injunctive relief for plaintiffs in intellectual property disputes.

One judge in a case involving a website that marketed counterfeit Chanel merchandise ordered GoDaddy to change registration info and told Google, Twitter, Facebook and Bing to "de-index and/or remove [the domain name] from any search results page." Another judge ordered two advertising networks from assisting a website that was pointing its users to copyright infringing textbooks. (The judge reversed course after hearing an objection.) And yet more judges have ordered search engines, web hosts, registrars and registries to cease facilitating access to websites allegedly participating in trademark infringement.

SOPA protesters roundly cheered when DNS-blocking was taken out of the anti-piracy bills before Congress. But just because Congress won't explicitly approve such measures doesn't mean that they won't happen. In piracy cases going forward, Holllywood can ask sympathetic judges to grant such relief anyway.

* The Boundaries Of Copyright Liability

The debate over SOPA has been marked by heated rhetoric, and perhaps the most overreaching reaction to the controversy is suggestions that some big American-based websites like Wikipedia or Reddit could shutter as a result of a passage. We'll let others argue whether SOPA really poses an existential threat to such operations, but we will propose that the sanctity of free speech isn't the primary reason why some leaders in the tech lobby are fighting so hard.

Rather, the legislation represents yet more burden for them.

The passage of previous anti-piracy laws has compelled these tech companies to have takedown provisions in place, and in many instances, to invest in things like filtering and digital fingerprinting technologies. Now, for better or worse, these companies are dealing with the ramifications of receiving subpoenas and responding to ex parte injunctive relief orders. This is not only a headache and an added expense. It also disrupts relationships with its legitimate customers. Does Facebook, for example, want to explain why it can't protect the secrets of all its users?

Hollywood has stressed that the legislation is intended to fight foreign pirates, but what's got everyone stressing out is the obligations on companies inside American borders. Hollywood has defended the legislation on the idea that nothing will happen without judicial approval, but yes, what then...?

Just because the SOPA fight has been tabled for now doesn't mean that the fight won't continue in the courts over the boundaries of such obligations. Coming soon is the decision in the 2nd Circuit Court of Appeal in Viacom's lawsuit against YouTube. Viacom maintains that YouTube willfully blinded itself to infringements and had an affirmative duty to clean up its servers of copyright infringing material. YouTube says that it is the copyright owner's responsibility to first provide notice of specifically infringing material. That's one case that will shape copyright liability and the burdens of tech companies going forward, but there are others (like MPAA's lawsuit against Hotfile) which will also be important.

Each of these developments will have just as much -- and perhaps more -- impact on innovation, speech, and property protection as the SOPA sweepstakes. Keep perspective.

from TechDirt.com, 2012-Jan-18, by Mike Masnick:

Supreme Court Chooses SOPA/PIPA Protest Day To Give A Giant Middle Finger To The Public Domain
from the ridiculous dept

We've been talking about the Golan case, and its possible impact on culture, for years. If you're unfamiliar with it, it's the third in a line of cases, starting with the Eldred case, to challenge aspects of copyright law as violating the First Amendment. The key point in the case was questioning whether or not the US could take works out of the public domain and put them under copyright. The US had argued it needed to do this under a trade agreement to make other countries respect our copyrights. Of course, for those who were making use of those public domain works, it sure seemed like a way to unfairly lock up works that belonged to the public. It was difficult to see how retroactively taking works out of the public domain could fit into the traditional contours of copyright law... but today, on the day of the big SOPA/PIPA protests... that's exactly what happened (pdf).

The ruling is ridiculously depressing. The Justices basically just keep repeating the mantra they first set forth in Eldred, that as long as Congress says it's okay -- and that the "fair use" and the "idea/expression" dichotomy remain -- all is just dandy. They also claim that since the very first copyright law took works from the public domain and gave them copyright protection, clearly there's nothing wrong with removing works from the public domain. This decision reinforces why the Eldred decision was a complete disaster, and just keeps getting worse. The Eldred ruling basically ignored the fact that copyright had changed entirely in a way that went against the First Amendment... by retroactively granting copyright extension. Now that ruling is being used to take works out of the public domain as well.

First, as with Eldred (and the second case in the trilogy, the Kahle case), I believe that the Court is greatly mistaken in its analysis of copyright law. First it claims that there's little fight between copyright and the First Amendment because the two things were put in place at about the same time. That's a specious argument for a variety of reasons. First, the original copyright law was significantly limited in a way that it was unlikely to really come into conflict with the First Amendment. It was limited to just a few specific areas, and for a very short period of time. It's only now that (1) copyright law has been totally flipped to make just about everything you create covered by copyright, (2) the law has been massively expanded in time and (3) changes in technology make us all create tons of "copyrighted" material all the time -- things have changed an entirely. It's hard to see how the Court can reasonably argue that the traditional contours of copyright law have not changed... but that's exactly what it does. Stunningly, the majority decision here, written by Justice Ginsburg, seems to suggest that there's no First Amendment issue here, because if people want to make use of the works that were previously, but are no longer, in the public domain, they can just buy those rights:

But Congress has not put petitioners in this bind. The question here, as in Eldred, is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace.

It's a really frustrating decision, because it appears to lack any recognition of just how much copyright law has changed and expanded. It seems to lack -- as it did in Eldred -- any sense of how overreaching copyright law is, in fact, stifling free expression everyday. It's a tone deaf response to what's actually happening.

The dissent, by Justice Breyer (with support from Alito), seems to actually understand this. The rest of the Justices (excluding Kagan, who recused herself due to her role in the case prior to joining the court) just don't seem to want to bother to understand. The dissent, however, kicks off with a quote from Thomas Macaulay's famous speech on the problems of copyright, noting that copyright is, by definition, "a tax on readers for the purpose of giving a bounty to writers." They then note that the decision to remove works from the public domain fails to uphold the basic premise of copyright law:

The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works -- works that have already been created and already are in the American public domain. At the same time, the statute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books--books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world.

Breyer -- who has always had a much stronger grasp on copyright than his colleagues -- notes that the whole point of copyright law is to encourage new works, and that the Founders themselves recognized that "monopoly is a two-edged sword, that must be wielded carefully. Breyer quotes the early words of James Madison to Thomas Jefferson, that copyright should be granted, but only "in certain cases.... with caution and guarded with strictness agst abuse" and solely such that it acts as "compensation for a benefit actually gained to the community... which the owner might otherwise withhold from public use."

How taking works out of the public domain accomplishes that goal mystifies Breyer (and me and many others).

Separately, he notes that Congress and the Court have both made it clear in the past that copyright is for the benefit of the public, and not solely to grant rights to authors. The granting of monopolies to authors is the method by which the public might benefit, but not the purpose of copyright law. Retroactively seizing works out of the public domain does not benefit the public. And thus, is unconstitutional. Except... to the six justices who chose not to understand copyright law.

That the Supreme Court released this on the same day of widespread protests against overreaching copyright law is a bit of unfortunate irony. The truth is that Congress is the one who could fix this by actually fixing copyright law and making it clear that the Court's interpretation was wrong. But, instead, because Hollywood pays the bills, they only make copyright law worse. While it's easy to blame this ruling on the Supreme Court, it really implicates Congress. And, thus, it's actually depressingly fitting that this ruling came out today.

from the New York Times, 2012-Jan-18, by Jonathan Weisman:

Web Protests Piracy Bills, and Senators Change Course

WASHINGTON — Online protests on Wednesday quickly cut into Congressional support for online antipiracy measures as lawmakers abandoned and rethought their backing for legislation that pitted new media interests against some of the most powerful old-line commercial interests in Washington.

A freshman senator, Marco Rubio of Florida, a rising Republican star, was first Wednesday morning with his announcement that he would no longer back antipiracy legislation he had co-sponsored. Senator John Cornyn, the Texas Republican who heads the campaign operation for his party, quickly followed suit and urged Congress to take more time to study the measure, which had been set for a test vote next week.

By Wednesday afternoon, Senator Orrin G. Hatch, Republican of Utah and one of the Senate bill’s original co-sponsors, called it “simply not ready for prime time” and withdrew his support.

Their decisions came after some Web pages shut down Wednesday to protest two separate bills, the Stop Online Piracy Act and the Protect Intellectual Property Act. The Stop Online Piracy Act was written by Representative Lamar Smith, the Texas Republican who is chairman of the House Judiciary Committee. Senator Patrick Leahy, the Vermont Democrat who is chairman of the Senate Judiciary Committee, drafted the Protect Intellectual Property Act.

Protests organized in the real world drew far less attention. A rally convened in Midtown Manhattan outside the offices of Senators Charles E. Schumer and Kirsten E. Gillibrand, who co-sponsored some of the proposed legislation, drew a few hundred protesters.

Members of Congress, many of whom are grappling with the issues posed by the explosion in new media and social Web sites, appeared caught off guard by the enmity toward what had been a relatively obscure piece of legislation to many of them. The Senate’s high-tech expertise was mocked in 2006 after the chairman of the Commerce Committee, Senator Ted Stevens of Alaska, called the Internet “not a big truck” but a “series of tubes” — an observation enshrined in the Net Hall of Shame.

In reaction to the pending legislation, the online encyclopedia Wikipedia went dark. Google’s home page had a black banner across it that led to information blasting the bills.

Such new-media lobbying was having an impact.

“As a senator from Florida, a state with a large presence of artists, creators and businesses connected to the creation of intellectual property, I have a strong interest in stopping online piracy that costs Florida jobs,” Mr. Rubio wrote on his Facebook page. “However, we must do this while simultaneously promoting an open, dynamic Internet environment that is ripe for innovation and promotes new technologies.”

Mr. Rubio has outsize influence for a junior senator entering his second year in Congress. He is considered a top contender for the vice presidential ticket of his party’s White House nominee this year, and is being groomed by the Republican leadership to be the face of his party with Hispanics and beyond.

Mr. Cornyn posted on his Facebook page that it was “better to get this done right rather than fast and wrong. Stealing content is theft, plain and simple, but concerns about unintended damage to the Internet and innovation in the tech sector require a more thoughtful balance, which will take more time.”

The moves on Capitol Hill came after the White House over the weekend also backed off the legislative effort.

“While we believe that online piracy by foreign Web sites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk or undermines the dynamic, innovative global Internet,” White House officials said.

With the growing reservations, a bill that passed the Senate Judiciary Committee unanimously and without controversy may be in serious trouble. Senator Harry Reid, the majority leader and Democrat of Nevada, has scheduled a procedural vote on the Leahy version for early next week, but unless negotiators can alter it to satisfy the outraged online world, no one expects it to get 60 votes.

“I encourage Senator Reid to abandon his plan to rush the bill to the floor,” Mr. Rubio wrote on Facebook. “Instead, we should take more time to address the concerns raised by all sides, and come up with new legislation that addresses Internet piracy while protecting free and open access to the Internet.”

Indeed, a senior Senate Republican leadership aide said the Senate version of the bill was dead in its current form, and bipartisan negotiations had begun to revise it considerably. Senators from both parties want to address the Internet piracy issue, but they acknowledged that concerns raised by Google and its online partners would have to be addressed.

At issue is how the bills deal with “DNS filtering.” Web site addresses are converted by the Internet’s domain name server system from typed words into computer language to bring a user to a specific Web site.

The Congressional bills would allow the Justice Department to seek injunctions to prevent domestic Internet service providers from translating the names of suspected pirate sites; the legislation would also require search engines such as Google not to display suspected sites on search results. In effect, the bills would make search engines the enforcers of a law they oppose.

Congressional negotiators are looking at radical revisions to the DNS provisions, but lawmakers may decide the resulting legislation is too neutered to pursue, aides from both parties say.

Support for the legislation on Capitol Hill eroded throughout the day. Another Republican co-sponsor of the Senate bill, Roy Blunt of Missouri, withdrew his support in the early afternoon. Other senators who issued concerns about the legislation as written included Republican Senators Mark Kirk of Illinois and Jim DeMint of South Carolina. Senator Scott Brown, Republican of Massachusetts, had said on Tuesday that he would vote against the measure.

Mr. DeMint called the proposed legislation “misguided bills that will cause more harm than good.”

“In seeking to protect intellectual property rights, we must ensure that we do not undermine free speech, threaten economic growth, or impose burdensome regulations,” he said in a statement.

The media industry has been pushing for a legislative response to online piracy for some time. Groups like the Motion Picture Association of America and the Recording Industry Association of America, as well as giants like News Corporation, are practiced at old-time lobbying — hiring big-name Washington personalities like the former senator Christopher J. Dodd and contributing to campaign funds.

Mr. Dodd, who is now chairman and chief executive of the motion picture association, forcefully denounced the shutdowns in a statement issued on Tuesday.

“Only days after the White House and chief sponsors of the legislation responded to the major concern expressed by opponents and then called for all parties to work cooperatively together, some technology business interests are resorting to stunts that punish their users or turn them into their corporate pawns, rather than coming to the table to find solutions to a problem that all now seem to agree is very real and damaging,” he said.

In the Tea Party era of grass-roots muscle, though, the old school was taken to school, Congressional aides and media lobbyists agree.

“The problem for the content industry is they just don’t know how to mobilize people,” said John P. Feehery, a former Republican leadership aide and executive at the motion picture lobby. “They have a small group of content makers, a few unions, whereas the Internet world, the social media world especially, has a tremendous reach. They can reach people in ways we never dreamed of before.

“This has been a real learning experience for the content world,” Mr. Feehery added.

from the Wall Street Journal, 2012-Jan-18, by Amy Schatz, Siobhan Hughes, Geoffrey A. Fowler and Christopher S. Stewart, with Tom Loftus and Corey Boles contributing:

SOPA Bill Faces New Hurdles

Antipiracy bills in Congress faced new hurdles Wednesday as House Speaker John Boehner said the legislation wasn't ready for a vote and more than a half-dozen senators expressed reservations in some form.

Sen. Orrin Hatch of Utah, the top Republican on the Judiciary Committee, was among the most significant shifts. He said in a statement Wednesday afternoon that the bill is "simply not ready for prime time."

Other senators expressing reservations included Sen. Marco Rubio (R., Fla.), formerly a co-sponsor of the Senate version of the legislation, Sen. Scott Brown (R., Mass.) and Sen. Roy Blunt (R., Mo.). Mr. Rubio said he was withdrawing his support and called for "new legislation that addresses Internet piracy while protecting free and open access to the Internet.

Similar versions of online piracy legislation in the House and the Senate—called the Stop Online Piracy Act, or SOPA, and Protect Intellectual Property Act, or PIPA—are aimed at stopping domestic access and funding to foreign-based websites that offer pirated movies, music and other content. The legislation would give the U.S. attorney general new powers to cut off funding, advertising and access to the sites.

Still, the lead backer of controversial House piracy legislation said he "expects to move forward" with the legislation next month.

House Judiciary Committee Chairman Lamar Smith (R., Texas) said in an interview Wednesday that he wasn't discouraged by the criticisms leveled at him by opponents of the legislation. He said many of their concerns have already been addressed by changes to the bill.

"It's easy to engage in fear-mongering and it's easy to raise straw men and red herrings but if they read the bill they will be reassured," Mr. Smith said.

Protests against the legislation mounted on Wednesday. Online encyclopedia Wikipedia and many other websites went dark in protest against the legislation, which they say will lead to a less open Internet and could lead to new legal liability for U.S. websites that inadvertently host pirated movies, music or other content.

Tiffiniy Cheng, the founder of the activist group Fight for the Future, said that at least 60,000 websites had signed up on Sopastrike.com to say that they would join Wednesday's online "blackout" in some way.

Internet users going to Wikipedia's front page on Wednesday were greeted with this protest banner from the online encyclopedia.

"This is a fundamental struggle that people are waging against corporate copyright holders who want to control the Internet," she said. "Internet users around the world and especially in the U.S. are up in arms about it."

Some famous names in tech joined in the fray on Wednesday, too. Facebook Inc. CEO Mark Zuckerberg posted a status update on his social network about his opposition to the laws. "We can't let poorly thought out laws get in the way of the internet's development. Facebook opposes SOPA and PIPA, and we will continue to oppose any laws that will hurt the Internet," he wrote.

"The world today needs political leaders who are pro-internet. We have been working with many of these folks for months on better alternatives to these current proposals," he added.

Google Inc. executive chairman Eric Schmidt echoed the plea that Google plastered across the front of its search engine by Tweeting, "Take 1 minute to sign Google's petition urging Congress to vote NO on PIPA and SOPA. Defend the web!"

Silicon Valley's own Democrat member of Congress, Rep. Anna G. Eshoo from Palo Alto, joined in the online protest by turning her House website black. "Members of Congress need to hear about the consequences of SOPA, and when they do, they'll learn of the serious consequences to the Internet the bill poses. It's time to pull up the emergency brake on this legislation," she said in a statement.

Rep. Earl Blumenauer (D., Ore.) said he would black out his website for one hour on Wednesday afternoon to show solidarity with online sites. Rep. Peter DeFazio (D., Ore.) went to the House floor to say, "Imagine how some of these user content sites are going to have to try and police things. They can always err on the side of censorship, because there's broad provisions in this bill to allow you in good faith to censor something."

A New York City technology group called NY Tech Meetup, which hosts monthly meetings for start-ups, scheduled a protest for 12:30 p.m. in front of the midtown offices of U.S. Senators Charles Schumer and Kirsten Gillibrand.

As of about noon, 1,500 people had indicated on NY Tech's website that they would be attending the protest. Both Sen. Schumer (D.-N.Y.) and Sen. Gillibrand (D.-N.Y.) are sponsors of PIPA.

"Obviously there's no censorship in the bill and no one can indicate any censorship whatsoever. It's not censorship to want to stop illegal activity," Mr. Smith said Wednesday. "That's all we do. We're trying to impede illegal activity by foreign websites."

The Stop Online Piracy Act is awaiting action in the House Judiciary Committee, which tried to finish work on the bill in December but stopped after opponents proposed dozens of amendments. The House returned this week from its holiday recess. Mr. Smith said Tuesday that he plans to try again to pass the legislation out of committee next month.

Even if he is successful, it's not clear if the legislation would move much further unless changes are made to appease opponents. On Wednesday, House Speaker John Boehner (R., Ohio) told reporters that the piracy legislation wasn't set to come up for a vote anytime soon because "it's pretty clear to many of us that there's a lack of consensus at this point."

"I would hope the committee would continue to work to try and build consensus before this bill comes to the floor," Mr. Boehner said.

Similar legislation has been stalled in the Senate since May but is expected to be on the floor Tuesday for a procedural vote.

Meanwhile, websites including Wikipedia and Craigslist on Wednesday continued to shut down their English-language services to protest the bill. The websites fear that they will wind up as targets for unknowingly linking to pirated content, and wind up facing court orders to shut down links to pirated content or private legal action for hosting allegedly illegal content.

Large media companies say the legislation is tailored to target foreign-based websites, which are currently outside the jurisdiction of U.S. law enforcement officials. But media executives' efforts to rally support for the bill haven't been as visible as their opponents.

Asked about a network going dark as a public stunt in response to Internet blackout day, a media executive said Wednesday, "It's not practical. The only time that we've done anything coordinated like that across networks is in a time of national peril or national disaster. I don't think this qualifies."

The media executive also said that it had not been easy recruiting Hollywood talent for the cause. "Despite common understanding that we control the talent, they do whatever they want."

The executive added that there was some "disappointment" when Ashton Kutcher came out against SOPA. The star of CBS' "Two and a Half Men" came out against the legislation in late December, declaring in a lengthy blog post that "SOPA Is The problem And Not The Solution."

from the Hill, 2012-Jan-14, by Brendan Sasso:

SOPA shelved until 'consensus' is found

House Oversight Chairman Darrell Issa (R-Calif.) said early Saturday morning that Majority Leader Eric Cantor (R-Va.) promised him the House will not vote on the controversial Stop Online Piracy Act (SOPA) unless there is consensus on the bill.

"While I remain concerned about Senate action on the Protect IP Act, I am confident that flawed legislation will not be taken up by this House," Issa said in a statement. "Majority Leader Cantor has assured me that we will continue to work to address outstanding concerns and work to build consensus prior to any anti-piracy legislation coming before the House for a vote."

The announcement comes just hours after Judiciary Chairman Lamar Smith (R-Texas), SOPA's sponsor, made a major concession to the bill's critics by agreeing to drop a controversial provision that would have required Internet service providers to block infringing websites.

SOPA is designed to go after foreign websites that offer illegal copies of music, movies and TV shows with impunity. Even without the provision allowing sites to be blocked, the bill would empower the Justice Department and copyright holders to demand that search engines delete links to sites “dedicated” to copyright infringement. Ad networks and payment processors would be prohibited from doing business with the sites.

The bill has sparked a backlash from Internet freedom advocates and Web companies, including Google, Yahoo and Facebook, who say it would stifle innovation and suppress free speech.

The provision that would have required Internet providers to block infringing websites was one of the most controversial aspects of the bill. Google Chairman Eric Schmidt compared the provision to how China censors political speech online.

Issa, who is a former chairman of the Consumer Electronics Association, is close with the tech community and has been an outspoken critic of SOPA. He had scheduled a hearing for next Wednesday to examine the potential consequences of the bill's site-blocking provision, but he announced in his statement Saturday that he would cancel the hearing in light of Smith's decision to drop the provision.

Issa said that even without the site-blocking provision, the bill is "fundamentally flawed."

"Right now, the focus of protecting the Internet needs to be on the Senate where Majority Leader Reid has announced his intention to try to move similar legislation in less than two weeks," he said.

The Senate bill's sponsor, Sen. Patrick Leahy's (D-Vt.), said on Thursday that he is open to changes to the site-blocking provision.

from Gun Owners of America, 2012-Jan-18:

Senate Moves on Bill to "Muzzle the Web"
Legislation could potentially shut down gun websites

By now, you are no doubt aware that several websites have either gone totally or partially "dark" today in protest of the pernicious internet legislation that will be coming to a vote next week. Wikipedia and Google are just two of the websites which are protesting in this manner.

And while you may have not paid much attention to this story, you need to know that the "muzzle the web" legislation these sites are protesting could also affect your ability to get gun-related information on websites like GOA's.

The reason is that S. 968 could, in its final form, allow the Brady Campaign to partially shut down our GOA website and our organization (plus many other pro-gun websites) with a series of factually accurate, but legally frivolous complaints.

The Senate bill and its House counterpart have accurately been called "a direct attack on the underpinnings of the web."

True, many of the most serious "gun problems" are in the House counterpart. But the reality is this: We are within a few votes of killing the whole concept next week in the Senate with only 41 Senate votes.

But if we allow the so-called "anti-piracy" bill to go forward on the HOPE that the worst provisions will not make it into the final version -- and we fail to eliminate them -- the bill may be unstoppable.

Here are the "gun problems," as we see them: Section 103(b)(1) of H.R. 3261 allows any "holder of an intellectual property right" to demand that PayPal and other payment and advertising services stop providing services to organizations like ours, thereby shutting off our income.

How would they do this? Perhaps by arguing that we were stealing their intellectual property by quoting their lying misrepresentations in our alerts.

Is this legally frivolous? Sure it is. But the Brady Campaign is the King of Frivolous Complaints:

* Remember when the Brady Campaign asked the Federal Election Commission in 2007 to shut down GOA's ability to post its candidate ratings on the Internet? They claimed that we were in violation of the McCain-Feingold Campaign Finance Reform Act. Thankfully, the FEC ruled in GOA's favor, thus enabling us to continue posting candidate ratings without restraint.

* Remember when the Brady Campaign got 36 state and local jurisdictions to bring frivolous lawsuits against gun manufacturers -- not in the expectation of winning, but to drain the resources of the manufacturers in order to halt the manufacture of guns in America?

This "muzzle the web" legislation will throw the doors open to even more frivolous complaints. Could we defend ourselves? Yes, we could. We could file a counter notification under section 103(b)(5) and spend years defending ourselves. But the one thing we did learn during the 36 frivolous lawsuits is that the anti-gun forces in America have very deep pockets.

And the other problem is that, under section 104, our Internet providers would be insulated from liability for shutting us down. But they would receive no comparable insulation from legal liability if they refused to cut us off.

The Senate version, S. 968, has been amended, at the behest of Iowa Senator Chuck Grassley and others, to provide many protections which were not in its initial form.

Under section 3, the Attorney General would go to court and would have to claim that, because of a hyperlink to an offending site, we were "primarily" engaged in the theft of intellectual property.

We would feel a lot better about these protections if the Attorney General were not Eric Holder, a ruthless ideologue who has demonstrated that he will go to any lengths to destroy the Second Amendment.

So the bottom line is this: H.R. 3261 and S. 968 would potentially empower the Brady Campaign and Eric Holder to go after our Internet site. To do so, they would have to make the same frivolous arguments and engage in the same lawless activity that they have done so often in the past.

But -- given that we're within a few votes of snuffing out that risk by killing the bill in the Senate -- we believe it's the better course of action to do so.

from the Stanford Law Review, 2011-Dec-19, by Mark Lemley, David S. Levine, & David G. Post:

Don't Break the Internet

Two bills now pending in Congress—the PROTECT IP Act of 2011 (Protect IP) in the Senate and the Stop Online Piracy Act (SOPA) in the House—represent the latest legislative attempts to address a serious global problem: large-scale online copyright and trademark infringement. Although the bills differ in certain respects, they share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet's addressing system, for the principle of interconnectivity that has helped drive the Internet's extraordinary growth, and for free expression.

To begin with, the bills represent an unprecedented, legally sanctioned assault on the Internet's critical technical infrastructure. Based upon nothing more than an application by a federal prosecutor alleging that a foreign website is “dedicated to infringing activities,” Protect IP authorizes courts to order all U.S. Internet service providers, domain name registries, domain name registrars, and operators of domain name servers—a category that includes hundreds of thousands of small and medium-sized businesses, colleges, universities, nonprofit organizations, and the like—to take steps to prevent the offending site's domain name from translating to the correct Internet protocol address. These orders can be issued even when the domains in question are located outside of the United States and registered in top-level domains (e.g., .fr, .de, or .jp) whose operators are themselves located outside the United States; indeed, some of the bills' remedial provisions are directed solely at such domains.

Directing the remedial power of the courts towards the Internet's core technical infrastructure in this sledgehammer fashion has impact far beyond intellectual property rights enforcement—it threatens the fundamental principle of interconnectivity that is at the very heart of the Internet. The Internet's Domain Name System (DNS) is a foundational block upon which the Internet has been built and upon which its continued functioning critically depends; it is among a handful of protocols upon which almost every other protocol, and countless Internet applications, rely to operate smoothly. Court-ordered removal or replacement of entries from the series of interlocking databases that reside in domain name servers and domain name registries around the globe undermines the principle of domain name universality—the principle that all domain name servers, wherever they may be located across the network, will return the same answer when queried with respect to the Internet address of any specific domain name. Much Internet communication, and many of the thousands of protocols and applications that together provide the platform for that communication, are premised on this principle.

Mandated court-ordered DNS filtering will also have potentially catastrophic consequences for DNS stability and security. It will subvert efforts currently underway—and strongly supported by the U.S. government—to build more robust security protections into the DNS protocols. In the words of a number of leading technology experts, several of whom have been intimately involved in the creation and continued evolution of the DNS for decades:

Mandated DNS filtering would be minimally effective and would present technical challenges that could frustrate important security initiatives. Additionally, it would promote development of techniques and software that circumvent use of the DNS. These actions would threaten the DNS's ability to provide universal naming, a primary source of the Internet's value as a single, unified, global communications network. . . . DNS filtering will be evaded through trivial and often automated changes through easily accessible and installed software plugins. Given this strong potential for evasion, the long-term benefits of using mandated DNS filtering to combat infringement seem modest at best.[1]

Indeed, this approach could actually have an effect directly contrary to what its proponents intend: if large swaths of websites are cut out of the Internet addressing system, those sites—and the users who want to reach them—may well gravitate towards alternative, unregulated domain name addressing systems, making it even harder for governments to exercise their legitimate regulatory role in Internet activities.

The bills take aim not only at the Internet's core technical infrastructure, but at its economic and commercial infrastructure as well. Credit card companies, banks, and other financial institutions could be ordered to “prevent, prohibit, or suspend” all dealings with the site associated with the domain name. Online advertisers could be ordered to cease providing advertising services to the site associated with the domain name. Search engine providers could be ordered to “remove or disable access to the Internet site associated with the domain name,” and to disable all hypertext links to the site.

These drastic consequences would be imposed against persons and organizations outside of the jurisdiction of the U.S. courts by virtue of the fiction that these prosecutorial actions are proceedings in rem, in which the “defendant” is not the operator of the site but the domain name itself. Both bills suggest that these remedies can be meted out by courts after nothing more than ex parte proceedings—proceedings at which only one side (the prosecutor or even a private plaintiff) need present evidence and the operator of the allegedly infringing site need not be present nor even made aware that the action was pending against his or her “property.”

This not only violates basic principles of due process by depriving persons of property without a fair hearing and a reasonable opportunity to be heard, it also constitutes an unconstitutional abridgement of the freedom of speech protected by the First Amendment. The Supreme Court has made it abundantly clear that governmental action suppressing speech, if taken prior to an adversary proceeding and subsequent judicial determination that the speech in question is unlawful,[2] is a presumptively unconstitutional “prior restraint.” In other words, it is the “most serious and the least tolerable infringement on First Amendment rights,”[3] permissible only in the narrowest range of circumstances. The Constitution requires a court “to make a final determination” that the material in question is unlawful “after an adversary hearing before the material is completely removed from circulation.”[4]

The procedures outlined in both bills fail this fundamental constitutional test. Websites can be “completely removed from circulation”—rendered unreachable by, and invisible to, Internet users in the United States and abroad—immediately upon application by the government, without any reasonable opportunity for the owner or operator of the website in question to be heard or to present evidence on his or her own behalf. This falls far short of what the Constitution requires before speech can be eliminated from public circulation.

As serious as these infirmities are, SOPA, the House's bill, builds upon them, enlarges them, and makes them worse. Under SOPA, IP rights holders can proceed vigilante-style against allegedly offending sites, without any court hearing or any judicial intervention or oversight whatsoever. For example, SOPA establishes a scheme under which an IP rights holder need only notify credit card companies of the facts supporting its “good faith belief” that an identified Internet site is “primarily designed or operated for the purpose of” infringement. The recipients of that notice will then have five days to cease doing business with the specified site by taking “technically feasible and reasonable” steps to prevent it “from completing payment transactions” with customers. And all of this occurs based upon a notice delivered by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits. If they get the assistance of a court, IP owners can also prevent other companies from “making available advertisements” to the site, and the government can prevent search engines from pointing to that site.

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country's tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

United States law has long allowed Internet intermediaries to focus on empowering communications by and among users, free from the need to monitor, supervise, or play any other gatekeeping or policing role with respect to those communications. Requiring Internet service providers, website operators, search engine providers, credit card companies, banks, Internet advertisers, and others to block access to websites because of their content would constitute a dramatic retreat from that important policy. Laws protecting Internet intermediaries from liability for content on the Internet are responsible for transforming the Internet into the revolutionary communications medium that it is today. They reflect a policy that has not only helped make the United States the world leader in a wide range of Internet-related industries, but that has also enabled the Internet's uniquely decentralized structure to serve as a global platform for innovation, speech, collaboration, civic engagement, and economic growth. These bills would undermine that leadership and dramatically diminish the Internet's capability as a communications medium. As Secretary of State Hillary Clinton noted last year:

[T]he new iconic infrastructure of our age is the internet. Instead of division, it stands for connection. But even as networks spread to nations around the globe, virtual walls are cropping up in place of visible walls. . . . Some countries have erected electronic barriers that prevent their people from accessing portions of the world's networks. They've expunged words, names, and phrases from search engine results. They have violated the privacy of citizens who engage in non-violent political speech. . . . With the spread of these restrictive practices, a new information curtain is descending across much of the world.[5]

It would be not just ironic, but tragic, were the United States to join the ranks of these repressive and restrictive regimes, erecting our own “virtual walls” to prevent people from accessing portions of the world's networks. Passage of these bills will compromise our ability to defend the principle of the single global Internet—the Internet that looks the same to, and allows free and unfettered communication between, users located in Boston, Bucharest, and Buenos Aires, free of locally imposed censorship regimes. As such, it may represent the biggest threat to the Internet in its history.

Copyright and trademark infringement on the Internet is a very real problem, and reasonable proposals to augment the ample array of enforcement powers already at the disposal of IP rights holders and law enforcement officials may serve the public interest. But the power to break the Internet shouldn't be among them.

Mark Lemley is the William H. Neukom Professor at Stanford Law School
David Levine is an Assistant Professor at Elon University School of Law
David Post is a Professor at Beasley School of Law, Temple University

Footnotes

1. Steve Crocker et al., Security and Other Technical Concerns Raised by the DNS Filtering Requirements in the PROTECT IP Bill, domainincite.com (May 2011), http://domainincite.com/docs/PROTECT-IP-Technical-Whitepaper-Final.pdf.
2. Freedman v. Maryland, 380 U.S. 51, 58-60 (1965).
3. Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).
4. Ctr. For Democracy & Tech. v. Pappert, 337 F. Supp. 2d 606, 657 (E.D. Pa. 2004) (emphasis added).
5. Hillary Clinton, U.S. Sec'y of State, Remarks on Internet Freedom (Jan. 21, 2010), http://www.state.gov/secretary/rm/2010/01/135519.htm.

from Popular Mechanics, 2011-Dec-20, by Adam Savage:

MythBuster Adam Savage: SOPA Could Destroy the Internet as We Know It

Soon the U.S. Congress will reconvene to consider the Protect IP Act and the Stop Online Piracy Act (SOPA). Mythbuster and PM contributing editor Adam Savage says that if these sweeping pieces of legislation pass, the U.S. will join the likes of China and Iran in censoring the Internet, and destroy the openness that made the Web perhaps the most important technological advance of his lifetime.

Right now Congress is considering two bills—the Protect IP Act, and the Stop Online Piracy Act (SOPA)—that would be laughable if they weren't in fact real. Honestly, if a friend wrote these into a piece of fiction about government oversight gone amok, I'd have to tell them that they were too one-dimensional, too obviously anticonstitutional.

Make no mistake: These bills aren't simply unconstitutional, they are anticonstitutional. They would allow for the wholesale elimination of entire websites, domain names, and chunks of the DNS (the underlying structure of the whole Internet), based on nothing more than the "good faith" assertion by a single party that the website is infringing on a copyright of the complainant. The accused doesn't even have to be aware that the complaint has been made.

I'm not kidding.

The Digital Millennium Copyright Act (DMCA), passed in 1998, is a lousy piece of legislation and a very useful lens through which to regard these two new pieces of legislation. Think of all the stories you've read over the past 14 years of people slapping DMCA takedowns of content that they didn't own, just because they didn't like what it had to say. One that comes to mind is Uri Gellar, the popular psychic who performed spoon bending and other tricks on TV in the 1970s. Using a DMCA claim, he had YouTube pull videos of him being humiliated during a 1973 appearance on The Tonight Show with Johnny Carson, when he had no copyright claim to them at all.

This is exactly what will happen with Protect IP and SOPA. We've seen it again and again. Give people a club like this and you can kiss the Internet as you know it goodbye. It's really that bad. And it's a clear violation of our First Amendment right to free speech.

The Internet is probably the most important technological advancement of my lifetime. Its strength lies in its open architecture and its ability to allow a framework where all voices can be heard. Like the printing press before it (which states also tried to regulate, for centuries), it democratizes information, and thus it democratizes power. If we allow Congress to pass these draconian laws, we'll be joining nations like China and Iran in filtering what we allow people to see, do, and say on the Web.

And we're better than that.

Please don't just take my word for it. There's tons of information out there about these two bills out there. Google it. Read the Stanford Law Review's take on it. And read what Cory Doctorow has to say here, here and here.

Educate yourself. Call your congressperson or senator and make your voice heard. You can make a difference.

from Forbes, 2011-Dec-21, by Andy Greenberg:

SOPA Haters Are Already Finding Easy Ways To Circumvent Its Censorship

“The Internet interprets censorship as damage and routes around it,” goes the saying coined by Sun Microsystems coder and EFF founder John Gilmore. Now the Internet's communities of coders and free speech advocates have interpreted the Stop Online Piracy Act (SOPA) as intolerable digital damage before it has even come to a vote, and are already working on tools anyone can use to route around its roadblocks to foreign, copyright-infringing sites.

While Congress has postponed the second half of its hearing of SOPA until next year, a developer named Tamer Rizk has been busy building an add-on for Firefox called DeSopa, which aims to give any Firefox user access to sites that SOPA's copyright protection measures has blocked. “This program is a proof of concept that SOPA will not help prevent piracy,” reads a note including on DeSopa's download page. “If SOPA is implemented, thousands of similar and more innovative programs and services will sprout up to provide access to the websites that people frequent. SOPA is a mistake. It does not even technically help solve the underlying problem, as this software illustrates.”

DeSopa takes advantage of an blatant weakness in how SOPA's controversial filtering mandate would function under the current version of the bill. The new copyright infringement regime would allow editing of the Domain Name System, the registry that converts websites' domains (like Google.com or Yahoo.com) into an Internet Protocol address (like 74.125.157.99 or 98.137.149.56). When you type “Google.com” into your browser, your computer communicates with DNS servers that convert that name into an IP address. But type the IP address directly into your browser, and it works just as well.

Since SOPA would lead to editing American DNS servers' IP lists to insert errors for sites deemed illegal, DeSopa simply checks with foreign DNS servers to find the correct IP address and navigates directly to whatever blocked site the user enters. To avoid incorrect IP addresses in those foreign servers, the program even checks domains with three DNS servers and grabs whichever IP address has at least two agreeing answers. “Similar offshore resolution services will eventually maintain their own cache of websites, without blacklisting, in order to meet the demand created by SOPA,” writes Rizk.

For the last two weeks, users on Reddit have been assembling their own lists of IP addresses for key sites that might be blocked under SOPA, what some of them call the “Emergency List.” Users could simply check the list for the IP address of a blocked site they want to visit and navigate directly to its IP. Or, as the redditors have discussed, they could edit the “hosts” file on their own machines, a locally-stored list that overrides DNS and tells Web browsers which domains correspond with which IP addresses.

Editing hosts files is far from a perfect solution: Because sites' IP addresses frequently change, users would often find certain sites inaccessible and need to go searching for a more current IP. But as DeSopa illustrates, SOPA's thin layer of DNS censorship means users are sure to find a way to keep their locally-stored versions of DNS up to date and visit blacklisted sites.

Just because SOPA's DNS censorship can be defeated, however, doesn't mean the bill won't damage the Internet. Engineers have been warning Congress that monkeying with DNS will make it impossible to implement DNSSEC, a new DNS protocol designed to prevent DNS spoofing attacks that hijack users' browsing and take them to untrusted sites even when they enter the domain of a trusted one. Those security concerns are one reason SOPA's discussion in Congress has been postponed until the new year to allow for more technical research. “No one in Congress intended to break anything,” says Dan Kaminsky, a leading DNS security researcher who has vocally opposed SOPA's proposed changes to the system. “They intended to address a legitimate economic concern. But thanks to the law of unintended consequences, their efforts in DNS filtering run counter to our efforts in DNS authentication.”

The end result of SOPA in its current form, in other words, would be to reinforce the Internet's fundamental security problems without blocking access to copyright-infringing sites for any user savvy enough to use simple software tools. Vint Cerf, one of the founders of the Internet, said as much in his letter to Congress earlier this month, even listing the exact ways DNS filtering would be circumvented. “This collateral damage of SOPA would be particularly regrettable because site blocking or redirection mechanisms are unlikely to make a significant dent in the availability of infringing material and counterfeits online, given that DNS manipulation can be defeated by simply choosing an offshore DNS resolution provider, maintaining one's own local DNS cache or using direct IP address references,” he wrote.

Cerf, after all, helped to design the Internet to be robust above all else, finding its way around physical and digital hurdles to reliably deliver data. Thanks to a few angry geeks, it will likely find its way around any legal hurdles, too.

from the San Francisco Chronicle, 2011-Dec-20, p.D1, by James Temple:

Piracy act debate getting ridiculous

As Congress debates nothing less important than the future of the Internet, our nation's leaders are applying all the intellectual rigor you'd expect from a tween selecting a smart phone.

Her primary philosophical considerations are, of course, what will her friends think and what will her parents pay for? And so it goes for the House Judiciary Committee.

A markup session for the controversial Stop Online Piracy Act last week devolved into high school drama, replete with name calling and a stubborn refusal to let the nerds talk. The debate, if you want to call it that, could resume today.

This column has repeatedly pointed out how the bipartisan bill designed to battle Internet piracy undermines critical legal protections that foster online innovation. Even after some recent improvements, it still grants copyright holders enormous power to cut off access or funds to sites they determine are infringing, with too little judicial oversight or due process.

Technical problems

Meanwhile, a growing chorus of Internet infrastructure experts believe that the specific mechanisms for blocking sites - such as inserting false information into the domain name system - could introduce technical problems and security vulnerabilities.

In other words, the bill could chip away at the underpinnings of the most transformative technology and economic force of our age. But you wouldn't sense the weight of these issues by watching the behavior of our elected officials.

Late last week, Reps. Steve King, R-Iowa, Sheila Jackson Lee, D-Texas, and their colleagues managed to grind the session to a halt as they exchanged taunts that boiled down to: You're boring. Yeah, well, you're offensive! Nu uh, you're out of order!

But the charade of an intellectual debate on the subject didn't stop there. It didn't even start there.

In November, the Judiciary Committee set up a mockery of an open debate by flagrantly stacking the witness deck. One person opposed to the bill, Google policy counsel Katherine Oyama, was left to duke it out against five people from organizations that back the measure, like the Motion Picture Association of America, Pfizer and MasterCard.

Similarly, a major sticking point in the markup session last week was whether the committee should bother to hear from any of the many Internet experts (those "nerds" cited earlier) who could intelligently lay out the security concerns.

Level of ignorance

Rep. Lamar Smith, R-Texas, chairman of the Judiciary Committee and sponsor of the legislation, refused to entertain the idea as he sought to rush the bill onto the floor. Other representatives admitted they didn't understand the technical complexities, but nonetheless felt satisfied with the bill - and apparently their own level of ignorance.

It seems it was enough for them that someone like Motion Picture Association of America Senior Vice President Michael O'Leary said the security concerns were overstated, when he was given a chance to testify. And surely he would know, what with a career spent mostly in government.

Or is it possible that someone like Vint Cerf, considered one of the founding fathers of the Internet, knows a little something worth hearing? He and 82 other "innovators, inventors and engineers" who in various ways helped build the Internet signed a letter strenuously opposing the bill.

"When we designed the Internet the first time, our priorities were reliability, robustness and minimizing central points of failure or control," it read. "We are alarmed that Congress is so close to mandating censorship-compliance as a design requirement for new Internet innovations. This can only damage the security of the network, and give authoritarian governments more power over what their citizens can read and publish."

Late Friday, Smith appeared to reluctantly agree to allow experts to testify, after dozens of amendments and other delays made it clear the bill wouldn't sail through the committee as initially expected.

Questioning methods

Perhaps I'm more dewy-eyed about our political system than I realized, but why wouldn't elected officials at least want to hear what experts have to say on this matter? Even if they're in favor of the ultimate goals of the bill - and no one's out arguing for piracy - couldn't it still be that the methods employed are misguided or dangerous?

It all smacks of the growing strain of anti-intellectualism in this country - and in this Congress. The attitude seems to be: Why would the committee need to hear from any pointy-headed brainiacs about niggling little things like facts and details? Theft is wrong; the media industry says this bill stops theft. Ergo, this bill is right and just.

The real question is, why are the politicians so eager to embrace the media industry's take on this matter?

Here, we come back to our tween picking out that smart phone. In the case of Congress, the media industry seems to be playing the dual roles of influential friend and paying parent. And they're willing to splurge on that shiny new iPhone 4S while the tech industry is only coughing up enough for last year's Android.

The nonpartisan research organization Map Light.org noted that sponsors of the bill have raised four times more money from the media industry than they have from technology sectors: nearly $2 million versus just over $500,000 since the start of the 2010 election cycle.

Aides turn lobbyists

Meanwhile, Politico reported this month that two senior Republican aides who were instrumental in advancing online-piracy bills were just hired by the lobbying firms of the Motion Picture Association and the National Music Publishers' Association. I guess that's what friends are for.

Sen. Ron Wyden, D-Ore., and Rep. Darrell Issa, R-Vista (San Diego County), recently put forth an alternative, the Online Protection and Enforcement of Digital Trade Act. It's designed to narrowly target the blatant infringement by overseas sites that supporters of the Piracy Act have claimed was the sole focus of their bill.

It also hands authority to enforce the measure to the U.S. International Trade Commission, the group already tasked with enforcing international trade rules, rather than the Justice Department and private businesses.

Tech giants' backing

The new bill quickly earned the backing of technology giants strenuously opposed to the original bill, including Google, Facebook, Yahoo, Twitter and others.

"This approach targets foreign rogue sites without inflicting collateral damage on legitimate, law-abiding U.S. Internet companies by bringing well-established international trade remedies to bear on this problem," the companies said in a letter.

But the media industry says it doesn't go far enough.

The proposal "fails to provide an effective way to target foreign rogue websites and goes easy on online piracy and counterfeiting," the motion picture association's O'Leary said in a statement this month. "Hopefully, this draft legislation is not just a delaying tactic to prevent Congress from acting quickly on this serious problem."

Yes, because playing political games when serious issues are at stake would be a horrible thing.

from Fortune, 2011-Dec-21, by Dan Mitchell:

SOPA supporters are cashing the media's checks

Signees to the controversial proposed anti-piracy measure get twice as much campaign cash from media interests as they get from the tech industry, which vehemently opposes the bill.

The media industry, which wants to see the controversial Stop Online Privacy Act (SOPA) passed, has showered cash upon sponsors of the bill, far surpassing the amounts given by the Internet and tech companies that oppose the measure.

Proponents of the bill, which critics say would stifle expression and innovation, skirt due process and possibly create massive technical problems for the Internet, have given more than $1.9 million to SOPA's sponsors since the beginning of the 2010 election season, according to Maplight, a non-profit organization that "reveals money's influence on politics." Tech and Internet firms have given just $525,000 during that time.

The stark difference highlights not only Silicon Valley's relative lack of pull in Washington, but also the vast difference in approaches taken by tech and media when it comes to influencing legislation. Big Media, which has been embedded in national politics since before the silent-film era, relies on old-fashioned high-powered lobbying and money. Silicon Valley often emphasizes grassroots, Internet-based campaigning on behalf of its causes. Hence the loud and ubiquitous online outcry over SOPA, which so far has done little to slow the bill's progress through the House, though it has led to some amendments designed to appease critics, which include firms such as Google (GOOG), Yahoo (YHOO) and Facebook.

So far, not much has changed. A markup session scheduled for Wednesday by the House Judiciary Committee has been postponed, possibly due to scheduling problems related to the continued debate on taxes. The issue will almost certainly blow up again in January.

If the difference between the total political contributions of the two industries appears vast, so are the differences in the cases of many individual House members who have signed on as sponsors of SOPA.

For instance, Republican Lamar Smith of Texas, the Judiciary chairman and lead sponsor of the bill, got $133,050 from the media industry in the two years preceding July 1, according to Maplight. The tech industry has given him $59, 250. His top corporate supporter is Clear Channel Communications, which gave him $26,850. Time Warner Cable (TWC) gave $13,000. (Time Warner owns Fortune.) The National Cable Television Association contributed $16,000. Of his top 10 contributors, four are from the media industry. Smith said recently, "The Stop Online Piracy Act protects the profits, products and jobs that rightly belong to American innovators." (Is the order of those priorities a coincidence?)

Democrat Howard Berman, whose district encompasses Hollywood, got $328,400 from media, and $102,103 from tech and Internet companies. His top contributor was the Directors Guild of America, which gave him $26,899. Five of Berman's top 10 contributors belong to the media industry. Two more are law firms -- Akin Gump and Ziffren Brittenham -- that represent media companies. There is just one tech firm among those 10 -- Oracle (ORCL), which gave him $17,700. That's more than the $16,500 he got from Time Warner (TWX), and less than he got from Disney (DIS), which gave him $24,750.

None of which is to say that SOPA supporters as a group -- or even individually -- are outright bought and paid for by the media industry. Such an assertion would need to be accompanied by evidence of a quid pro quo, and as usual there is no such evidence in this case.

And not all supporters have enjoyed the same comparative levels of media beneficence as Berman or Smith. Bob Goodlatte, Republican of Virginia, got $73,819 from the tech and Internet industries, while media gave him $64,500. His No. 2 giver was Microsoft (MSFT), coming in after the Farm Credit Bureau. Media interests, either as a group or individually, don't even show up among the top givers to John Carter, Republican of Texas, or Jim Cooper, Democrat of Tennessee.

Still, in case after case among House sponsors of the bill, media interests do rank at or near the top, while the presence of tech and Internet interests is usually either minimal or non-existent. That, together with Big Media's lobbying muscle, helps explain why a bill so widely derided for being dangerous actually has a chance of passing at least Judiciary, if not the full House.

from the Washington Post, 2011-Dec-15, by Alexandra Petri:

The nightmarish SOPA hearings

Last night I had a horrifying dream that a group of well-intentioned middle-aged people who could not distinguish between a domain name and an IP address were trying to regulate the Internet. Then I woke up and the Judiciary Committee’s SOPA hearings were on.

It’s exactly as we feared. For every person who appears to have some grip on the issue, there were three or four yelling at him.

“I’m not a nerd,” said Rep. Zoe Lofgren (D- Calif.). “I aspire to be a nerd.”

“I’m a nerd,” said Rep. Darrell Issa (R-Calif.).

If I had a dime for every time someone in the hearing used the phrase “I’m not a nerd” or “I’m no tech expert, but they tell me. . .,” I’d have a large number of dimes and still feel intensely worried about the future of the uncensored Internet. If this were surgery, the patient would have run out screaming a long time ago. But this is like a group of well-intentioned amateurs getting together to perform heart surgery on a patient incapable of moving. “We hear from the motion picture industry that heart surgery is what’s required,” they say cheerily. “We’re not going to cut the good valves, just the bad — neurons, or whatever you call those durn thingies.”

This is terrifying to watch. It would be amusing — there’s nothing like people who did not grow up with the Internet attempting to ask questions about technology very slowly and stumbling over words like “server” and “service” when you want an easy laugh. Except that this time, the joke’s on us.

It’s been a truism for some time that you can tell innovation in an industry has ceased when the industry starts to develop a robust lobbying and litigating presence instead.

As long as there have been new technologies, the entertainment industry has been trying to get them shut down as filthy, thieving pirates. Video cassettes? Will anyone tune into TV again? MP3 players? Why even bother making a record? Digital video recorder that lets you skip ads? That’s a form of theft!

But SOPA is threatening to touch something far more precious than that — the glorious sprawl of the Internet.

SOPA, the Stop Online Piracy Act, is a bill that, in the name of preventing online piracy of copyrighted work, creates a horrifyingly large censorship authority for the Internet. Among other things, it requiresservice providers (which have come out opposing the bill) to block access to entire sites if a user on the site is accused of copyright infringement.

There are dozens of reasons this is wrong. The biggest and most pressing is that not only does the bill not do what it sets out to do, it also creates a horrifyingly blunt instrument to censor the Internet.

One of the underlying assumptions of our system of government has always been that even though people mean well now, that doesn’t mean you give them the authority to do terrible things later. The attorney general now may use SOPA in only the most narrowly tailored of cases. But as the Founders knew, it is unwise to give people more powers than you would like them to use.

There ought to be a law, I think, that in order to regulate something you have to have some understanding of it. And when people are saying things like, “This is just the rogue foreign Web sites” and “This only targets the bad actors” and “So you want universities to host illegal pirated versions of copyrighted content?,” it’s enough to make you claw out large fistfuls of your hair. No! No! Nobody is hosting anything. This bill would require service providers to cut off access to entire Web sites where users are deemed to be engaging in copyright infringement, not take down stolen content they posted themselves. That’s already against the law. But no one seemed to be able to express this.

When you have a signed letter from the engineers responsible for creating the Internet pointing out that this bill would jeopardize our cybersecurity, balkanize the Internet and create a climate of uncertainty that would stifle innovation, it seems odd to ignore it. As a general rule, when the people saying that this will have a horrible, chilling impact on something are the ones who created that thing in the first place, and the people who are saying, “Oh, no, it’ll be fine, it only targets the bad actors” are members of the Motion Picture Association of America, it seems obvious whose opinion you should heed.

And the rush to legislate struck many of the committee members as odd. “Haste makes waste,” Rep. Hank Johnson (D-Ga.) noted. Rep. Dan Lungren (R-Calif.) asked, “Why is there this rush to judgment?,” noting, “I have rarely been part of a committee operation where we have not had . . . technical experts to deal with major concerns that have arisen.”

This is enough to paralyze a person with dread.

When Rep. Jared Polis (D-Colo.) proposed an amendment to exempt colleges and not-for-profit institutions from the unfunded mandate of having to shut off access to certain sites — like freedom, Internet censorship isn’t free — it was shot down 23 to 9. When he proposed another amendment to target the restrictions not at IP addresses (which, as he noted, can be dynamic and assigned to toasters) but at domain names, it fell just as easily.

This afternoon, the hearings continue, with even more amendments. But at the rate it’s going, it looks likely that SOPA will make it to the floor.

I just want the nightmare to be over.

from IDG News / PC World, 2011-Dec-15, by Grant Gross:

House Committee Appears Headed Toward Approving SOPA

The U.S. House of Representatives Judiciary Committee slowly moved toward approval of the controversial copyright enforcement bill Stop Online Piracy Act (SOPA), although the panel was able to debate only a handful of amendments Thursday.

As of 5:30 p.m. the committee, by wide margins, had voted to reject six amendments meant to address concerns by many members of the technology community. The hearing will continue into Friday and maybe longer.

The committee rejected an amendment offered by Representative Darrell Issa that would have stripped out controversial provisions in the bill targeting search engines and Internet service providers.

SOPA would allow the U.S. Department of Justice to seek court orders requiring Internet service providers to filter out the domain names and requiring search engines to block the websites that are accused of infringing copyright. Issa's amendment would have killed the provisions related to the domain name system.

The committee voted 22-12 against the Issa amendment, in a vote that could foreshadow strong support for SOPA in the committee. The Issa amendment would have removed some of the most contentious parts of SOPA, including concerns that the legislation would cause problems with security in the DNS, supporters argued.

If the committee eventually votes to approve SOPA, the legislation would go to the House floor. The legislation would also have to pass through the Senate before going to President Barack Obama for his signature or veto.

SOPA would empower the DOJ and copyright holders to target news sites that link to allegedly infringing sites, Issa said. Once U.S. authorities start blocking links and censoring Web content, "you start a snowball effect to which there is no end," he added.

SOPA's search engine provision would be ineffective, added Representative Zoe Lofgren, a California Democrat. Even if U.S. search engines block links to foreign websites, it would be simple for Web users to find other search engines, she said. "The fact that we would try to disappear a site on a search engine doesn't disappear the site," she said.

SOPA supporters said the other provisions of the bill, which would allow the DOJ and copyright holders to seek court orders blocking payment processors and online advertising networks from doing business with foreign sites accused of infringing copyright, would not be effective enough to fight foreign websites that sell infringing products.

Under U.S. law, there's a "gaping loophole" shielding foreign websites from the reach of the DOJ, said Representative Bob Goodlatte, a Virginia Republican. "While it continues to be a tremendous, transformational medium, the Internet has also made it easier than ever in the history of the world to steal other's ideas and works," he said.

Representative Lamar Smith, the committee chairman and main sponsor of SOPA, said new action is needed to deal with so-called rogue websites based overseas. "The problem of rogue websites is real, immediate and increasing," Smith said. "It harms companies across the spectrum. And its scope is staggering. The resultant economic losses run into the hundreds of billions of dollars each year."

U.S. residents have the "most to lose" if Congress does not act, because the U.S. produces more intellectual property than any other country, Smith said. More than 400 companies and groups have voiced support for SOPA, supporters said.

Opponents of SOPA also listed hundreds of people and groups that have raised concerns.

Issa, Representative Jason Chaffetz, a Utah Republican, and other opponents of SOPA asked Smith to delay the markup of the bill and hold a hearing featuring Internet engineers and their views on whether the bill would harm Internet security. The committee has hosted only one hearing on SOPA, and no engineers or security experts testified, Chaffetz said.

Dozens of Internet security experts have raised concerns about the bill and its effect on implementation of DNSSEC, a set of applications designed to secure the domain name system, Chaffetz said. "Maybe we ought to ask some nerds about what this really does," he said to other committee members. "If you don't know what DNSSEC is, you don't know what you're doing."

There's time to have another hearing, Issa added. Copyright infringement is "not a new problem," he said.

Smith declined to slow the process down. "I have every intention of going forward today, tomorrow and however long it takes," he said.

The markup hearing will continue into Friday and potentially into the new year after the House returns from its holiday break. The committee, faced with more than 60 proposed amendments to the bill, was able to get through fewer than 10 of them by 5:30 p.m. Thursday in a hearing that began at 10 a.m.

At the beginning of the hearing, Lofgren insisted on the committee's clerk reading the entire 71-page substitute amendment offered by Smith late Monday. The public didn't have enough time to digest the amendment before Thursday's hearing began, she said.

The committee hadn't voted on Smith's substitute amendment as of late Thursday.

Late in the day, Representative Sheila Jackson-Lee, a Texas Democrat, stirred up controversy when she called a tweet by committee member Representative Steve King, an Iowa Republican, "offensive." King, watching the hearing on television, posted on Twitter that he was so bored by Jackson-Lee's questions that he was "killing time by surfing the Internet."

The committee took about 15 minutes to sort out demands by Republicans that Jackson-Lee take back the word, "offensive." She finally did, instead calling King's tweet "impolitic and unkind."

from Politico, 2011-Dec-15, by Jennifer Martinez:

SOPA bill markup exposes congressional divide

The gaping divide separating House Judiciary Committee members on the Stop Online Piracy Act was abundantly clear as a marathon markup of the measure got under way Thursday.

The dissension didn't break down by party. Reps. Darrell Issa of California and Jim Sensenbrenner of Wisconsin were among the Republican committee members who criticized the anti-piracy bill championed by House Judiciary Committee Chairman Lamar Smith (R-Texas).

Several members from both parties — including Issa and Reps. Zoe Lofgren (D-Calif.) and Dan Lungren (R-Calif.) — argued that the bill was being pushed through too fast without input from technical experts on what it would mean for the structure of the Internet.

But Smith and Reps. Bob Goodlatte (R-Va.), John Conyers (D-Mich.) and Howard Berman (D-Calif.) said something needs to be done now to protect rights holders from sites that profit from offering illicit content and knockoff products.

In his opening statement, Smith argued that SOPA is needed because the Digital Millennium Copyright Act only provides limited relief for rights holders when it comes to rogue foreign sites.

For example, Smith said DMCA doesn't protect trademark holders and consumers from sites that sell counterfeit goods such as knockoff pharmaceuticals. It also doesn't address the problem that online pirates use ad services and payment processors to fund the sites, he said.

“Laws equip U.S. authorities and right holders to take action against criminals who operate within our borders,” Smith said. “But there is no parallel authority that permits effective action against criminals who operate from abroad.”

Ranking member Conyers, a co-sponsor of SOPA, noted that a broad swath of labor unions, businesses and academics also support the legislation. He questioned the motives of opponents.

“All we're trying to do here is stop online piracy. Since when did opposition get so fierce against this? What could be behind the motives of people or organizations that don't think stopping online piracy is something that we need to deal with?” Conyers said.

Lofgren said the bill would undermine the structure of the Internet, arguing that it would employ the kind of technical measures used by repressive governments to stifle free speech. It would “lead to a Balkanization of the Internet,” she said.

But Berman, whose district encompasses Hollywood, countered that there's a big difference between enforcing intellectual property rights “and seeking to suppress political conduct, political speech and dissent.”

Sensenbrenner, meanwhile, warned that the domain name-related provisions would potentially confuse the Internet security protocol DNSSEC so it could “not tell the difference between sites that have been blocked by law enforcement and those that have been sabotaged by hackers.”

Issa said he worried about the “little guy” Web entrepreneur who could be put out of business if the Justice Department oversteps its bounds and wrongly goes after the domain name of his or her site when it's actually legitimate.

“They're going to be out of money,” he said. “They're going to be destroyed.” Supporters countered that the Justice Department would have to obtain a court order before a domain name could be taken down.

from Slate, 2011-Dec-8, by James Losey and Sascha Meinrath:

The Internet's Intolerable Acts
You should be very afraid of a pair of bills that threaten Internet freedom.

The United States of America was forged in resistance to collective reprisals—the punishment of many for the acts of few. In 1774, following the Boston Tea Party, the British Parliament passed a series of laws—including the mandated closure of the port of Boston—meant to penalize the people of Massachusetts. These abuses of power, labeled the “Intolerable Acts,” catalyzed the American Revolution by making plain the oppression of the British crown.

More than 300 years later, the U.S. Congress is considering bills that would lead to collective reprisals against online communities. The Senate’s PROTECT IP Act and the Stop Online Piracy Act in the House are supposed to address copyright infringement and counterfeiting. In reality, they are so technically impractical that they do little to address these problems. They would, however, undermine participatory democracy and human rights, which is why these bills have garnered near-universal condemnation from both human rights groups and technologists.

The interconnected nature of the Internet fostered the growth of online communities such as Tumblr, Twitter, and Facebook. These sites host our humdrum daily interactions and serve as a public soapbox for our political voice. Both the PROTECT IP Act and SOPA would create a national firewall by censoring the domain names of websites accused of hosting infringing copyrighted materials. This legislation would enable law enforcement to take down the entire tumblr.com domain due to something posted on a single blog. Yes, an entire, largely innocent online community could be punished for the actions of a tiny minority.

If you think this scenario is unlikely, consider what happened to Mooo.com earlier this year. Back in February, the Department of Justice and Department of Homeland Security seized 10 domains during a child-porn crackdown called “Operation Protect Our Children.” Along with this group of offenders, 84,000 more entirely innocent sites were tagged with the following accusatory splash page: “Advertisement, distribution, transportation, receipt, and possession of child pornography constitute federal crimes that carry penalties for first time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution." Their only crime was guilt by association: They were all using the Mooo.com domain.

SOPA would go even further, creating a system of private regulation to shut down websites that are accused of not doing enough to prevent infringement. Keep in mind that these shutdowns would happen before a site owner could defend himself in court—SOPA could punish sites without even establishing whether they are guilty of the charges brought against them.

In January 2010, Hillary Clinton launched the State Department’s Internet Freedom initiative, stumping for open access to information worldwide. Though Secretary Clinton has said that “there is no contradiction between intellectual property rights protection and enforcement of expression on the Internet,” PROTECT IP and SOPA create mutually exclusive trajectories for these two priorities. These bills are driven by technologically naive thinking that it’s possible to censor information without affecting freedom of speech. SOPA even goes so far as to make the key circumvention tools used by human rights advocates and democracy organizers throughout the Middle East illegal. While we’re certain that SOPA’s authors did not mean to craft a bill tailor-made to support the future Qaddafis and Mubaraks of the world, that is precisely what they’ve done.

Rather than blocking online copyright infringement, legislation like SOPA and Protect IP would instigate a data obfuscation arms race, making legitimate law enforcement efforts all the more difficult. If the United States decides that copyright infringement must be stopped at any cost, the required censorship regime will depend on ever more invasive practices, such as monitoring users’ personal Web traffic. This counterproductive cat-and-mouse game of censorship and circumvention would drive savvy scofflaws to darknets while increasing surveillance of less technically proficient Internet users.

Given that the Intolerable Acts sparked a revolution, it should be no surprise that this proposed legislation has generated a massive outcry in the United States. However, this attempt to unilaterally censor the Internet has spurred worldwide opposition, with several dozen international organizations signing a letter stating that “[t]hrough SOPA, the United States is attempting to dominate a shared global resource.” Last month, the European Parliament adopted a resolution underscoring “the need to protect the integrity of the global internet and freedom of communication by refraining from unilateral measures to revoke IP addresses or domain names.”

As participants in the Internet community, we must defend against collective reprisals that undermine our rights to access, privacy, and freedom of expression online. SOPA and the PROTECT IP Act are fundamentally incompatible with a free society and with the founding principles of the United States. This truth should be self-evident: Human rights should never be subjugated to copyright.

from the Washington Post online, 2011-Nov-16, by Alexandra Petri:

Stop SOPA

Is this ignorance or malice?

It's called the Stop Online Piracy Act. It's currently being discussed by the House Judiciary Committee. And a similar measure has already passed the Senate Judiciary Committee.

Either the people behind the bill don't realize the horrible possibilities it would leave open, or they're doing it on purpose. I'm not sure which possibility is more frightening.

The phrase “a bill that would open up unprecedented tools for online censorship is currently being discussed by a group of middle-aged people who did not grow up with the Internet” has the same chilling effect on me — and most Internet watchers — as the phrase “your child has just been handed to a drunk bear on a tightrope over a pit of molten lava.” Our palms begin to sweat. We start dashing off letters to everyone you can think of.

And we're right to be terrified.

Generally, the denizens of Silicon Valley fight amongst themselves. Google challenges Facebook. Yahoo snipes at AOL. So when all of them join forces to express their deep, fundamental concern at a proposed measure, you know it's serious.

SOPA certainly is. It is a bill designed to stop online piracy. It is a way of doing that, in the sense that killing the man in the seat next to you is a way to stop his coughing. The tools this bill would make available to censors are absolutely petrifying. If it passed, a copyright holder could shut off an entire web site by complaining to law enforcement that one of its users infringed on his property. The Guardian notes: “At present, if Facebook, You Tube or other leading websites are found to be holding copyright material without permission, then they are told to take it down. Sopa would make it possible for the US to block the website” (italics mine). Not only that, but search engines could be forced to stop listing blacklisted web sites, and services such as PayPal and credit card companies would be required to cut off their access to cash.

A better name for it might be the Bring Internet Censorship To America Act, but that doesn't quite have the same ring to it. How about the Force Search Engines To Censor Their Results Act? Or the Shut Down Entire Websites Over Individual Users' Alleged Copyright Violations Act? Those would all be equally accurate.

I am sympathetic to the desires of content creators to protect what they have wrought. I am one myself. But there are — as Google noted in its testimony to the House Judiciary Committee today — better ways of stopping bad actors and copyright violators than this brutal blunt instrument. Cut off their advertising sources, for instance. Flag individual violators. But this bill goes far beyond that, requiring search engines to remove whole websites from search results, and forcing service providers to cut off access to websites at the drop of a copyright complaint.

This isn't even throwing the baby out with the bathwater. This is bludgeoning the baby repeatedly with a sledgehammer and then throwing out the whole bathroom. This is so far beyond what is required that to call it Orwellian would be putting it mildly.

The coverage that presents this as a battle of lightweight digital Davids against massive corporate Goliaths somewhat overstates the case. Arrayed in its favor are a number of heavy hitters, among them the Motion Picture Association of America, Disney, Viacom, and TimeWarner. But the forces against it are formidable as well, if less entrenched. Nearly all of Silicon Valley. Google, Mozilla, Facebook, Twitter, Yahoo, LinkedIn, and AOL have joined forces against the bill.

No one disputes that content creators need protection. But so does the Internet, and the individual users whom the bill would leave liable for thousands of dollars in fines for something as minor as singing a copyrighted song on Facebook. “But people will be able to challenge these complaints in court!” Have you looked at the price of litigation lately?

Never has the online generation gap been so potentially lethal. The people deciding the fate of this bill overwhelmingly grew up before the Internet. Sure, some of them tweet now, but that may not be enough for them to take sufficiently seriously what's at stake.

So little is going right in the economy these days. One of the few exceptions is the web sector, where innovation and entrepreneurship has borne spectacular fruit.

But more than that, we have spent years delivering powerful, stirring speeches about how free our Internet is and how, unlike other nations that boast elaborate arrays of online censorship, people here can access information freely without the government interposing itself. With this bill, that could change. It is far too blunt an instrument. Even if only used by wise, kind, and temperate individuals, it poses the risk of a serious chilling effect on the kind of collaborative, transformative, creative speech that has made the Internet thrive.

So I hope it's ignorance. Ignorance can be combated before this bill reaches the floor.

Stop SOPA. There are better ways of doing this.

from the Wall Street Journal, 2011-Dec-16, by Paul Sonne and Steve Stecklow:

U.S. Restricts U.A.E. Firm for Web Filter Sale to Syria

The Department of Commerce is placing restrictions on a person and a company in the United Arab Emirates for supplying Syria with Internet-filtering devices made by California-based Blue Coat Systems Inc.

On Thursday, Commerce said it put Waseem Jawad and the Ras Al Khaimah-based company Info Tech, also known as Infotec, on a list of people and institutions determined to "have engaged in activities contrary to U.S. national security and/or foreign policy interests."

The measure restricts Mr. Jawad and Info Tech from receiving or transferring items that fall under U.S. export controls. Export licenses would be required, which likely would be denied by the U.S. government, according to Commerce Department officials. Neither Mr. Jawad nor the company could be reached to comment.

A résumé for a Waseem Jawad recently removed from LinkedIn described him as a U.A.E. network engineer and manager who studied at a Syrian technology school. It said he was most recently a regional manager for a U.A.E. tech service provider. A Facebook page for a Wassem Jawad who studied at the same Syrian school was also removed recently.

The Commerce Department action is part of a probe looking into how a set of at least 13 Blue Coat devices ended up censoring the Internet in Syria, a country subject to strict U.S. trade embargoes. Syrian authorities have been brutally cracking down on uprisings in the country for months.

"It is vital that we keep technology that can be used to further the repression of the Syrian people out of the hands of the Syrian government," said Eric L. Hirschhorn, undersecretary for industry and security. "This investigation is ongoing and additional enforcement actions are likely."

Another Commerce official said, "One of the focuses of our investigation will be to determine which companies had knowledge that these devices were going to Syria."

Blue Coat first acknowledged the devices had ended up in Syria in an interview with The Wall Street Journal in October. The Sunnyvale, Calif.-based company shipped the appliances—which can block websites or record when people visit them—to a distributor in the U.A.E., believing they were destined for a department of the Iraqi government.

But the devices never went to Iraq. According to the Commerce Department, about three days after the distributor transferred ownership of the Blue Coat shipment to Mr. Jawad, the devices were sent to Syria. There, they have been used to block Syrian Web users from accessing a number of Web addresses, including political-opposition sites.

A spokesman for Blue Coat said the company is cooperating fully with the investigation.

Blue Coat, a provider of Web security products, announced on Dec. 9 it entered into a definitive agreement to go private in a transaction valued at $1.3 billion.

from RIA Novosti, 2011-Dec-14, by Maria Kuchma:

Russian internet watchdog proposes bills to fight child porn, online extremism

Russia's League of Internet Security proposed on Wednesday creating a blacklist of websites containing child pornography and “other prohibited information” and oblige internet providers to block such sites.

“There are some people who believe that internet freedom should be absolute,” said Channel One newsreader Pyotr Tolstoi, a member of the Russian Public Chamber and the League's board of trustees.

“But I personally believe that freedom for perverts on the internet is a luxury that we cannot allow to exist,” Tolstoi said at a news conference in Moscow, adding that “immediate action” needed to be taken.

The League's proposal followed its announcement that it had broken up an international ring of 130 alleged pedophiles circulating material via the internet. The League's president, Konstantin Malofeyev, described the ring as “largest in the history of the Russian internet."

Denis Davydov, the League's executive director, said the proposed bills also provide for tracking down “extremist” materials on the web, raising fears among the Russian media and internet community that they could make it easier for the authorities to crack down on dissent under the guise of fighting child abuse.

The League, whose board of trustees is headed by Communications Minister Igor Shchyogolev, proposed creating a special public organization involving experts, representatives of internet providers and search engines to monitor the web in search of suspicious content.

In line with the amendments, which have yet to be submitted to parliament, websites containing child porn are to be blocked as soon as they are identified, while those containing “other prohibited information,” including suspected extremist materials, can only be closed following a court ruling.

Andrei Soldatov, a security analyst from the Agentura think tank, described the amendments as “excessive.

He pointed out that the Communications Agency, Roscomsvyaz, has just launched a special system intended to reveal extremist materials on the internet

“It's not up to public organizations to decide what can be considered pornography and blacklist websites,” he said.

“State structures, whose activities are restricted by law, should deal with this issue, and this should be done based on a court decision,” he said. “Why should a public organization take on the functions of law enforcement?”

Internet control to increase?

The League's initiative follows a number of recent moves and proposals by senior Russian officials and the Federal Security Service (FSB) on internet regulation.

Many internet users and opposition activists have described the moves as an attempt by the state to “introduce censorship” of the internet in order to prevent the spread of protest sentiments amid strong public criticism of the December 4 parliamentary elections.

Numerous videos from polling stations were posted on the internet following the vote, featuring what protesters have described as wide-spread vote fraud in favor of United Russia. The alleged violations triggered mass street protests across the country last week, including a major rally in downtown Moscow last Saturday, which gathered between 25,000 and 50,000 plus protesters, according to various estimates.

The management of Russia's most popular social network Vkontakte reported last week that the Federal Security Service (FSB) had requested them to deactivate accounts of groups that contained posts calling for street protests. The company said it had rejected the request while promising to keep blocking the accounts of specific users who have explicitly called for public disorder. The FSB has declined to comment on the reported request.

Another proposal regarding internet security has been put forward by senior Interior Ministry official Alexei Moshkov, who said anonymous accounts should be outlawed on social networks and online forums to prevent internet fraud, blackmailing and child abuse.

“If you are a just and law abiding person, why would you want to hide?” Moshkov, who heads the ministry's bureau in charge of technical services, said in an interview with the government daily Rossiiskaya Gazeta. “There is no censorship on the internet,” he said.

He also said the police would not “seek and arrest anyone for criticism” of the authorities.

Interior Minister Rashid Nurgaliyev later dismissed the proposal, calling it “nonsense.”

'Rational regulation'

Nikolai Patrushev, the head of the Russian Security Council and a former FSB chief, was reported on Wednesday to have called for the “rational regulation of the internet” in an interview with the Argumenti I Fakti daily.

“Attempts to prevent personal communication are counterproductive, and even immoral,” he said, “but we cannot ignore that the internet is being used by criminals and terrorist gangs.”

“Rational regulation of the internet should take place in Russia, as happens in the United States, China and many other countries,” he added.

Newsreader Tolstoi dismissed media allegations on Wednesday that the amendments proposed by the League could be used to increase pressure on dissent.

“I understand that Bolotnaya Square is more interesting for you,” he told journalists, referring to the site of last Saturday's mass vote protest rally in Moscow. “But we are a different organization, and this is not our remit.”

from TechDirt.com, 2011-Nov-30, by Mike Masnick:

MPAA Pretends To Capitulate On SOPA, Will Offer Changes For 'Legitimate Concerns'
from the yeah,-ok dept

This is barely even worth mentioning, but it's making some news, so we'll point it out. The MPAA's point man on SOPA/PIPA, Michael O'Leary, told the press today that they're willing to "tone down" the legislation in response to the "legitimate concerns" raised:

“We will come forward with language that will address some of the legitimate concerns” of technology companies that have opposed the Stop Online Piracy Act in the House, and a similar Protect I.P. Act in the Senate, Mr. O'Leary said.

First of all, this is nothing new. Rep. Lamar Smith, the official sponsor of the bill had already been on record using that exact same phrase: "legitimate concerns." The thing is, what they consider to be "legitimate concerns" are basically none of the concerns that many people have raised.

The more telling point in all of this is the outright admission that the MPAA is the one writing the bill. We've seen some reports making the rounds where defenders of the bill keep insisting "this bill isn't being written by Hollywood," but in the quote above, you can see that O'Leary is confirming that the MPAA is providing the language. The NYTimes report makes this point even clearer:

He said those who were pushing the far-reaching antipiracy legislation have been huddling with Congressional staff members from both parties and both the House and Senate in the last few days, in an effort to answer some objections raised by Google, Yahoo and others who say the bills reach too far.

Notice who's not included in those discussions? That's right. Everyone who raised objections. How the hell do you address concerns if you don't actually include the people who are concerned? The answer is you don't, and the whole thing is a sham. O'Leary also points out that most of the tech folks still won't be satisfied, which basically is an admission that he doesn't actually care about the concerns. From there he starts making stuff up:

“It's all rhetoric and there are no proposals,” he said of the position staked out by the opponents to the bills. “From where I sit, it's hard to see that as anything but a pretext for running out the clock and preserving the status quo.”

The thing is, O'Leary knows that's untrue. He knows damn well that plenty of folks have presented or are working on alternative proposals. It's just that when they're not allowed in the discussion at all, it's kinda difficult to have those proposals heard. Meanwhile, as we noted earlier, Senator Wyden has already said he's working on an alternative bill. Pretending otherwise is simply false.

from TechDirt.com, 2011-Nov-14, by Mike Masnick:

First Amendment Expert Floyd Abrams Admits SOPA Would Censor Protected Speech, But Thinks It's Okay Collateral Damage
from the not-really dept

Supporters of SOPA/PROTECT IP have been going absolutely nuts in pushing the claim that famed First Amendment lawyer Floyd Abrams has said SOPA does not violate the First Amendment. This wasn't a surprise. First of all, the MPAA is a client of Abrams, as are various other Hollywood trade groups. He didn't write the letter on his own behalf, but was paid by these groups to write the letter. As such, he's speaking as a paid advocate for them, not as an objective independent observer. Given that, it's really quite incredible how timid the letter actually is. The fact that it takes fourteen pages to hem, haw and equivocate away the clear problems of SOPA is quite telling.

While the argument goes on for a while, the really telling part is late in the letter, where Abrams actually admits that SOPA would result in the censorship of protected speech, something that can't be denied, but which many supporters of the bill have refused to admit:

Regardless of the particular standard or definition of foreign infringing sites, court-approved remedies under the Stop Online Piracy Act may result in the blockage or disruption of some protected speech. As discussed above, the bill provides a range of injunctive relief is available, with a court making the final determination as to whether and how to craft relief against a website operator or owner or third party intermediaries. When injunctive relief includes blocking domain names, the blockage of non-infringing or protected content may result.

Setting aside the odd sentence construction ("the bill provides a range of injunctive relief is available"), this really is the key point. Abrams then spends another couple pages trying to explain why it's okay to block protected speech, properly noting that caselaw has said it's okay when that speech is "incidental." What he fails to do is explain how the speech blocked here would be "incidental." And that's really the whole crux of the matter. The exceptionally broad definitions in the bill mean that it won't block just incidental free speech, but wide open forums of free speech. Again, remember that under this bill, it's likely that YouTube would not exist because Viacom sees it as "dedicated to theft of US property" under the definitions in the bill. And under the law Universal Music would make the case that the Internet Archive and a variety of blogs and forums are "dedicated to theft of U.S. property." This would be about shutting down huge forums of free speech, not just incidental free speech.

Abrams ignores all of that.

The letter also presents a long argument about how laws apply on the internet. Well, duh. That's just sleight of hand. It's a favorite bogus talking point of the industry: that those who are worried about overreaching laws really believe that there should be no rule of law online. Everyone agrees that our laws apply online. What we question is how they're applied in an overly broad manner that conflicts with free speech rights. Narrowly targeted laws that seek to stop actually illegal content -- libel or infringement -- are reasonable. Broad legislation that will take down significant non-infringing speech is where we have a problem. Unfortunately, Abrams sullies his distinguished legacy in the space, by more or less brushing aside such concerns in favor of his big clients.

Abrams is also somewhat selective and misleading in his choice of citations. For example, as "evidence" of the right to completely shut down websites over copyright claims, he "cites" the first of ICE's domain seizure "cases," a couple times. While he eventually notes that the legality of these seizures is currently being litigated, he doesn't mention that until after he's brought it up a couple times, and leaves out the fact that the citations he notes in support of such a right refer to a one-sided (and error-filled) affidavit presented by ICE and rubber-stamped by a magistrate judge -- rather than a ruling in any sort of adversarial hearing. Again, this is not a balanced letter on his viewpoints, but a lawyer advocating for some of his biggest clients.

In discussing the specifics of SOPA, Abrams is careful to point to the letter of the law, refusing to acknowledge the actual impact of the law. For example, he notes that "the bill neither compels nor prohibits speech or communication by the four entities regarding any measures they take." This is technically true, but misleading in the extreme. While it does not specifically prohibit speech directly, it is set up in a way that the only way to avoid liability is to massively prohibit non-infringing speech. That's the issue, one totally ignored by Abrams. The vague standards for liability -- the equivalent of how the Great Firewall of China works -- makes it such that in order to avoid liability sites will certainly overblock. While Abrams can brush this off because the law does not directly compel a site to block speech, he's not being intellectually honest in pretending that the actual impact will not block speech.

It's no surprise that the MPAA and its supporters are waving this flag around -- it's about the only serious legal support they've got on this issue. And Abrams is a big and respected name -- but his own letter seems to indicate the failings of his own argument, and the complete avoidance of even digging into the massive expansion of what is dubbed "dedicated to theft," shows why this bill is problematic. When even your biggest "supporter" has to skirt around the issue, admit that the bill would suppress protected speech, and then try to hand-wave it away... you know the bill is bad, bad news. Either way this seems like a sad move by Abrams, who has been taking a number of missteps after a long and distinguished career. Between supporting this and his oddly ill-informed attack on Wikileaks (in which he insisted Wikileaks had done things it had not done), Abrams seems to be putting his legacy at risk.

from National Public Radio, 2011-Nov-15, by Eyder Peralta:

Is Lying On The Internet Illegal?

Today, a subcommittee of the Committee On The Judiciary heard some fascinating testimony about the Computer Fraud and Abuse Act (CFAA). (We know what that sounds like, but bear with us.)

The hearing, titled "Cyber Security: Protecting America's New Frontier," really focused on big cyber threats to the country's infrastructure, but there was another juicier question that came out of the hearing: The way the Justice Department wants to interpret a current law, lying on the Internet would amount to a crime.

Richard Downing, deputy chief of the Computer Crime and Intellectual Property Section at the Department of Justice, argued that in order to properly protect the country, the part of the CFAA that says a person must exceed their "authorized access" to break the law should include a violation of the terms of service.

Here's how Downing put it in his testimony:

"These are just a few cases, but this tool is used routinely. The plain meaning of the term 'exceeds authorized access,' as used in the CFAA, prohibits insiders from using their otherwise legitimate access to a computer system to engage in improper and often malicious activities. We believe that Congress intended to criminalize such conduct, and we believe that deterring it continues to be important. Because of this, we are highly concerned about the effects of restricting the definition of 'exceeds authorized access' in the CFAA to disallow prosecutions based upon a violation of terms of service or similar contractual agreement with an employer or provider."

In English? When you sign up for a Web service, a dating one or even to attain the ability to comment on NPR.org, you usually agree to a long terms of service that we bet most people don't even read. The way the DOJ wants the law interpreted means breaking any of those terms would constitute a crime.

Orin Kerr, a professor of Law at George Washington University, also testified at the hearing and put it more concretely:

"In the Justice Department's view, the CFAA criminalizes conduct as innocuous as using a fake name on Facebook or lying about your weight in an online dating profile. That situation is intolerable. Routine computer use should not be a crime. Any cybersecurity legislation that this Congress passes should reject the extraordinarily broad interpretations endorsed by the United States Department of Justice."

CNET, which broke this story yesterday, reports that CFAA "has been used by the Justice Department to prosecute a woman, Lori Drew, who used a fake MySpace account to verbally attack a 13-year old girl who then committed suicide. Because MySpace's terms of service prohibit impersonation, Drew was convicted of violating the CFAA. Her conviction was later thrown out."

CNET also reports on opposition to the interpretation:

A letter (PDF) sent to the Senate in August by a left-right coalition including the ACLU, Americans for Tax Reform, the Electronic Frontier Foundation, and FreedomWorks warns of precisely that. "If a person assumes a fictitious identity at a party, there is no federal crime," the letter says. "Yet if they assume that same identity on a social network that prohibits pseudonyms, there may again be a CFAA violation. This is a gross misuse of the law."

Downing defended the government's position in his prepared statement. Downing said while the government appreciates the concern that a wide interpretation of the law would allow prosecutions of "mere" violations of a website's terms of service, "we are concerned that that restricting the statute in this way would make it difficult or impossible to deter and address serious insider threats through prosecution."

Update at 3:39 p.m. ET. An Example:

Just as an example, here's a bit from Facebook's Terms of Service:

1. You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission.
2. You will not create more than one personal profile.
3. If we disable your account, you will not create another one without our permission.

from TorrentFreak.com, 2011-Nov-17,

EU Adopts Resolution Against US Domain Seizures

The European Parliament has adopted a resolution which criticizes domain name seizures of “infringing” websites by US authorities. According to the resolution these measures need to be countered as they endanger “the integrity of the global internet and freedom of communication.” With this stance the European Parliament joins an ever-growing list of opposition to the Stop Online Piracy Act.

Starting in 2010, US authorities have used domain name seizures as a standard tool to take down websites that are deemed to facilitate copyright infringement.

Despite fierce criticism from the public, legal experts and civil liberties groups, taking control of domain names is now one of the measures included in the pending Stop Online Piracy Act (SOPA), legislation designed to give copyright holders more tools to protect their rights against foreign sites.

Opposition to SOPA has been swelling in recent days, and today the European Parliament adds its voice by heavily criticizing the domain seizures that are part of it.

A resolution on the EU-US Summit that will be held later this month stresses “the need to protect the integrity of the global internet and freedom of communication by refraining from unilateral measures to revoke IP addresses or domain names.”

If SOPA does indeed become law the US would be able to shut down domains worldwide, as long as they are somehow managed by US companies. This includes the popular .com, .org and .net domains, and thus has the potential to affect many large websites belonging to companies in EU member states.

This can lead to problematic situations.

During one of the seizure rounds earlier this year, US authorities took the domain name Rojadirecta, which belongs to the Spanish company Puerto 80. The site in question had been declared legal in Spain by two courts, but it only took a simple warrant for ICE to take it offline.

Puerto 80 is currently involved in a legal battle in the US to get their domain back, and has reportedly suffered significant losses in traffic and revenue from their streaming portal.

This notice appears on seized sites.

If SOPA passes and these seizures become common practice, thousands of companies will face the threat of losing their domains.

The RIAA and MPAA for example pointed out that they consider the Russian social networking site VKontakte and the Chinese media portal Xunlei as potential targets. These two companies employ hundreds, if not thousands of people, and both are even considering going public on the American stock exchange.

By adopting a resolution against domains seizures the European Parliament recognizes the dangerous precedent the pending SOPA legislation would set, and it wouldn't be a surprise if more foreign criticism follows.

No country should have the ability to simply take over international domain names, and surely the US would feel the same if this plan was put in motion by a foreign country. Or as some 60 press freedom and human rights advocate groups put it in their letter to the US representatives:

“This is as unacceptable to the international community as it would be if a foreign country were to impose similar measures on the United States.”

from TechCrunch.com, 2011-Nov-24, by Robin Wauters:

EU Court Rules ISPs Can't Be Forced To Filter Out Illegal Content

The European Court of Justice this morning ruled that content owners can not strong-arm Internet service providers (ISPs) into filtering out copyright-infringing content.

This case has its origin in a dispute between ISP Scarlet and SABAM, a Belgian management company responsible for authorizing the use by third parties of the musical works of authors, composers and editors. In 2004, the right-holders group established that users of Scarlet's services were downloading such musical works from its catalogue by means of peer-to-peer (p2p) file-sharing networks.

Belgium's Court of First Instance ordered Scarlet, on pain of a periodic penalty, to bring those copyright infringements to an end by making it impossible for its customers to send or receive in any way electronic files – a filter, in other words. Scarlet appealed the decision, claiming the ruling was incompatible with EU law as well as the e-Commerce Directive.

Indeed, EU law says national authorities must not adopt measures which would require an ISP to carry out general monitoring – let alone filtering – of the information that it transmits on its network.

Thus, Europe's highest court this morning ruled:

The Court finds that, in adopting the injunction requiring Scarlet to install such a filtering system, the national court would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other.

Accordingly, the Court's reply is that EU law precludes an injunction made against an internet service provider requiring it to install a system for filtering all electronic communications passing via its services which applies indiscriminately to all its customers, as a preventive measure, exclusively at its expense, and for an unlimited period.

The European Court of Justice said the filtering system would also be liable to infringe the fundamental rights of an ISP's customers, namely their right to protection of their personal data and their right to receive or impart information.

The court also said that while intellectual property rights are enshrined in EU law, there is “nothing whatsoever in the wording of the Charter or in the Court's case-law to suggest that that right is inviolable and must for that reason be absolutely protected”.

Common sense, really, but always good to see a court agree with it.

from the Telegraph of London, 2011-Nov-18, by Victoria Ward and Nick Collins:

EU bans claim that water can prevent dehydration
Brussels bureaucrats were ridiculed yesterday after banning drink manufacturers from claiming that water can prevent dehydration.

EU officials concluded that, following a three-year investigation, there was no evidence to prove the previously undisputed fact.

Producers of bottled water are now forbidden by law from making the claim and will face a two-year jail sentence if they defy the edict, which comes into force in the UK next month.

Last night, critics claimed the EU was at odds with both science and common sense. Conservative MEP Roger Helmer said: “This is stupidity writ large.

“The euro is burning, the EU is falling apart and yet here they are: highly-paid, highly-pensioned officials worrying about the obvious qualities of water and trying to deny us the right to say what is patently true.

“If ever there were an episode which demonstrates the folly of the great European project then this is it.”

NHS health guidelines state clearly that drinking water helps avoid dehydration, and that Britons should drink at least 1.2 litres per day.

The Department for Health disputed the wisdom of the new law. A spokesman said: “Of course water hydrates. While we support the EU in preventing false claims about products, we need to exercise common sense as far as possible."

German professors Dr Andreas Hahn and Dr Moritz Hagenmeyer, who advise food manufacturers on how to advertise their products, asked the European Commission if the claim could be made on labels.

They compiled what they assumed was an uncontroversial statement in order to test new laws which allow products to claim they can reduce the risk of disease, subject to EU approval.

They applied for the right to state that “regular consumption of significant amounts of water can reduce the risk of development of dehydration” as well as preventing a decrease in performance.

However, last February, the European Food Standards Authority (EFSA) refused to approve the statement.

A meeting of 21 scientists in Parma, Italy, concluded that reduced water content in the body was a symptom of dehydration and not something that drinking water could subsequently control.

Now the EFSA verdict has been turned into an EU directive which was issued on Wednesday.

Ukip MEP Paul Nuttall said the ruling made the “bendy banana law” look “positively sane”.

He said: “I had to read this four or five times before I believed it. It is a perfect example of what Brussels does best. Spend three years, with 20 separate pieces of correspondence before summoning 21 professors to Parma where they decide with great solemnity that drinking water cannot be sold as a way to combat dehydration.

“Then they make this judgment law and make it clear that if anybody dares sell water claiming that it is effective against dehydration they could get into serious legal bother.

EU regulations, which aim to uphold food standards across member states, are frequently criticised.

Rules banning bent bananas and curved cucumbers were scrapped in 2008 after causing international ridicule.

Prof Hahn, from the Institute for Food Science and Human Nutrition at Hanover Leibniz University, said the European Commission had made another mistake with its latest ruling.

“What is our reaction to the outcome? Let us put it this way: We are neither surprised nor delighted.

“The European Commission is wrong; it should have authorised the claim. That should be more than clear to anyone who has consumed water in the past, and who has not? We fear there is something wrong in the state of Europe.”

Prof Brian Ratcliffe, spokesman for the Nutrition Society, said dehydration was usually caused by a clinical condition and that one could remain adequately hydrated without drinking water.

He said: “The EU is saying that this does not reduce the risk of dehydration and that is correct.

“This claim is trying to imply that there is something special about bottled water which is not a reasonable claim.”

from WJXT Jacksonville, 2011-Dec-1:

Teen stopped at airport for design on purse
17-year-old missed flight to Jacksonville after agents inspected gun replica

JACKSONVILLE, Fla. - A teenage girl's sense of style got her in trouble at the airport.

Vanessa Gibbs, 17, claims the Transportation Security Administration stopped her at the security gate because of the design of a gun on her handbag.

Gibbs said she had no problem going through security at Jacksonville International Airport, but rather, when she headed home from Virginia.

"It's my style, it's camouflage, it has an old western gun on it," Gibbs said.

But her preference for the pistol style didn't sit well with TSA agents at the Norfolk airport.

Gibbs said she was headed back home to Jacksonville from a holiday trip when an agent flagged her purse as a security risk.

"She was like, 'This is a federal offense because it's in the shape of a gun,'" Gibbs said. "I'm like, 'But it's a design on a purse. How is it a federal offense?'"

After agents figured out the gun was a fake, Gibbs said, TSA told her to check the bag or turn it over.

By the time security wrapped up the inspection, the pregnant teen missed her flight, and Southwest Airlines sent her to Orlando instead, worrying her mother, who was already waiting for her to arrive at JIA.

"Oh, it's terrifying. I was so upset," said Tami Gibbs, the teen's mom. "I was on the phone all the way to Orlando trying to figure out what was going on with her. It was terrifying. I don't ever want to go through it again."

Vanessa and her mom said it's hard to believe anyone could mistake the design on the purse for a real gun because it's just a few inches in size and it's hollow, not to mention Vanessa has taken it on planes before.

"I carried this from Jacksonville to Norfolk, and I've carried it from Norfolk to Jacksonville," Vanessa said. "Never once has anyone said anything about it until now."

TSA isn't budging on the handbag, arguing the phony gun could be considered a "replica weapon." The TSA says "replica weapons have prohibited since 2002."

It's a rule that Vanessa feels can't be applied to a purse.

"Common sense," she said. "It's a purse, not a weapon."

A TSA official at JIA said it's not that uncommon for passengers to wear something that could be considered a gun replica, but the official encourages everyone to check the prohibited items list, which can be found online or at the airport before going through security.

from Forbes online, 2011-Nov-22, by Alex Knapp:

Librarians Protest Penguin Decision To Limit E-Book Lending
The American Library Association is protesting Penguin's decision to limit library lending of its e-books – many of which libraries had already paid for.

“Librarians are the secret masters of the world. They control information. Don't ever piss one off.”
- Spider Robinson

Penguin Group USA's decision to limit library lending of its new e-books, as well as halt library lending of all of its Kindle editions, took many librarians by surprise. However, they're not taking this decision lying down. The American Library Association has just issued a statement demanding that library access to the e-books impacted by this decision be restored.

“If Penguin has an issue with Amazon, we ask that they deal with Amazon directly and not hold libraries hostage to a conflict of business models,” said ALA President-elect Maureen Sullivan. “This situation is one more log thrown onto the fire of libraries' abilities to provide access to books – in this case titles they've already purchased. Penguin should restore access for library patrons now.”

Sci-fi author and electronic freedom activist Cory Doctorow noted on BoingBoing that there's a bigger issue at stake in this dispute. “The fact that Amazon is capable of doing this — the fact that books can be revoked after they're sold — is a vivid demonstration of the inevitably disastrous consequences of building censorship tools into devices.”

I have to agree with this. I'd freely admit that I like Amazon a great deal, and I adore my Kindle, which is never out of my sight. But the fact that books already purchased by libraries can be locked down like this is troubling, to say the least.

from the Washington Post, 2011-Nov-15, by Cecilia Kang:

Web giants at odds with Chamber of Commerce over piracy bill

Some of Silicon Valley's biggest names are threatening to leave the U.S. Chamber of Commerce over a bill that would make Web companies liable for pirated content that appears on their sites.

Last month, Yahoo quietly quit the powerful business trade group, which supports the legislation. Google and the Consumer Electronics Association, which represents 2,200 firms, are warning they may do the same.

“Given the fact that their mission is to grow the American economy, sponsoring legislation that would harm one sector that is perhaps the brightest spot of the economy is short-sighted,” said CEA senior vice president Michael Petricone. “It makes one wonder what their membership will be like in the future.”

When asked whether CEA would drop its membership, he replied: “We are comfortably reassessing groups we are members of.”

Spats between the Chamber and its members rarely spill out into public view. And it's unclear how an exodus of technology firms would impact the lobbying group's considerable weight in Washington. The group does not disclose the names of its members, many of whom pay substantial amounts for the Chamber's lobbying prowess.

The legislation could punish Web firms if copyrighted movies, songs or software appear on their sites. But it would address long-standing concerns from Hollywood studios, record labels and publishing houses, which lose $135 billion in revenues each year from piracy and counterfeiting, according to Chamber estimates.

The Chamber would not comment specifically on the decisions of individual members. But it argued that the proposals moving through the House and Senate would improve the quality of media content online and thus benefit Web firms.

“This is a common-sense way forward that is good for the whole industry,” said Steve Tepp, chief counsel on intellectual property for the Chamber's Global IP Center.

Many Silicon Valley companies agree that piracy is a problem but say the legislation goes too far. Web giants including Facebook, Google, Yahoo, LinkedIn, eBay, and Mozilla on Tuesday co-wrote a letter to Senate and House lawmakers urging Congress to reconsider the measures. They fear the proposals would invite lawsuits and empower law enforcement to shut down their operations if a copyrighted movie or song appeared on their sites without their authorization.

The House Stop Online Piracy Act, introduced by Rep. Lamar Smith (R-Tex.), will be debated in a House Judiciary Committee hearing Wednesday. A similar bill introduced by Sen. Patrick J. Leahy (D-Vt.), with 40 co-sponsors, was approved by the Judiciary Committee in September.

Novelist Lisa Scottline, author of “Look Again” and dozens of other titles, said new laws are necessary because current enforcement isn't preventing illegal copies of her work from being exchanged on the Web.

“It's appallingly easy and makes it very difficult for any writer trying to make it,” she said.

Opponents of the measures say the new law should protect Web firms that do their best to remove illegal content. And as the bills move closer to approval, Silicon Valley companies have ramped up their lobbying efforts. Investors in companies such as Twitter and Foursquare have recently come to Washington to try to persuade lawmakers to vote against the legislation.

“This is an issue every Web company has to care about, and Google cares about any issue that threatens the nature of the Internet and how it operates,” said a person familiar with Google's thinking, who spoke on the condition of anonymity because of the ongoing debate involving the bill. The person added that Google is “considering options” that could include canceling its membership with the Chamber.

A Yahoo spokeswoman declined to comment on its decision to cancel its membership with the Chamber. People familiar with the company's thinking say the Chamber's advocacy of anti-piracy laws was the final straw in a series of decisions that didn't benefit the firm. They spoke on the condition of anonymity because of Yahoo's business relationships with current Chamber members.

Facebook is a member of the Chamber but declined to comment about the group's position. Twitter is not a member.

from the Washington Post, 2011-Nov-16, by Cecilia Kang:

SOPA, controversial online piracy bill, gains support as lobbying intensifies

Several lawmakers expressed support Wednesday for a controversial bill aimed at curbing online piracy as lobbying over the issue reached a fever pitch.

In a House Judiciary Committee hearing on a bill proposed by committee Chairman Lamar Smith (R-Tex.), a bipartisan group of lawmakers said new laws are needed to help media outlets, software makers and retailers fight the illegal distribution of movies, songs and software.

Smith's Stop Online Piracy Act is aimed at foreign sites dedicated to pirated material, but Web giants such as Google and Facebook and telecommunications firms say his proposal goes too far, making them responsible for shutting down bad actors.

“The problem of rogue Web sites is real, immediate and widespread. It harms all sectors of the economy,” Smith said during the hearing.

Several lawmakers expressed concern that the illegal exchange of copyrighted movies, software and music is draining U.S. media companies and that current laws don't give law enforcement enough power to stop bad actors.

And some questioned the motives of Web giants fighting the legislation.

Opposition is “really about the bottom line,” said Rep. Mel Watt (D-N.C.). “Sites that specialize in stolen goods attract lots of users and lots of ads.”

Supporters and critics of the measure ramped up their lobbying efforts ahead of the hearing.

Google, Facebook, Yahoo and other Web giants launched a media blitz on Wednesday with full-page newspaper ads urging lawmakers to vote against the proposal. Vague language in the bill would force them to shut down the domain names of infringing sites and would lead to lawsuits, they said. Telecommunications firms, including Verizon Communications, complained that the bill would force them to stop Internet traffic that contained illegal content.

Supporters of the legislation, ranging from Hollywood studios to pharmaceutical companies, argued during the hearing that they are losing an estimated $135 billion a year in pirated material.

“Fundamentally, this is about jobs,” said Michael O'Leary, who represented the Motion Picture Association of America at the hearing. He argued that not just actors and directors are affected; piracy also has a ripple effect on thousands of businesses that are associated with the movie business.

Smith has said he hopes to move his legislation to markup before the end of the year. A similar Senate bill passed the Judiciary Committee in September.

The House proposal came about suddenly, critics say, and without consultation from high-tech and telecommunications firms.

“Inexplicably, and almost overnight, SOPA has morphed into a full-on assault against lawful U.S. Internet companies,” said Markham C. Erickson, executive director of NetCoalition, a group representing Web firms and public interest groups opposed to the law. “This makes no sense to us, nor will it to the millions of Internet users who depend on it for communications, commerce and democracy.”

A Verizon executive said in an interview Wednesday that the legislation puts too much of the burden on Internet service providers to create new technologies to monitor and stop illegal consumer use of Web content.

“We have a number of concerns with the bill,” said the executive, who spoke on the condition of anonymity because of the sensitive nature of the legislative push. “And we have been shut out of the process in writing this, even though it is very technical and requires us to use a range of technically difficult things to enforce this legislation.”

from Time Magazine online, 2011-Nov-7, by Jerry Brito:

Congress's Piracy Blacklist Plan: A Cure Worse than the Disease?

Last month, Yahoo quit the U.S. Chamber of Commerce, one of the most powerful lobbies in Washington, over the Chamber's support of a Senate anti-piracy bill known as the PROTECT IP Act. Now Google is considering doing the same over the Stop Online Piracy Act (SOPA), a companion bill recently introduced in the House. These high-profile walkouts are a sign of what's at stake.

For the content industry—including Hollywood and the recording industry—SOPA and PROTECT IP are necessary to fight foreign copyright infringers that usually stand outside the reach of U.S. law. Domestic domains, such as those ending in .com or .net, can already be seized by the government with a court order. However, U.S. authorities don't have the power to seize foreign domains, and such domains are often used by sites that illegally stream movies and sports or offer music for free downloads.

SOPA and PROTECT IP allow the government to target foreign sites by essentially disappearing them. How the bills accomplish the disappearing act is among the issues that rankle the Internet companies.

The Domain Name System (DNS) is what translates easy-to-remember website names, like TIME.com, to their true numerical Internet addresses, like 216.35.74.104. When you type in a website name, your computer queries a DNS server to get the numerical address. Most consumers use a DNS server provided by their ISP, though some use third-party servers like the Google Public DNS.

SOPA and PROTECT IP would allow prosecutors to get a court order declaring a foreign site as infringing, and the order could then be used to require DNS service providers to block the allegedly infringing sites. This means they will essentially be required to keep a blacklist of rogue foreign sites, and when a user tries to get the numerical address for a blacklisted site, the server would have to return either nothing or an error page. As far as the user is concerned, the site will have disappeared.

There are many reasons to dislike these anti-piracy bills—from overly broad definitions of what counts as infringement, to how they may shift the burden of policing from content owners to the service providers—yet the proposed meddling with the Internet's Domain Name System is the most alarming.

First, blacklisting and disappearing sites will likely do little to stop committed pirates. For one thing, a blacklisted site will still exist and will still be accessible from its numerical address.

A quick Google search shows that there already are pirate streaming sites known only by their numerical IP address. There are also browser plugins that will translate a rogue site's name into its numerical address even if the DNS server doesn't (although SOPA would criminalize the distribution of such add-ons). And a committed infringer could also simply switch to using a foreign DNS server not bound by the U.S. blacklist.

As for casual infringement, it's true that some users may well simply give up after an unresponsive query. On the margin, therefore, DNS filtering will no doubt reduce piracy. But what we have to ask ourselves is, at what cost? And that cost is legitimizing government blacklists of forbidden information.

At a moment when Secretary of State Hillary Clinton is urging world governments to keep their hands off the Internet, creating a blacklist would send the wrong message. And not just to China or Iran, which already engage in DNS filtering, but to liberal democracies that might want to block information they find naughty. Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities' privacy? Or what if France blocked American sites it believed contained hate speech? We forget, but those countries don't have a First Amendment.

The result could be a virtually broken Internet where some sites exist for half the world and not for the other. The alternative is to leave the DNS alone and focus (as the bills also do) on going after the cash flow of rogue websites. As frustrating as it must be for the content owners who are getting ripped off, there are some cures worse than the disease.

from the Los Angeles Times, 2011-Oct-26, by Jon Healey:

Technology: A bipartisan attempt to regulate the Internet?

Leaders of the House Judiciary Committee introduced a beefed-up version Wednesday of the Senate Judiciary Committee's proposed Protect IP Act, offering Hollywood new tools to go after foreign piracy hotbeds -- as well as opening online storage, content-sharing and auction sites in the U.S. and elsewhere to attack from copyright and trademark owners.

The 78-page Stop Online Piracy Act (HR 3261) boasts a rare degree of bipartisan support, reflecting the combined influence of such backers as the U.S. Chamber of Commerce and the Motion Picture Assn. of America. But it drew an even sharper outcry from tech-industry advocates than the Protect IP Act.

Both measures would let federal prosecutors seek court orders shutting down foreign websites that are dedicated to piracy. Those orders would require Internet service providers, online advertisers and payment systems to redirect traffic and dollars away from the sites.

There's broad support for cutting off the financial lifeline for piracy hotbeds. But the bills' requirement that ISPs try to block their customers from reaching those sites has drawn opposition from an array of technology companies and networking engineers, who warn that it would encourage consumers to use alternate domain-name servers. That, in turn, would fragment the domain-name system and stymie efforts to make the Net less hospitable to malware.

Tech companies are also concerned about the power the Senate bill would grant to copyright holders to seek injunctions against sites they believe are dedicated to infringing activities -- a description that Viacom's attorneys could well have applied to YouTube before it started automatically checking uploads against a database of copyrighted works. But the private right of action in the House bill makes the Senate provision seem tame by comparison.

Labeling their approach a "market-based system" to protect consumers and property owners, the authors of HR 3261 would require advertisers, credit card companies and other payment processors to stop providing ads or payment services to any site that a copyright or trademark holder claimed was "dedicated to the theft of U.S. property." No court would need to be involved unless the operator of the site filed a counter-notice asserting that it didn't fit the bill's definition of a dedicated infringer.

That definition is so broad, it could snare all sorts of cloud-based services, said Markham Erickson, executive director of the NetCoalition tech advocacy group. The problem starts with the bill's focus on Web "sites," which as a technical matter can be a single page within a domain. An eBay listing could be considered a "site," as could a Facebook timeline, a Flickr page or a Dropbox folder.

Making matters worse, the bill broadens the notion of what it means to be "dedicated to the theft of U.S. property." In addition to sites that are primarily designed or marketed for infringing uses, the bill's definition includes sites whose operators "avoid confirming a high probability" that they will be used to infringe or who had at any previous time promoted infringements.

According to Erickson, the only way for ad networks and payment processors to respond to a notification about a supposedly offending site would be to block service to the entire domain. Hence, "you can shut down YouTube, you can shut down internet commerce sites, you can shut down hosting sites" for infringements on just a fraction of their pages, Erickson said.

The MPAA disagreeswith Erickson's view of what constitutes a "site," arguing that there could be no confusion between what lawmakers are targeting and legitimate online services. But the liability the House bill would create for operators who "avoid confirming a high probability" of infringing uses implies a new duty on Web sites and services to police themselves and their users. Such a duty, Erickson said, would reverse the safeguards provided by the Digital Millennium Copyright Act in 1998. Those safeguards have been crucial to cloud-based services and providers of online platforms.

"This bill is a direct attack on technology," Erickson said. "Technology that allows for sharing of informtation ... anything that could foster infringement can be covered by this bill. To me, that's the headline of this. This is a dramatically different approach from what we've seen."

David Sohn, senior policy council of the centrist Center on Democracy and Technology, offered a similar assessment:

This bill raises serious red flags. It includes the most controversial parts of the Senate's Protect IP Act, but radically expands the scope. Any website that features user-generated content or that enables cloud-based data storage could end up in its crosshairs. ISPs would face new and open-ended obligations to monitor and police user behavior. Payment processors and ad networks would be required to cut off business with any website that rightsholders allege hasn't done enough to police infringement. The bill represents a serious threat to online innovation and to legitimate online communications tools.

Advocates for copyright and trademark owners disagreed, calling the bill an appropriate response to the serious threat posed by overseas piracy hotbeds.

Cary Sherman, head of the Recording Industry Assn. of America, had this to say about HR 3261, which was introduced by House Judiciary Committee Chairman Lamar Smith (R-Texas):

This legislation is a first step towards a brighter day when these rogue offshore websites can no longer duck accountability under U.S. laws, all the while providing a critical boost to the marketplace for legal digital music services.  The Smith bill sensibly requires relevant parties to work together to address the collateral damage caused to everyone involved in legitimate online commerce and appropriately complements other voluntary efforts already underway.  Notably, the bill also allows reasonable flexibility for ISPs in determining the most appropriate technological manner for blocking illegal sites and provides ample legal safeguards for sites accused of infringement.  

Here are a few more examples from supporters:

“Websites that blatantly steal the creativity and innovation of American industries violate a fundamental right to property. Operators of rogue sites threaten American jobs, endanger consumer safety, and undermine the vitality of the online marketplace."

-- Thomas J. Donohue, chief executive of the U.S. Chamber of Commerce

 “Online theft in the U.S. and overseas threatens the independent film industry and must be stopped. For the Independents, who finance films by pre-selling the rights to distributors worldwide, the drastic damage caused by online theft is measured both in films that cannot be produced and in lost returns on investment in films that have been produced.  Independents account for 70% of all U.S. film production, so every independent film that can't be financed and produced has a dramatic impact on jobs and the economy.  We appreciate the House Judiciary Committee's serious bipartisan work in bringing this bill forward to address both rogue websites and felony streaming, and we look forward to working with them to ensure that strong measures are adopted.”

-- Jean Prewitt, chief executive of the Independent Film &Television Alliance

“The Internet is an important tool which has opened opportunities for our industry from distribution to marketing to connecting with fans, but there is a segment of web operators who are criminals, pure and simple, and we must do more to stop them. Current laws tie the hands of both law enforcement and judicial personnel in many instances, to the detriment of American business and consumers. Legislation introduced today in the U.S. House would help fix that, enabling our justice system to go after criminal operatives."

-- David Israelite, chief executive of the National Music Publishers Assn.

The most interesting thing to me about the bill is that, after more than a year of talks among lawmakers, copyright and trademark interests and tech-industry lobbyists, Smith offered a bill that pushes the sides even further apart. The measure isn't likely to run into the usual partisan snarl that kills so many pieces of legislation these days; copyright issues don't break down along party lines. Instead, this one will test the relative clout of copyright and trademark holders against Google, Silicon Valley entrepreneurs and the hands-off-the-Internet crowd. There's consensus to be had on combating the likes of The Pirate Bay, but it's not to be found in HR 3261.

from ArsTechnica.com, 2011-Oct-26, by Nate Anderson:

House takes Senate's bad Internet censorship bill, tries making it worse

Imagine a world in which any intellectual property holder can, without ever appearing before a judge or setting foot in a courtroom, shut down any website's online advertising programs and block access to credit card payments. The credit card processors and the advertising networks would be required to take quick action against the named website; only the filing of a “counter notification” by the website could get service restored.

It's the world envisioned by Rep. Lamar Hunt (R-TX) in today's introduction of the Stop Online Piracy Act in the US House of Representatives. This isn't some off-the-wall piece of legislation with no chance of passing, either; it's the House equivalent to the Senate's PROTECT IP Act, which would officially bring Internet censorship to the US as a matter of law.

Calling its plan a “market-based system to protect US customers and prevent US funding of sites dedicated to theft of US property,” the new bill gives broad powers to private actors. Any holder of intellectual property rights could simply send a letter to ad network operators like Google and to payment processors like MasterCard, Visa, and PayPal, demanding these companies cut off access to any site the IP holder names as an infringer.

The scheme is much like the Digital Millennium Copyright Act's (DMCA) "takedown notices," in which a copyright holder can demand some piece of content be removed from sites like YouTube with a letter. The content will be removed unless the person who posted the content objects; at that point, the copyright holder can decide if it wants to take the person to court over the issue.

Here, though, the stakes are higher. Rather than requesting the takedown of certain hosted material, intellectual property owners can go directly for the jugular: marketing and revenue for the entire site. So long as the intellectual property holders include some “specific facts” supporting their infringement claim, ad networks and payment processors will have five days to cut off contact with the website in question.

The scheme is largely targeted at foreign websites which do not recognize US law, and which therefore will often refuse to comply with takedown requests. But the potential for abuse—even inadvertent abuse—here is astonishing, given the terrifically outsized stick with which content owners can now beat on suspected infringers.

Blockade

One thing private actors can't do under the new bill is actually block a site from the Internet, though it hardly matters, because the government has agreed to do it for them. The bill gives government lawyers the power to go to court and obtain an injunction against any foreign website based on a generally single-sided presentation to a judge. Once that happens, Internet providers have 5 days to “prevent access by its subscribers located within the United States to the foreign infringing site.”

The government can also go after anyone who builds a tool designed for the "circumvention or bypassing" of the Internet block. Such tools already exist as a result of the US government's ongoing campaign to seize Internet domain names it believes host infringing content; they can redirect visitors who enter the site's address to its new location. The government has already asked Web browser makers like Mozilla to remove access to these sorts of tools. Mozilla refused, so the new bill just tries to ban such tools completely. (Pointing your computer's browser to a foreign DNS server in order to view a less-censored Internet still appears to be legal.)

Search engines, too, are affected, with the duty to prevent the site in question “from being served as a direct hypertext link.” Payment processors and ad networks would also have to cut off the site.

Finally, and for good measure, Internet service providers and payment processors get the green light to simply block access to sites on their own volition—no content owner notification even needed. So long as they believe the site is “dedicated to the theft of US property,” Internet providers and payment processors can't be sued.

"Industry norms"

The House bill is shockingly sympathetic to a narrow subsection of business interests. For instance, buried deep in the back of the >70-page document is a requirement that the US Intellectual Property Enforcement Coordinator prepare a study for Congress. That study should analyze “notorious foreign infringers” and attempt to quantify the “significant harm inflicted by notorious foreign infringers.” (Talk about assuming your conclusions before you start.)

The report, which is specifically charged to give weight to the views of content owners, requests a set of specific policy recommendations that might “encourage foreign businesses to adopt industry norms to promote the protection of intellectual property globally.” Should the bill pass, the US government would be explicitly charged with promoting private “industry norms”—not actual laws or treaties—around the world.

In the request for the report, we can also see the IP maximalist lobby preparing for its next move: shutting off access to US capital markets and preventing companies from "offering stock for sale to the public" in the US.

Call it what it is

Not all censorship is bad—but we need to have an honest discussion about when and how to deploy it, rather than wrapping an unprecedented set of censorship tools in meaningless terms like "rogue site," or by calling a key section of the new bill the "E-PARASITE Act."

You don't have to support piracy—and we don't—to see the many problems with this new approach. Just today, the RIAA submitted to the US government a list of "notorious markets." As part of that list, the RIAA included "cyberlockers" like MegaUpload, which are "notorious services" that "thumb their noses at international laws, all while pocketing significant advertising revenues from trafficking in free, unlicensed copyrighted materials."

It's not hard to imagine how long it would take before such sites--which certainly do host plenty of user-uploaded infringing content--are targeted under the new law. Yet they have a host of legal uses, and cyberlockers like RapidShare have been declared legal by both US and European courts.

Not surprisingly, the new bill is getting pushback from groups like NetCoalition, which counts Google, Yahoo, and small ISPs among its members. "As leading brands of the Internet, we strongly oppose offshore 'rogue' websites and share policymakers' goal of combating online infringement of copyrights and trademarks," said executive director Markham Erickson in a statement.

"However, we do not believe that the solution lies in regulating the Internet and comprising its stability and security. We do not believe that it is worth overturning a decade of settled law that has formed the legal foundation for all social media. And finally, we do not believe that it is worth restricting free speech or providing comfort to totalitarian regimes that seek to control and restrict the Internet freedoms of their own citizens."

Dozens of law professors have also claimed the original PROTECT IP Act, which contains most of the same ideas, is unconstitutional. But the drumbeat for some sort of censorship is growing louder.

from TechDirt.com, 2011-Oct-27, by Mike Masnick:

E-PARASITES Bill: 'The End Of The Internet As We Know It'
from the this-gets-worse-and-worse dept

We already wrote about the ridiculously bad E-PARASITES bill (the Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation Act), but having now had a chance go to through the full bill a few more times, there are even more bad things in there that I missed on the first read-through. Now I understand why Rep. Zoe Lofgren's first reaction to this bill was to say that "this would mean the end of the Internet as we know it."

She's right. The more you look at the details, the more you realize how this bill is an astounding wishlist of everything that the legacy entertainment gatekeepers have wanted in the law for decades and were unable to get. It effectively dismantles the DMCA's safe harbors, what's left of the Sony Betamax decision, puts massive liability on tons of US-based websites, and will lead to widespread blocking of websites and services based solely on accusations of some infringement. It's hard to overstate just how bad this bill is.

And, while its mechanisms are similar to the way China's Great Firewall works (by putting liability on service providers if they fail to block sites), it's even worse than that. At least the Chinese Great Firewall is determined by government talking points. The E-PARASITES bill allows for a massive private right of action that effectively lets any copyright holder take action against sites they don't like. (Oh, and the bill is being called both the Stop Online Piracy Act (SOPA) and E-PARASITES (which covers the PROTECT IP-like parts of the bill, SOPA refers to the larger bill that also includes the felony streaming part).

Some of the key problems with the bill, beyond what we discussed yesterday:

• While supporters of the bill still continue to insist that this bill is only targeted at foreign infringers, that's false. Part of the bill focuses on foreign infringers -- the part that allows the Attorney General to kill websites. But the private right of action section has no such restriction. Instead, it allows copyright holders to effectively kill any site they'd like. You have to dig down into the details to see this, but let's pull out the key sections to see. The act, in section 104, defines sites that are "dedicated to the theft of US property" as including any "US-directed site" that:

  is taking, or has taken deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation of section 501 or 1201 of title 17, United States Code;

  If that sounds massively confusing, you're right. But what it's saying, in the most twisted language possible, is that if it's probable that a site used in the US (note no restriction to just foreign sites here) can be used to infringe, and that site fails to take some sort of action against the "high probability" that the site can be used to infringe, then it can be declared dedicated to the theft of US property. This turns both the DMCA safe harbors and the Supreme Court's Sony Betamax ruling completely on their heads. In effect, it appears to be saying that if you choose not to self-police your site for infringement -- i.e., putting up filters, or proactively monitoring content for infringement -- you can be declared in violation of the law... at which point a court can order all ad networks and payment processors to automatically stop doing business with you.

  Think of all the sites this could effect. Twitter, Facebook, YouTube, Tumblr, SoundCloud, Ebay, Flickr, Wikipedia, Craigslist, Wordpress -- basically any site that has any user-generated content. If they don't proactively filter or monitor their content, they could be at risk of a claim that they took "deliberate actions to avoid confirming a high probability" that their sites could be used to infringe... and thus they could be subject to an action by a private party that strips them of both ad revenue and the ability to process any payments.

  Remember how Monster Cable -- massive supporters of this bill -- declared both Craigslist and eBay as being dedicated to infringement? Under this bill, a company like Monster could take action against those sites, putting a tremendous burden on them.

• The definitional problems don't stop there. Separate from the ridiculous definition above, this act would also declare a site "dedicated to theft of U.S. property," if it is "primarily designed" in a way that "engages in, enables, or facilitates" a violation of copyright law. Those last two points are ridiculously broad. "Enables" infringement? "Facilitates"? That's practically the entire internet. The primary design of YouTube, Twitter, Facebook, etc. all "enable" or "facilitate" infringement.
• While some reporters claimed that the "private right of action" was taken out of this bill, or even "softened," nothing could be further from the truth. The details show that the private right of action is significantly worse in this bill. What changed is that in PROTECT IP, private copyright holders could go to court to force payment processors and ad networks to stop dealing with sites they accuse. Under E-PARASITES, before they go to court, they first have to send a notification, very similar to a DMCA takedown notice. But, of course, as we've seen with the DMCA, while it's "voluntary" to comply, if you don't comply you lose safe harbors -- so nearly everyone complies. That means this private right of action almost certainly will lead to ad networks and payment processors cutting off any site they receive a notification on -- no matter how legitimate. And, while the bill does allow for a counternotification process, unlike the DMCA, there is no requirement that the payment processors and ad networks restore service to anyone who files a counternotice, after a given period of time (absent a lawsuit). In other words: a copyright holder could issue a bogus claim that a site is dedicated to infringement, and the payment processor and ad network could pull the plug on the site... and even if a counternotice is filed, those services have no obligation to bring back service.

  Again, using our Monster Cable example, it could force all payment processors to no longer allow payments on Craigslist or eBay, and even if those sites filed counternotices, the service providers would be under no obligation to turn those things back on. And just think of the massive, irreparable harm if legitimate sites lose both the ability to accept payments and to have ads for just a few days? And while there is liability for those who file false notices, as we've seen with the DMCA, such provisions are rarely, if ever, enforced -- and generally are interpreted to only apply in cases of extreme misrepresentation.

• As noted above, the private right of action establishes an astoundingly broad new standard for what's considered infringing. Beyond user-generated content sites, pretty much any cloud computing service can be deemed "dedicated to the theft of US property," if they choose not to filter and monitor the content being sent through the cloud. Any of the online locker services are in serious trouble if this bill becomes law. Amazon's and Google's music services would have to monitor your uploads and try to stop infringement to avoid liability. Box.net and Dropbox would likely have to monitor what files you're storing to avoid liability. It's honestly that insane.
• Supporters of the bill, beyond falsely claiming that it's just focused on foreign sites, are also claiming that this bill does not target such sites. An aide to the House Judiciary Committee, who supports the bill, claimed, "Sites that host user content -- like YouTube, Facebook and Twitter -- have nothing to be concerned about under this bill." But that's demonstrably false. Perhaps this aide is unaware that Viacom is still in the middle of a $1 billion lawsuit claiming that YouTube was dedicated to infringement. Under the definitions in this bill, YouTube would absolutely have been liable, and likely would have been shut down years ago. In fact, Viacom never would have had to sue. It would have just made use of the notification process, and kept any and all advertising and payment processing from the site... and voila, dead YouTube, without the benefit of a judge reviewing the case (and, need we remind the House Judiciary Committee, that so far the judge has sided with YouTube?).
• The bill would be red meat to any foreign government that censors its internet. China, Iran, Saudi Arabia are going to love this. The mechanisms for censorship are quite similar. Under E-PARASITES, service providers have to proactively block to prevent liability. China's Great Firewall works the exact same way: by threatening ISPs with liability if they don't block content harmful to Chinese citizens. Replace harmful to Chinese citizens with "a high probability" of being used for infringement... and you've got E-PARASITES.
• Another change between this bill and the Senate's PROTECT IP is that this bill calls out "search engines" more directly, rather than "information location tools," as in the Senate bill. While that may seem to be narrower, the definition of a search engine is ridiculously broad (of course).

  The term ``Internet search engine'' means a service made available via the Internet that searches, crawls, categorizes, or indexes information or Web sites available elsewhere on the Internet and on the basis of a user query or selection that consists of terms, concepts, categories, questions, or other data returns to the user a means, such as a hyperlinked list of Uniform Resource Locators, of locating, viewing, or downloading such information or data available on the Internet relating to such query or selection.

  Under this definition, Techdirt could be declared a search engine under this law. After all, we take "questions" and queries from readers, and often return stories that link elsewhere on the internet. Yikes!
• As highlighted above, there are all sorts of definitional problems with the bill. And you can tell how insane things get with definitions when the authors of this bill even go so far as to define the word "including." I'm not joking:

  INCLUDING.--The term "including" means including, but not limited to.

  This is the kind of mess we're dealing with.

About the only good thing is that the insanity and out-and-out censorship and hindering of the internet that this bill provides appears to have scared off co-sponsors of the bill. Despite a massive lobbying effort from the US Chamber of Commerce and the MPAA (among some others), Rep. Lamar Smith was only able to wrangle up eleven co-sponsors. For a bill of this nature, this is woefully low. Even more surprising is that they couldn't even get Rep. Mel Watt to co-sponsor the bill, despite being the ranking Democrat on the IP subcommittee of the House Judiciary Committee. Instead, they had to settle for Howard Bermand, the Representative from Disney. In other words, it appears that many Congressional reps have heard the massive concerns of the public, technologists, entrepreneurs, investors, artists, human rights activists, and many others who are quite afraid of how this bill will break the internet. And that means that it can only help to continue to speak out and reach out to your representatives about how awful this bill is, and how much harm it would do.

from Reuters, 2011-Nov-2, by Adrian Croft and Georgina Prodhan, with additional reporting by Peter Apps, Michael Holden and writing by Peter Apps:

UK, U.S. talk tough on web freedom at cyber talks

LONDON - Britain and the United States strongly rejected calls from China and Russia for greater Internet controls on Tuesday at a major conference on the future of cyberspace, although Western states too faced accusations of double standards.

While Western states worry about intellectual property theft and hacking, authoritarian governments are alarmed at the role the Internet and social media played in the protests that swept the Arab world this year.

In September, China, Russia, Tajikistan and Uzbekistan proposed to the United Nations a global code of conduct including the principle that "policy authority for Internet-related public issues is the sovereign right of states".

Cyber security experts say western Nations hoped to fend off those calls for a "cyber treaty" and to prompt China, Russia and others to rein in hackers. Speaking by video link after U.S. Secretary of State Hillary Clinton pulled out of the two-day London meeting for family reasons, Vice President Joe Biden was particularly direct.

"What citizens do online should not, as some have suggested, be decreed solely by groups of governments making decisions for them somewhere on high," he said. "No citizen of any country should be subject to a repressive global code when they send an email or post a comment to a news article. They should not be prevented from sharing their innovations with global consumers simply because they live across a national frontier. That is not how the internet should ever work in our view."

To impose such controls on the Internet, Biden said, would stifle innovation. If countries wanted the economic benefits of connectivity, he they needed openness.

Britain faced some criticism at the conference following Prime Minister David Cameron's suggestion this August after England's riots that government might impose controls on some social media platforms. But Foreign Secretary William Hague struck a similar tone to Biden.

"Too many states around the world are seeking to go beyond legitimate interference or disagree with us about what constitutes 'legitimate' behaviour," Hague told the meeting of ministers, tech executives and Internet activists.

"The idea of freedom cannot be contained behind bars, no matter how strong the lock."

On Wednesday, delegates will continue to discuss potential international co-operation to tackle online crime, child pornography and other threats -- seen by many as the most likely area on which some agreement might be reached.

At a press conference organised by his delegation, Russian official Igor Shchegolev denied the "code of conduct" was part of a plan to censor the Internet, saying it was simply about refreshing now outdated telecommunications treaties.

"We in Russia are convinced that it is impossible to block or censor the Internet," he said. "Some countries in Europe declare that some social disturbance takes place they will close access to Twitter and Facebook. Russia doesn't even consider this possibility."

WESTERN STATES CRITICISED

Some other speakers at the conference said Cameron's suggested block of at least some social media platforms had put the West in an awkward position.

"It's very easy to defend this case of black and white human rights against dictatorships around the world, but as soon as our own Western-style stability of the state is called into question then freedom of expression is expendable. There should be one rule for all, including Western governments," said John Kampfner, chief executive of Index on Censorship.

Around 60 countries, including China, Russia and India, were represented at the conference as well as tech industry figures such as Jimmy Wales, founder of Wikipedia, and senior executives from Facebook and Google.

Wales told the conference he believed many attempts to regulate the flow of information -- such as British court "superinjunctions" which celebrities have used to block discussion of embarrassing stories -- were "bad law".

"We see all the time these kinds of laws," he said. "Maybe there are better ways than to rely on government control."

In a closed session, government and business officials discussed cybersecurity, with a mounting number of cyber attacks and hacking attempts seen high on the agenda.

On the eve of the conference, the head of Britain's communications spy agency said UK government and industry computer systems faced a "disturbing" number of cyber attacks, including a serious assault on the Foreign Office's network.

In his speech to the conference, Prime Minister Cameron described such attacks as "unacceptable". Whilst he did not refer directly to his riots comments, he said future prosperity and peace depended on managing cyberspace properly.

"Governments must not use cyber security as an excuse for censorship, or to deny people the opportunities that the internet represents," Cameron said. "The balance we've got to strike is between freedom and a free-for-all."

from the Weekly Standard, 2011-Oct-7, printed 2011-Oct-17, by Mark Hemingway:

The Perils of Donating to Perry
The SEC's curious role in campaign finance.

Last week, the Rick Perry campaign announced with great fanfare that the Texas governor had raised $17 million for his presidential campaign in the July-September quarter. That's more than any other GOP hopeful, and since Perry was a recent entrant to the presidential race, he raised that sum in just 49 days.

But here's why Perry's fundraising achievement is really impressive: In March, the SEC enacted “pay-to-play” rule 206(4)-5. The regulation prohibits investment advisers who contribute more than $350 to state or local officials who can influence their state's investment decisions from receiving payment from that state government for two years.

According to the Los Angeles Times, in 2008 securities firms alone gave Republican presidential candidates $20 million. Thanks to the new rule, that fundraising reservoir may remain largely untapped by the Perry campaign, for fear that donating to the Texas governor would prevent financial professionals from doing business with the second-largest state in the country.

Perry's campaign admits this has made fundraising more difficult. “As the only sitting governor in the race for the White House, Perry is much more negatively impacted by the SEC rules than anyone else in the race,” says campaign communications director Ray Sullivan. “It has and will continue to hamper our efforts to raise money, especially from the financial sector. It has made things quite challenging in New York, for example.”

And while this new ruling primarily affects Perry at the presidential level, it could have far-reaching consequences going forward, since it applies to every state office holder seeking federal office from here on out.

The new SEC regulation comes on top of an existing Municipal Securities Rulemaking Board (MSRB) regulation of the financial service industry​—​known as rule G-37​—​that restricts campaign donations to state office holders by those dealing in municipal bonds. (The MSRB is subject to SEC oversight.)

“Its genesis goes back to 1994 when the SEC began to regulate political contributions made to officials of issuers, who are basically mayors and governors and others who appoint people who select those who write or underwrite municipal bonds,” says Kenneth A. Gross, an expert on campaign law compliance at the law firm Skadden, Arps, Slate, Meagher & Flom. “There were many scandals in the late '80s, early '90s involving Orange County and other places where big firms on Wall Street were getting underwriting business because they made contributions to the right people in the right amounts.”

Like the association of scandal with municipal bonds, a regulatory crackdown on the cozy relationships between state politicians and investment advisers is not without precedent. In 2010, the Quadrangle Group agreed to pay $12 million to the state of New York after it emerged that Quadrangle cofounder Steve Rattner had paid significant sums to an adviser of New York State comptroller Alan Hevesi. Quadrangle subsequently received a $150 million investment from the state's pension fund. (Rattner went on to serve in the Obama administration as the White House's “car czar,” helping broker bailouts for U.S. auto companies.)

According to Gross, former SEC chairman Arthur Levitt had proposed extending pay-to-play rules to cover investment advisers back in 1999, but the regulations weren't pursued by Bush administration SEC appointees. The idea was revived by the Obama administration after the Quadrangle arrangement drew public scrutiny to the ties between state officials and investment advisers.

Nobody really disputes that the new SEC pay-to-play rules have the potential to clean up the political process. The perceived problem, however, is that the new rule makes it unduly difficult for state officeholders to raise money to challenge federal incumbents.

Between those dealing in municipal bonds and the hedge funds, private equity firms and other financial institutions restricted by the new SEC regulations​—​the gatekeepers of nearly $5 trillion of America's wealth​—​are now severely restricted from donating to the campaigns of state officeholders.

The fact that these regulations apply to some presidential candidates and not to others is not lost on the Perry campaign. “It does seem curious and unbalanced to heavily regulate and undermine the ability of state officials to legally raise funds and leave federal officials comparatively exempt from those regulations,” says Sullivan.

In the era of Dodd-Frank legislation, Congress and the White House have taken a great interest in banking regulations, and they have been lobbied heavily in response. It's hard to argue that cracking down on financial industry donors to state officeholders is warranted but that Congress shouldn't be subject to similar regulations.

And as it happens, Dodd-Frank is yet another example of federal regulations restricting fundraising for state officeholders. “Dodd-Frank has two new pay-to-play laws that will be on the books and in effect before this election is over having to do with municipal advisers, including banks, and perhaps accounting firms and engineering firms,” says Gross. “So we're going to have four federal pay-to-play laws that largely regulate nothing but state and local officials.”

There are currently no pay-to-play rules that apply to federal incumbents, despite any number of scandals similar to those used to justify the regulation of state officials. For instance, Rep. Barney Frank, the Massachusetts Democrat of the eponymous banking legislation, was involved in a romantic relationship with a Fannie Mae executive while the government-sponsored mortgage backer was making lavish political donations and successfully lobbying Frank's congressional banking committee to loosen mortgage standards.

This double standard is highlighted by the Perry campaign. “Congress does have a habit of exempting themselves and treating federal elected officials better than state and local officials. It is ironic that much of the financial crisis, to the extent that government was involved, they were federal agencies, federal bureaucrats, and federal officials that set the ground rules,” says Sullivan.

The SEC has a wide amount of discretion in how they enforce these campaign donation regulations. With both the MSRB's G-37 rule and the SEC's 206(4)-5 rule, direct and indirect contributions to officials are restricted. And what exactly constitutes an “indirect contribution” to a political campaign isn't strictly defined.

“There are certain things we can definitely say are indirect contributions that are problematic. For example, having your spouse write the check because you can't. Or having your neighbor write the check and reimbursing them,” says Melissa L. Laurenza, an election law attorney at Akin, Gump, Hauer and Feld. But beyond that, “the MSRB said they specifically weren't going to give any more guidance because they wanted the ability to review things on a case by case basis, and the SEC basically says the same thing in their rulemaking.”

Which raises the $64,000, or in this case the $350 question: How will the SEC rule on contributions to super PACs? Contributions to super PACs are currently considered independent expenditures by the FEC and could be a way to circumvent the new SEC restrictions. “The Securities and Exchange Commission, which has much broader rules and unfair dealing rules and much more discretion in interpreting these constitutional issues that the Federal Election Commission gets all spun up about, may well determine that's problematic,” says Gross.

Gross wonders if the SEC's determinations on super PACs will come down to how the individual PACs are operated​—​who set them up, who operates them, who does the soliciting. But that could require the SEC to make unprecedented political investigations and judgments.

If the SEC starts making decisions that are seen as becoming a determinative factor in who wins elections, the agency runs the risk of a political backlash. An SEC investigation might also carry the whiff of scandal, particularly when they're enforcing regulations that don't apply to the opposing candidates.

Many would like to see the SEC's rules clarified, especially with regard to super PACs. “That's probably one area that causes some discomfort​—​if I give to a [hypothetical super PAC called] Citizens for Perry, am I going to trigger a ban on doing business in Texas?” wonders Laurenza.

Whether these regulations are necessary for clean elections or simply amount to an incumbent-protection racket remains to be seen. The regulations appear to provide the financial services industry an incentive to concentrate their lobbying efforts at the federal level.

No one is certain how major campaign donors will respond to the new regulatory reality. Gross sent a memo to Skadden's influential clientele saying that “covered firms, employees and their PACs should avoid making contributions to Governor Perry's presidential campaign. .  .  . Moreover, they should avoid soliciting or coordinating contributions on his behalf, such as serving on his finance committee.”

Laurenza has more heartening news for the Perry campaign. “I've heard some people say that they feel so strongly they've just decided they're not going to do business in Texas. They say, `For the next two years, Texas is off the table and we're going to go like gangbusters for Perry,' ” she says. “For some people it's a big problem, and for others they just say, `To heck with it.' ”

The Perry campaign is no doubt hoping a lot more donors simply decide to say the heck with it. You could say they're banking on it.

from CNET News, 2011-Oct-14, by Declan McCullagh:

Free-trade pacts export U.S. copyright controls

President Obama called the approval of free-trade agreements with Colombia, Panama, and South Korea this week "a major win for American workers."

What he didn't add is that the deals, which were given final approval on Wednesday by the U.S. Congress, are also a major win for the motion picture industry and other large U.S. copyright holders. Other portions specify that consumers can have their choice of computer software, but "subject to the needs of law enforcement."

You won't find this highlighted on the administration's Web site (really, Web sites), but the three free-trade agreements export some of the more controversial sections of U.S. copyright law.

One chapter of the complex agreements echoes the Digital Millennium Copyright Act (DMCA), which the U.S. enacted in 1998 over the objections of librarians and computer scientists. It's been used to threaten college professors, stymie research into HP security vulnerabilities, and jail a Russian programmer who created an e-book conversion utility.

Now Colombia, Panama, and South Korea will be required to prohibit circumventing any "technological measure that controls access to a protected work"--meaning that making a backup copy of a DVD or video game will become illegal, and, depending on the details, a crime as well.

The language of Chapter 18 (PDF), the intellectual property section, does not include the limited safeguards that Americans enjoy. The U.S. DMCA, for instance, allows the U.S. Copyright Office to consider the state of computer technology and create exceptions, a requirement that is not exported to the signatories.

In the U.S., it's not against the law "for a person to engage in an act of security testing." That authorization is missing in the free-trade agreements. Also absent are most of the exemptions created by the Copyright Office, including ones relating to bypassing e-book and video game security in some cases, circumventing dongle-based restrictions, and copying clips from DVDs for documentary filmmaking.

Which is probably one reason why copyright holders were so enthusiastic about the free-trade agreements' passage yesterday. The Recording Industry Association of America said it was "extremely pleased."

To the Motion Picture Association of America, which said it "thanks Congress for approving these trade agreements," the deals will curtail "the content theft that hinders our industry's growth abroad." Even the Entertainment Software Association, representing video game publishers, predicted Congress' action "boosts exports, opens prospects for new markets and grows high-paying jobs."

In other words, the central "anti-circumvention" sections of the DMCA are exported, but not some of the protections designed to protect researchers and other people who make legitimate use of copyrighted material.

This kind of paracopyright-law export doesn't sit well with Sherwin Siy, deputy legal director at the advocacy group Public Knowledge, which has been critical of the DMCA in the past.

"It's definitely worth noting, and we've long been leery of quasi-legislation through international agreements," Siy said.

The U.S. Chamber of Commerce, which applauded the passage of the trade deals through Congress, downplayed the significance of the DMCA-esque language. Steve Tepp, chief counsel for the Chamber's Global IP Center, said it was "virtually verbatim from provisions of U.S. law enacted in the DMCA in 1998."

To be sure, there are plenty of sections of the trade deals that are likely to be applauded by even the most ardent skeptic of copyright law. Chapter 15, on electronic commerce, limits customs duties on any "digital product transmitted electronically." Electronic authentication and digital signatures are also explicitly permitted.

Bush administration trade negotiators routinely inserted DMCA-like language into bilateral agreements. It appeared in a 2003 pact with Singapore, and another a year later with Australia. These deals, the first negotiated by the Obama administration, show it's following suit.

A law enforcement veto?
Another section (PDF) of the trade deal seems to recognize only a limited right by Americans to create and use computer programs of their choice.

It says: "Each party recognizes that consumers in its territory should be able to...run applications and services of their choice, subject to the needs of law enforcement."

A U.S. trade official, who did not want to be named, told CNET that the language is "hortatory" and therefore not binding--in other words, it's a recognition, not a commitment to actually do anything.

"The intent is to make sure device makers and telcos do not introduce technology that could thwart a CALEA--an existing U.S. law--requirement to build into networks lawful interception capability," the trade official said. "Who decides? In the first instance, the law enforcement community."

The language--"subject to the needs of law enforcement"--dates back to a Federal Communications Commission "policy document" from the Net neutrality wars of 2005. It also echoes the late 1990s, when the FBI was lobbying for a law banning encryption without backdoors for the Feds. (A House of Representatives committee approved such a bill but it did not clear the Congress.)

"As followers of the Net neutrality debate will recognize, this text is partly a dog whistle for placating Hollywood about piracy," says Matt Schruers, vice president for law and policy at the Computer and Communications Industry Association.

from ArsTechnica.com, 2011-Oct-11, by Sean Gallagher:

Verisign wants power to shut sites down upon law enforcement request

In a request made yesterday to the Internet Corporation for Assigned Names and Numbers, Verisign outlined a new “anti-abuse” policy that would allow the company to terminate, lock, or transfer any domain under its registration jurisdiction under a number of circumstances. And one of those circumstances listed was “requests of law enforcement.”

The request, submitted through ICANN's Registry Services Evaluation Process on October 10, proposes a new malware scanning service for domains as well as a new Verisign Anti-Abuse Domain Use Policy. In the request letter, Verisign stated that its policy would help the registrar align with requirements ICANN is placing on new generic top level domains. “All parts of the internet community are feeling the pressure to be more proactive in dealing with malicious activity,” Verisign explained. “ICANN has recognized this and the new gTLD Applicant Guidebook requires new gTLDs to adopt a clear definition of rapid takedown or suspension systems that will be implemented.”

In part, the policy is aimed at empowering Verisign to act quickly to take down sites that are harboring malware, launching phishing attacks, or otherwise being used to launch attacks across the Internet. The scanning service, which registrars can opt into voluntarily, would scan sites on all .com, .net and .name sites for “known malware,” and inform the registrar and the site owner when malware is detected. Verisign has been soliciting domain registrars to participate in a pilot of the program, derived from the company's Verisign Trust Seal program, since March.

But the request also asks for authority to take down sites quickly for a number of reasons beyond malware, including “to protect the integrity, security and stability of the DNS; to comply with any applicable court orders, laws, government rules or requirements, requests of law enforcement or other governmental or quasi-governmental agency, or any dispute resolution process; (and) to avoid any liability, civil or criminal, on the part of Verisign, as well as its affiliates, subsidiaries, officers, directors, and employees... Verisign also reserves the right to place upon registry lock, hold or similar status a domain name during resolution of a dispute.”

Verisign said it has been piloting takedown procedures with US law enforcement agencies, cybersecurity experts, US government Computer Emergeny Readiness Teams, and domain registrars to establish baseline procedures, and has begun planning pilots with European government agencies and registrars. Just what those baseline procedures are—and what recourse domain holders who run afoul of them have—hasn't been spelled out. Verisign says it "will be offering a protest procedure to support restoring a domain name to the zone."

Aden Fine, senior attorney with the ACLU, said in an interview with Ars Technica that the "protest procedure" is cause for concern. "The default shouldn't be 'take down first'," he said. "Any time the government is involved in seizing websites, that raises serious First Amendment issues. It doesn't matter if it's a private company pushing the button."

Electronic Frontier Foundation media relations director and digital rights analyst Rebecca Jeschke told Ars Technica that Verisign's proposal is "an extraordinarily bad idea." "We've already seen how problematic domain seizures are through the ICE (Immigration and Customs Enforcement) shutdowns," she said. "It's similar to things the US government is trying to get through congress with the Protect IP Act, though there's a little more oversight in Protect IP. The key is if you're going to do something as drastic as taking a whole site offline, you at least need some meaningful court review. "

[By October 13, Verisign had with withdrawn their proposal, as indicated at http://www.icann.org/en/registries/rsep/, re: proposal #2011008. -AMPP Ed.]

from the Wall Street Journal, 2011-Sep-27, by Gary Fields and John R. Emshwiller:

The Animal Enterprise Terrorism Act Sets an Unusual Standard for Crime

In response to attacks on researchers by animal-rights activists, Congress in 2006 passed the Animal Enterprise Terrorism Act. The bill made a critical change to the legislation it replaced: Demonstrators could now earn a sentence in federal prison if the target of their attention felt threatened, regardless of the protesters' actual intention.

The law has emerged as a central example of how Congress has eroded the legal concept of mens rea, which is Latin for "guilty mind"—a long-held protection that says a defendant must know they've done something wrong to be found guilty of it.

The 2006 act was cited in a joint study by the conservative Heritage Foundation and the National Association of Criminal Defense Lawyers as an example of an overly broad law, particularly the way it clashed with First Amendment free-speech protections. The first case brought under its provisions was tossed in federal court.

For a controversial topic, the legislation received scant attention in Congress. Under Congress's sometimes arcane voting rules, the bill passed both chambers with fewer than 10 members voting in total, out of a possible 535. Because of the voting method, no record was kept of the exact number.

The bill was a redo of the Animal Enterprise Protection Act of 1992, which focused on attacks on "animal enterprises" such as zoos, research labs, circuses, stockyards and pet stores. Rep. Thomas Petri (R., Wis.) introduced the bill in the House in November 2005 with nearly four dozen co-sponsors from both parties.

At a House Judiciary subcommittee hearing in May 2006 victims talked about being targeted and threatened at their homes. One received a hoax telephone call telling her to come to the local morgue to identify a family member.

Sen. Dianne Feinstein (D., Calif.) with input from counterterrorism experts from the Federal Bureau of Investigation and the Justice Department, introduced an amended Senate version.

Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, said the bill can turn a simple protest into a criminal act if it causes fear in the target. The crime then turns on the victim's mental state, regardless of what the defendant intended.

In February 2009, four defendants in California were charged with participating in demonstrations at the homes of college professors who used animals in biomedical research. According to the criminal complaint, the four were among protesters who picketed and chanted outside the researchers' homes, calling them murderers. In one instance they went online to download information about researchers they left on fliers in a Santa Cruz café.

Federal District Judge Ronald Whyte dismissed the case, saying the indictment didn't make clear exactly what criminal behavior the defendants were supposed to have exhibited. "Any defendant—constitutionally presumed to be innocent—would be hard-pressed to discern" from the indictment, the judge said, "what it is that he or she has done that is alleged to have violated the law."

from the Wall Street Journal, 2011-Jul-12:

The Taxman Retreateth
The IRS stops its attack on political donors, at least for now.

The IRS last week abandoned its plan to audit major political donors just in time for the 2012 election season to begin in earnest. We're glad to see the agency back down from this ill-conceived campaign, but it's a shame it took a public backlash to deter its apparent ambition to be a political watchdog.

In May, the IRS sent letters to five big-time political donors advising that their donations to nonprofit groups that register under section 501(c)(4) of the tax code were subject to gift taxes, which might be owed retroactively. The letters were a shot at conservative political advocacy groups, which outspent liberal groups in the 2010 election cycle for the first time since 1994.

The backtracking is good news for the donors who were targets of the political dragnet, at least for now. The IRS stopped short of promising not to pursue similar claims in the future, saying only that it wouldn't do anything more while it "review[s] the need for additional guidance or legislation" and that any future action will be "prospective and after notice to the public." The escapade may also have costs for donors who have since paid gift taxes on their contributions to ensure they were abiding by the law. IRS spokesman Frank Keith was noncommittal on whether they'd be getting refunds.

Since the Supreme Court's 2010 decision in Citizens United restored the First Amendment rights of businesses and unions to donate to independent political groups, Democrats have been desperate to find a way to control all the irritating new speech flooding the political arena. They've tried to pass the Disclose Act to impose new disclosure requirements on political donors and encouraged the Federal Communications Commission to force disclosure on groups that run political ads.

This spring, the Obama Administration even drafted an executive order requiring disclosure for anyone bidding on a federal contract. When the draft order conveniently disappeared under a pile of papers at the White House after its contents were leaked, California Representative Anna Eshoo tried to attach it as an amendment to the 2012 Defense authorization bill last week.

Montana Senator Max Baucus had been pushing the IRS to crack down on political donors. But the IRS has maintained that all of this was the work of career gnomes and that the Administration knew nothing about it. Mr. Keith said last week that "decisions to open, suspend and close the audits were made by career civil servants and were not the result of any outside influence."

Whoever gets credit for this delightful interlude, the effect of the investigation was to make an example of high-dollar donors and discourage political speech. By leaving open the possibility of future investigations, the IRS has also left a lingering atmosphere of uncertainty among current donors. We doubt that's unintended.

from the Wall Street Journal, 2011-Jul-2, by Neil Strauss:

The Insidious Evils of 'Like' Culture
In our age of online view counts and retweets, conformity is becoming the rule

If you happen to be reading this article online, you'll notice that right above it, there is a button labeled "like." Please stop reading and click on "like" right now.

Thank you. I feel much better. It's good to be liked.

Don't forget to comment on, tweet, blog about and StumbleUpon this article. And be sure to "+1" it if you're on the newly launched Google+ social network. In fact, if you don't want to read the rest of this article, at least stay on the page for a few minutes before clicking elsewhere. That way, it will appear to the site analytics as if you've read the whole thing.

Once, there was something called a point of view. And, after much strife and conflict, it eventually became a commonly held idea in some parts of the world that people were entitled to their own points of view.

Unfortunately, this idea is becoming an anachronism. When the Internet first came into public use, it was hailed as a liberation from conformity, a floating world ruled by passion, creativity, innovation and freedom of information. When it was hijacked first by advertising and then by commerce, it seemed like it had been fully co-opted and brought into line with human greed and ambition.

But there was one other element of human nature that the Internet still needed to conquer: the need to belong. The "like" button began on the website FriendFeed in 2007, appeared on Facebook in 2009, began spreading everywhere from YouTube to Amazon to most major news sites last year, and has now been officially embraced by Google as the agreeable, supportive and more status-conscious "+1." As a result, we can now search not just for information, merchandise and kitten videos on the Internet, but for approval.

Just as stand-up comedians are trained to be funny by observing which of their lines and expressions are greeted with laughter, so too are our thoughts online molded to conform to popular opinion by these buttons. A status update that is met with no likes (or a clever tweet that isn't retweeted) becomes the equivalent of a joke met with silence. It must be rethought and rewritten. And so we don't show our true selves online, but a mask designed to conform to the opinions of those around us.

Conversely, when we're looking at someone else's content—whether a video or a news story—we are able to see first how many people liked it and, often, whether our friends liked it. And so we are encouraged not to form our own opinion but to look to others for cues on how to feel.

"Like" culture is antithetical to the concept of self-esteem, which a healthy individual should be developing from the inside out rather than from the outside in. Instead, we are shaped by our stats, which include not just "likes" but the number of comments generated in response to what we write and the number of friends or followers we have. I've seen rock stars agonize over the fact that another artist has far more Facebook "likes" and Twitter followers than they do.

Because it's so easy to medicate our need for self-worth by pandering to win followers, "likes" and view counts, social media have become the métier of choice for many people who might otherwise channel that energy into books, music or art—or even into their own Web ventures.

The same is true of the productivity of already established writers and artists. I was recently on a radio show with an author who, the interviewer said, had tweeted, on average, every 20 minutes for the past two years. Yet, despite all the time and effort spent amassing and catering to followers, as soon as a social network falls out of use, like MySpace, all that work collapses like a castle built of sand.

The psychoanalyst Erich Fromm presciently wrote over 60 years ago that man has "constructed a complicated social machine to administer the technical machine he built…. The more powerful and gigantic the forces are which he unleashes, the more powerless he feels himself as a human being. He is owned by his creations, and has lost ownership of himself."

So let's rise up against the tyranny of the "like" button. Share what makes you different from everyone else, not what makes you exactly the same. Write about what's important to you, not what you think everyone else wants to hear. Form your own opinions of something you're reading, rather than looking at the feedback for cues about what to think. And, unless you truly believe that microblogging is your art form, don't waste your time in pursuit of a quick fix of self-esteem and start focusing on your true passions.

And please, despite what I said earlier, do not +1, tweet, StumbleUpon, like or comment on this article. You'll only be making it worse.

—Mr. Strauss is the author of seven best-selling books. His latest book is "Everyone Loves You When You're Dead: Journeys Into Fame and Madness."

from eWeek.com, 2005-Mar-23, by Steven Vaughan-Nichols:

Software Patents and Mutually Assured Destruction

Opinion: The Cold War policy of MAD was that things could never get too ugly between the United States and the Soviet Union because if one of us went too far, the other could bomb it into the stone age … and vice-versa. That may be where we're

Have I mentioned that I hate software patents?

Why, yes, I have. Many times.

Im also a realist. Maybe someday, PUBPAT (the Public Patent Foundation) and other patent-reform groups such as the Electronic Freedom Foundations Patent-Busting Project will succeed in getting rid of software patents, but Im not holding my breath.

Even with Microsoft backing some software patent reform, amazing but true, I just cant see significant changes to U.S. patent law happening anytime soon.

And lest we forget, Microsoft isnt exactly the most trustworthy company in the world when it comes to patents.

Just this week, Microsoft announced that a new, integrated IPv4/IPv6 network stack would be in its upcoming Longhorn operating system. At the same time, lawyers for the Public Patent Foundation and the Software Freedom Law Center are concerned over a patent about automatic generation of IP addresses to facilitate simple network connections.

If my network-savvy readers say that sounds a bit like some of the features of IPv6 and DHCP (Dynamic Host Configuration Protocol), well yes it does, doesnt it.

Now, IPv6 isnt that important in North America at this time, but sooner or later, everyone on a TCP/IP network connected with the Internet is going to have to deploy it. Some people, with good reason I think, are concerned that Microsoft might use that patent to try to place a tariff on all programs that access the next generation of the Internet.

This is only part of what many see as a pattern of Microsoft getting ready to retroactively claim IP (intellectual property) rights over many of the Internets basic protocols.

Maybe they are, but Darl McBride, the CEO of The SCO Group, made me think that that may not be the case. We were talking about patents on Tuesday—no, SCO is not getting ready with a surprise patent lawsuit—and he said he didnt think Microsoft would dare use its patents in such a broad way.

His logic was that the technology world is a lot like the world situation of the 50s through the 80s, when the Soviet Union and the United States never went to outright war with each other because of the cynical but all too practical notion of MAD (mutually assured destruction).

In a nutshell, the policy of MAD was that things could never get too ugly between the United States and the Soviet Union because if one of us went too far, the other could bomb it into the stone age … and vice-versa.

How that applies to todays computing world is that if Microsoft started really throwing its patent weight around, IBM or Novell could retaliate in kind. Thus, if any one company tried to really strangle a large part of the market with an overly aggressive patent enforcement, they would be blasted by other companies with large patent portfolios. The end result would be that all of the companies involved would be locked into a software development doomsday, where nothing could be developed.

This isnt just idle speculation. After talking with McBride, I contacted several other people. Both a senior Novell executive and a prominent open-source attorney told me that if Microsoft ever tries to push too hard with its patents, other companies are more than ready to counter-attack with their own patent portfolios.

Lets take this analogy a little further. The peaceful coexistence based on MAD between the Soviets and the Americans meant that we didnt see World War III. We did, however, see lots of brushfire wars in Afghanistan, Angola and Vietnam.

Thus, just because the big companies may never go too far with their patents with each other and worldwide technologies such as the Internet doesnt mean that smaller companies or open-source developers wont be attacked. They will be.

Of course, as the good people at Black Duck Software will tell you, a patent holder doesnt actually have to sue you for a violation. Just the mere threat is enough to stop a company from developing or marketing a program if it doesnt have the legal protection or deep pockets needed to fight a patent battle in the courts.

So, while I now think that were unlikely to see any truly broad attempts to abuse software patents, I still believe that software patents are bad in general and that, in specific, small companies and open-source developers are still vulnerable to the bullying of software-patent superpowers.

from National Public Radio, 2011-Jul-22:

When Patents Attack

Update, July 26: This story from Planet Money's Alex Blumberg and NPR's Laura Sydell aired this weekend on This American Life. (Check out TAL's "Ways to Listen" page to find how you can hear the story.) A shorter version of the piece is also airing today on All Things Considered. Here's the story.

Nathan Myhrvold is a genius and a polymath. He made hundreds of millions of dollars as Microsoft's chief technology officer, he's discovered dinosaur fossils, and he recently co-authored a six-volume cookbook that "reveals science-inspired techniques for preparing food."

Myhrvold has more than 100 patents to his name, and he's cast himself as a man determined to give his fellow inventors their due. In 2000, he founded a company called Intellectual Ventures, which he calls "a company that invests in invention."

But Myhrvold's company has a different image among many Silicon Valley insiders.

The influential blog Techdirt regularly refers to Intellectual Ventures as a patent troll. IPWatchdog, an intellectual property site, called IV "patent troll public enemy #1." These blogs write about how Intellectual Ventures has amassed one of the largest patent portfolios in existence and is going around to technology companies demanding money to license these patents.

Patents are a big deal in the software industry right now. Lawsuits are proliferating. Big technology companies are spending billions of dollars to buy up huge patent portfolios in order to defend themselves. Computer programmers say patents are hindering innovation.

But people at companies that have been approached by Intellectual Ventures don't want to talk publicly.

"There is a lot of fear about Intellectual Ventures," says Chris Sacca, a venture capitalist who was an early investor in Twitter, among other companies. "You don't want to make yourself a target."

Sacca wouldn't say if Intellectual Ventures had been in contact with any of the companies he's invested in.

"I tried to put you in touch with other people in this community to talk to you about this and they almost uniformly said they couldn't talk to you," Sacca told us. "They were afraid to." IV has the power to "literally obliterate startups," Sacca says.

Not surprisingly, Nathan Myhrvold (pictured above) has a very different story about Intellectual Ventures. When we ask him if IV is a patent troll, he laughs.

"That's a term that has been used by people to mean someone they don't like who owns patents," he says. "I think you'd find almost anyone who stands up to their patent rights has been called a patent troll."

Intellectual Ventures, says Myhrvold, is just the opposite. It's on the side of the inventors. It pays inventors for patents. It gathers patents together into a huge warehouse of inventions that companies can use if they want. It's sort of like a department store for patents: Whatever technology you're looking for, IV has it.

The company even has its own massive lab, with people walking around in white lab coats, mixing chemicals in beakers and looking at stuff under microscopes. There's a machine shop. A nanotechnology section. It's like a playground for scientists and engineers.

IV says it has invented a nuclear technology that's safer and greener than existing technologies. A cooler that can keep vaccines cold for months without electricity. And the world's most high-tech mosquito zapper.

But the lab is a tiny fraction of what IV does. The company has received about 1,000 patents on stuff it's come up with at the lab; it's purchased roughly 30,000 patents from other people. In fact, nothing that's come out of this lab — not the mosquito zapper, not the nuclear technology — has made it into commercial use.

IV, for its part, says its job is to encourage invention, not to bring products to market.

Imagine an inventor out there — someone with a brilliant idea, a breakthrough. This inventor has a patent, but companies are stealing his idea. And this inventor doesn't have the money or legal savvy to stop them. That's where IV comes in. It buys this inventor's patent, and it makes sure that companies who are using the idea pay for it.

When we asked for an example of an inventor in this situation, someone with a breakthrough, who wasn't getting paid for it, two separate people at IV pointed us to a guy named Chris Crawford.

Joe Chernesky, a vice-president at Intellectual Ventures, said:

The neat thing about Chris is he had no idea how to get money for his patents. He had this great idea. These patents were immensely valuable because every technology company was adopting the technology. Yet he didn't know how to get paid. He eventually found Intellectual Ventures. So we bought those patents

So we went to talk to Chris Crawford. But that turned out to be harder than we thought — and it led us on a five month journey, where things did not quite fit the story Intellectual Ventures was telling.

***

When we followed up with IV to get Chris Crawford's contact info, the company told us it no longer owned Chris Crawford's patent. And Crawford probably wouldn't want to talk right now anyway, the company said, because he was in the middle of litigation.

We started digging around and found Chris Crawford in Clearwater, Florida. As predicted, he never responded to our many emails and phone calls. You'll never hear from him in this story. But we were able to locate Chris's patent — number 5771354.

He got it in 1998. And the way IV explained the patent to us, Chris Crawford invented something that we do all the time now: He figured out a way to upgrade the software on your home computer over the Internet. In other words, when you turn on your computer and a little box pops up and says, "Click here to upgrade to the newest version of iTunes," that was Chris Crawford's idea.

But when we looked at the patent, it seemed to claim a lot more than that. The name of the actual invention is "an online back-up system." The patent says this invention makes it possible to connect to an online service provider to do a bunch of stuff — software purchases, online rentals, data back ups, information storage. The patent makes it seem like Chris Crawford invented a lot of the most common things we do on the Internet.

We weren't sure what to make of all this, so we went to see David Martin, who runs a company called M-Cam. It's hired by governments, banks and business to assess patent quality, which the company does with a fancy piece of software. We asked Martin to assess Chris Crawford's patent.

At the same time Crawford's patent was being prosecuted, more than 5,000 other patents were issued for "the same thing," Martin says.

Crawford's patent was for "an online backup system." Another patent from the same time was for "efficiently backing up files using multiple computer systems." Yet another was for "mirroring data in a remote data storage system."

And then there were three different patents with three different patent numbers but that all had the same title: "System and method for backing up computer files over a wide area computer network."

Martin says about 30 percent of U.S. patents are essentially on things that have already been invented. In 2000, for example, the patent office granted a patent on making toast — patent number 6080436, "Bread Refreshing Method."

We also asked Rick Mc Leod, a patent lawyer and former software engineer, to evaluate Chris Crawford's patent.

"None of this was actually new," he told us.

Mc Leod looked to see if anyone else in the field was already doing the thing Chris Crawford claimed to invent in 1993, when he first filed his patent. Here's what he found:

There were institutions, both academic and businesses, that used computers in this way, and I think it's a very interesting collection of things that were well known in the 1980s, with the exception that it adds the word "Internet."

Mc Leod said he didn't think the patent should have been issued in the first place.

***

For a long time, the patent office would have agreed with Rick Mc Leod. For a long time, the patent office was very reluctant to grant patents for software at all.

For decades, the patent office considered software to be like language. A piece of software was more like a book or an article. You could copyright the code, but you couldn't patent the whole idea.

In the 1990s, the Federal courts stepped in and started chipping away at this interpretation. There was a couple big decisions, one in 1994 and another in 1998, which overturned the patent office completely.

A flood of software patents followed. A lot of people in Silicon valley wish that had never happened, including a very surprising group: computer programmers.

"I worked on a whole bunch of patents in my career over the years and I have to say that every single patent is nothing but crap," says Stephan Brunner, a programmer.

Brunner says software patents on his own work don't even make sense to him.

I can't tell you for the hell of it what they're actually supposed to do. The company said we have to do a patent on this. ... Personally, when I look at them, I'm not proud at all. It's just like mungo mumbo jumbo that nobody understands and makes no sense from an engineering standpoint whatsoever.

(For the record, Stephan Brunner has a patent for a "configurator using structure and rules to provide a user interface.")

We met Stephan randomly one afternoon in South Park, a park in San Francisco where lots of tech people eat lunch.

That same afternoon, we talked to a half dozen different software engineers. All of them hated the patent system, and half of them had patents in their names that they felt shouldn't have been granted. In polls, as many as 80 percent of software engineers say the patent system actually hinders innovation. It doesn't encourage them to come up with new ideas and create new products. It actually gets in their way.

Many patents are so broad, engineers say, that everyone's guilty of infringement. This causes huge problems for almost anyone trying to start or grow a business on the Internet.

"We're at a point in the state of intellectual property where existing patents probably cover every behavior that's happening on the Internet or our mobile phones today," says Chris Sacca, the venture capitalist. "[T]he average Silicon Valley start-up or even medium sized company, no matter how truly innovative they are, I have no doubt that aspects of what they're doing violate patents right now. And that's what's fundamentally broken about this system right now."

***

This brings us back to Chris Crawford's patent, the patent Intellectual Ventures cited as an example of how they encourage innovation by ensuring that inventors get paid. As we've said, this patent also seems to cover a big chunk of what happens on the Internet: upgrading software, buying stuff online, and what's called cloud storage. If you have a patent on all that, you could sue a lot of people.

And, in fact, that's what's happening with Chris Crawford's patent. Intellectual Venures sold it to a company called Oasis research in June of 2010. Less than a month later, Oasis Research used the patent to sue over a dozen different tech companies, including Rackspace, GoDaddy, and AT&T.

We called Oasis several times, but no one ever answered the phone. For a while, the company's voice mail message directed all questions to John Desmarais , a lawyer in New York.

He didn't return our phone calls, but we did track him down at an intellectual property conference in San Francisco.

He cited attorney-client privilege, and wouldn't tell us anything — not even who owns Oasis Research. (He did say he's a big fan of NPR.)

There was hardly any public information about Oasis Research. No way to know who owned it, or how many employees it had.

One of the few details that was available was an address: 104 E. Houston street, suite 190, Marshall, Texas.

So we went to Marshall. The door to Oasis's office was locked, and through the crack under the door we could see there were no lights were on inside.

It's kind of a cliche to knock on the door of the empty office. But we'd flown a long way. So we knocked. No one answered.

The office was in a corridor where all the other doors looked exactly the same —locked, nameplates over the door, no light coming out. It was a corridor of silent, empty offices with names like "Software Rights Archive," and "Bulletproof Technology of Texas."

It turns out a lot of those companies in that corridor, maybe every single one of them, is doing exactly what Oasis Research is doing. They appear to have no employees. They are not coming up with new inventions. The companies are in Marshall, Texas because they are filing lawsuits for patent infringement.

Patent lawsuits are big business in Marshall, which is part of the eastern district of Texas.

Many people say that juries in Marshall are friendly to patent owners trying to get a large verdict. A local lawyer who has argued on both sides of numerous patent cases says it's actually because cases go to trial more quickly in Marshall than in other places.

In any case, thousands of lawsuits are filed there, claiming that there's an inventor whose invention is being used without permission. But there are no inventors in Marshall, just corridors of empty offices.

***

We did find one key detail about Oasis Research. It was in a legal document called a Certification of Interested Parties, which lists all the entities with a financial interest in Oasis. Tom Ewing, an intellectual property lawyer who makes a business of tracking IV, brought it to our attention.

The Oasis document lists the usual parties — the plaintiff, the defendants, the attorneys involved. But it also includes one other name: Intellectual Ventures.

Peter Detkin, an attorney who co-founded Intellectual Ventures with Nathan Myhrvold, told us that IV likely has a "back-end arrangement" with Oasis.

In other words, Detkin said, "We sell for some amount of money up front, and we get some percentage of the royalty stream down the road that is generated from these assets."

That means it's likely that Intellectual Ventures is taking a cut of whatever money Oasis gets from its lawsuits. Oasis is a company with no operations, no products, and, as far as we can tell, no employees, that is using a very broad patent from 1998 to sue over a dozen companies.

As it happens, Detkin is the man who coined the term "patent troll." He came up with it back in in 1999, when he was working for Intel.

We asked him how it feels to make money from an entity that's behaving much like the patent trolls he once condemned. He said:

These are patents we used to hold, we no longer hold. And we ensure that we have no control over the actions of these third parties. They are independent actors. They are not Intellectual Ventures. They may be monetizing in ways we disagree with, but it's not our call.

...we believe in our heart that litigation is a highly inefficient way to do licensing. But let's not lose sight that litigation is just licensing by other means.

In other words, we try to license these patents in a friendly way. But sometimes, you have to sue. Detkin then repeated the company line we heard from a lot of people at IV: The mission of Intellectual Ventures is to help inventors bring great ideas into the world.

We asked if he could point us to a patent that was languishing, but then got licensed and built.

"There were two deals that were done," he said. "One was with a toy company. The other was... I can't remember the technology, it was out there last Christmas, but I don't know how it's done."

He continued:

The fact is the bulk of our patents, the bulk of our revenue is from people ... [who] were using it before we bought it, they were using it after we bought it, but we provided an efficient way for them to get access to the invention rights.

This is a good thing, Detkin says, because it means inventors — the people who hold the patents — get paid. This, in turn, creates an incentive for people to come up with new inventions.

But IV is not buying inventions. It's buying patents. And most software engineers will tell you, at least when it comes to software, a patent and an invention are not the same. Lots of patents cover things that people who write software for a living wouldn't consider inventions at all.

***

All the big tech companies have started amassing troves of software patents — not to build anything, but to defend themselves. If a company's patent horde is big enough, it can essentially say to the world, "If you try to sue me with your patents, I'll sue you with mine."

It's mutually assured destruction. But instead of arsenals of nuclear weapons, it's arsenals of patents. And this was a problem Intellectual Ventures founder Nathan Myhrvold said he was trying to solve when he first started the company. A problem that he and others from his company talked about at investor meetings around Silicon Valley. Chris Sacca attended one of those meetings a few years back.

The pitch he heard was, basically, Intellectual Ventures helps defend against lawsuits. Intellectual Ventures has this horde of 35,000 patents — patents that, for a price, companies can use to defend themselves.

Technology companies pay Intellectual Ventures fees ranging "from tens of thousands to the millions and millions of dollars ... to buy themselves insurance that protects them from being sued by any harmful, malevolent outsiders," Sacca says.

There's an implication in IV's pitch, Sacca says: If you don't join us, who knows what'll happen?

He says it reminds him of "a mafia-style shakedown, where someone comes in the front door of your building and says, 'It would be a shame if this place burnt down. I know the neighborhood really well and I can make sure that doesn't happen.' "

Sacca continues:

Here's what's funny: When I've seen Nathan speak publicly about this and when I've seen spokespeople from IV they constantly remind us that they themselves don't bring lawsuits, that they themselves aren't litigators, that they are a defensive player. But the truth is the threat of their patent arsenal can't actually be realized, it can't be taken seriously, unless they have that offensive posture, unless they're willing to assert those patents. And so it's this very delicate balancing act that is quite reminiscent of scenes you see in movies when the mafia comes and visits your butcher shop and they say, "Hey, It would be a real shame if they came and sued you. Tell you what: pay us an exorbitant membership fee into our collective and we'll keep you protected that way." A protection scheme isn't credible if some butcher shops don't burn down now and then.

In an email to us, Peter Detkin called the comparison to the mafia "ridiculous and offensive." Detkin wrote:

We're a disruptive company that's providing a way for patent-holders to recognize value that wasn't available before we came on the scene, and we are making a big impact on the market. That obviously makes people uncomfortable. But no amount of name-calling changes the fact that ideas have value. (See Detkin's full response here.)

True enough. But you can see why many people feel like lots of butcher shops have been burning. As we were reporting this story, more and more Intellectual Ventures patents started showing up in the hands of companies like Oasis, companies without employees or operations, that were formed for the purpose of filing lawsuits. They're known as non-practicing entities, or NPEs.

One former IV patent was used by an NPE to sue 19 different companies, a broad assortment that included Dell, Abercrombie & Fitch, Visa, and UPS.

These companies all have websites where, when you scroll your mouse over certain sections, pop-up boxes appear. The NPE said, "We have the patent on that." Which would make pretty much the entire Internet guilty of infringing the patent.

Another group of former IV patents is being used in one of the most controversial and talked about cases in Silicon Valley right now. An NPE called Lodsys is suing roughly three dozen companies developing apps for the iPhone and for Android phones. Lodsys says it owns the patent on buying things from within a smartphone app.

One interesting wrinkle about that case: The address for Lodsys is 104 E. Houston street, Marshall Texas, suite 190. The same exact address, down to the suite number, as Oasis Research.

***

For this story, we called people who had licensing arrangements with IV, we called people who were defendants in lawsuits involving IV patents, we called every single company being sued by Oasis Research. No one would talk to us.

Part of this is probably fear. Part of it is the fact that agreements with Intellectual Ventures include a non-disclosure agreement that's rumored to be the strictest in Silicon Valley.

The Oasis Research case is still ongoing, but many of the original defendants seem to have settled.

Michael Smith, the attorney in Marshall, Texas, represented one of those defendants. He was pretty sure they would have won the case if they'd gone to trial. But his client settled anyway. He says sometimes it makes more sense to settle and pay a license fee than to spend $2 million to $5 million on a court case.

Tom Ewing, the lawyer who tracks Intellectual Ventures, says it's likely we'll see plenty more of these cases in the future. In order to purchase its 35,000 patents, Intellectual Ventures raised more than $5 billion from investors.

Since its founding in 2000, Intellectual Ventures has generated $2 billion in revenue. But to keep its investors happy over the next 10 years, Ewing says, it's going to have to do a lot better than that:

"Intellectual Ventures seems to have signed a number of deals," Ewing says. "If the stream of deals they're signing doesn't increase significantly, I imagine they would be forced to file more litigation, in order to achieve their revenue targets."

Ewing's prediction already seems to be coming true. Earlier this month, Intellectual Ventures itself filed a lawsuit in federal court against several companies it claimed were infringing some semiconductor patents it owns.

***

In early July, the bankrupt tech company Nortel put its 6,000 patents up for auction as part of a liquidation. A bidding war broke out among Silicon Valley powerhouses. Google said it wanted the patents purely to defend against lawsuits and it was willing to spend over $3 billion to get them. That wasn't enough, though.

The portfolio eventually sold to Apple and a consortium of other tech companies including Microsoft and Ericsson. The price tag: $4.5 billion dollars. Five times the opening bid. More than double what most people involved were expecting. The largest patent auction in history.

That's $4.5 billion on patents that these companies almost certainly don't want for their technical secrets. That $4.5 billion won't build anything new, won't bring new products to the shelves, won't open up new factories that can hire people who need jobs. That's $4.5 billion dollars that adds to the price of every product these companies sell you. That's $4.5 billion dollars buying arms for an ongoing patent war.

The big companies — Google, Apple, Microsoft — will probably survive. The likely casualties are the companies out there now that no one's ever heard of that could one day take their place.

from Gizmodo, 2011-Jul-20, by Mat Honan:

This Is Where the Patent Trolls Live

This American Life had an amazing story this past weekend about patent trolls. It was pegged to Intellectual Ventures, and various others who litigate rather than innovate. But the real patent trolls are being traded on the NYSE.

As This American Life reports, from 2004 to 2009 patent infringement lawsuits rose 70 percent while licensing fee requests went up by 650 percent. The system is broken. And it's got to be fixed before it kills everyone in the business of making something new.

To make that happen, we need to get the big players in the patent system on board. Sadly, right now they're part of the problem.

Software patents are often flim-flam, won almost by lottery, that benefit no one other than lawyers and shakedown artists. Take Lodsys, for example, the company hammering iOS developers over patent number 7,222,078. Here's its abstract:

"In an exemplary system, information is received at a central location from different units of a commodity. The information is generated from two-way local interactions between users of the different units of the commodity and a user interface in the different units of the commodity. The interactions elicit from respective users their perceptions of the commodity."

It's utterly ridiculous. There is nothing non-obvious or novel about the patent it is seeking to enforce. Anyone who finds it innovative is naive, intellectually dishonest, or, sadly, a patent examiner at the USPTO.

Like many software patents, it's essentially several hundred words of typo-riddled gibberish, much of which might as well be lorem ipsum text. And yet, it passed. So now this patent, which mostly talks about market research, is being used to shakedown iOS developers for in-app purchases.

The epicenter of this slow death of American invention is Marshall, Texas. Marshall is the town Technology Review called "a haven for patent pirates." Many offices there are, effectively, mail drops established for the purpose of filing lawsuits. The Lodsys office is nary a block from the U.S. District Court for the Eastern District of Texas.

The courthouse itself looks bucolic in this Google streetview map, with rays of sunlight arcing over its roofs. Until you realize that the light is coming from the West, and what you are looking at is the sunset of American innovation.

A Nexis search of 104 E. Houston Street, the building where Lodsys and Oasis Research, LLC (a company profiled in the This American Life report) are headquartered, reveals suite upon suite of patent trolls and weasels. Companies like Software Rights Archive LLC, whose Google footprint is basically a history of lawsuits.

These are the tapeworms crawling through the nutrient-rich belly of American innovation, full of bile and shit, slowly starving us to death.

104 E. Houston also houses a hive of lawyers, the kind who can file a multi-thousand word lawsuit but can't even bothered to take the dummy text off their websites. Others, who aren't actually headquartered there, brag of their Marshall office—because it is "blessed with outstanding judges who employ a "fast track" docket system for resolving disputes quickly and efficiently."

Yes. A true blessing for us all.

But the thing is, the problem isn't Lodsys or Innovation Solutions or even the litigation-prone attorneys. They're just taking advantage of a broken system. The problem is driven by the ones who perpetuate it. It's Apple. It's Microsoft. It's Sony. It's Samsung. It's HTC. It's Google.

Instead of spending obscene fortunes stockpiling patents or suing the shit out of each other at every available opportunity, these large companies that depend on innovation could actually do something constructive for society.

If the biggest players in technology and the American economy tell Washington to write a bill, it gets written. The Patent Reform Act, that passed the House in June—which awards patents to the first applicant, not the first inventor—is basically the exact opposite of what patent reform should look like. It needs to be harder to get a patent issued. The patent re-examination process needs to be more vigorous. And it needs to be easier for small players to participate. If the Apple-Microsoft-Rim-Sony consortium spent a fraction of the $4.5 billion it plunked down for the Nortel patent portfolio on lobbying, we'd have very different patent laws. And we need them desperately.

It wasn't always like this. Even as recently as 20 years ago we had a better patent system. We need to totally overhaul it now, so that patents once again foster innovation, rather than prevent it.

As Marco Ament noted, perhaps it's a good thing that Google didn't win the Nortel patent portfolio, because not owning a trove of patents could motivate the company to challenge the system. Until that happens, until large corporations fight to fix the status quo instead of lawyering up and buying every patent on the market, they're the problem, and they're the ones we should be focusing our outrage on.

Raging against Lodsys and Oasis Research and Software Rights Archive and even Innovation Solutions feels good, but is ultimately useless. They're lampreys. Yeah, we should be rid of them. But the only way to do that is to get rid of all the sharks.

from the International Business Times, 2011-Aug-17, by Jay Akasie:

U.A.E. Slaps Severe Limits on Social Networking

The United Arab Emirates is enforcing a law that can slap a 10-year prison sentence on anyone it thinks is spreading rumors through social media outlets.

The Peninsula, an English-language newspaper in the nearby Persian Gulf country of Qatar, reports that social networking sites in the region are heating up with debates arguing if such a law is needed and if more Gulf countries should follow suit.

The U.A.E., which includes the glitzy city of Dubai, has banned the use of the Internet, Twitter and Facebook and as well as gadgets such as the BlackBerry for spreading rumors and propaganda. The U.A.E. put five bloggers on trial because they called for democratic reforms there during the Arab Spring uprisings.

The director of organized crime-combating unit of Dubai Police, Abdul Rahim Shafei, told local media that law enforcement agencies will deal strictly with people who use social media forums or technologies to spread "baseless rumors" and hurl insults at the members of the royal family or senior bureaucrats.

The tiny Gulf country, home to a vast expat population of South Asians and Westerners, becomes the first member-state of the Gulf Cooperation Council to implement a law to curb what analysts describe is Internet activism, according to The Peninsula. Most social network commentators said free expression through the Internet trumps rumor-mongering.

"Media reports about the U.A.E. law have, though, evoked mixed reactions in Qatar with many commentators writing on social networking sites that rumor-mongering must be dealt with strictly. But there were others who said that although spreading rumors should be discouraged, it is important to have free expression on social media," according to The Peninsula.

Outside the Middle East, China has been among the first countries to have to clamp down on Internet activism. When the Web population in that country crossed the 400 million-mark, China enforced an anti-rumor mongering law, according to The Peninsula.

from the Guardian of London, 2011-Aug-11, by Josh Halliday and Juliette Garside:

Rioting leads to Cameron call for social media clampdown
Role of Facebook, Twitter and BlackBerrys in UK violence to be examined by home secretary Theresa May

Facebook has responded to David Cameron's calls for a clampdown on social networking sites by saying it has already actively removed several "credible threats of violence" related to the riots across England.

The prime minister told parliament on Thursday that Facebook, Twitter and Research in Motion (Rim), the maker of BlackBerry devices, should take more responsibility for content posted on their networks, warning the government would look to ban people from major social networks if they were suspected of inciting violence online.

The home secretary, Theresa May, is to hold meetings with the three companies within weeks.

The police have promised to track down those suspected of inciting the violence on Twitter, but much of the planning for the disturbances took place in the relatively private world of the BlackBerry Messenger service.

A Facebook spokeswoman said: "We look forward to meeting with the home secretary to explain the measures we have been taking to ensure that Facebook is a safe and positive platform for people in the UK at this challenging time.

"In recent days, we have ensured any credible threats of violence are removed from Facebook and we have been pleased to see the very positive uses millions of people have been making of our service to let friends and family know they are safe and to strengthen their communities."

Mike Conradi, partner and telecoms specialist at the London law firm DLA Piper, said that emergency measures to stop rioters communicating on social media sites would require legislation and threaten free speech.

Conradi said: "What David Cameron appears to be wanting is a police power to trawl through millions of messages – ideally in real time – to prevent possible criminal activity. I don't believe that any such power exists and nor would I want there to be one. Parliament would have to pass new legislation and I would certainly warn against that. That gets the balance wrong in terms of free speech and security.It would certainly put the UK in a difficult position in terms of talking to authoritarian regimes and trying to convince them not to turn off their networks."

Current powers allow Rim and others to identify people who may be worth further investigation and potential prosecution without looking at the contents of their messages.

Cameron's move to curb social media was backed by the opposition. Ivan Lewis, the shadow culture secretary, said: "Free speech is central to our democracy but so is public safety and security. We support the government's decision to undertake a review of whether measures are necessary to prevent the abuse of social media by those who organise and participate in criminal activities."

The only organisation which regularly removes illegal content from websites within hours of its discovery is the Internet Watch Foundation, which combats images of child abuse. Funded by internet service providers, mobile operators and other web businesses, it has no legal powers. Any co-operation is voluntary.

It uses "notice and take down procedures", which have been widely adopted in the US and Europe to protect internet publishers from being held liable for hosting illegally copied material. Most websites, if contacted with a complaint about their content, take down the material.

Efforts to control messaging during riots are likely to focus on social media rather than mobile phone companies, because there is no simple procedure for police to cut off individual phones at short notice.

Vodafone Group communications director Matt Peacock said: "It is not possible to cut off access to an individual subscriber if the police don't even know who that person is, as would seem highly likely in the middle of a riot with hundreds of masked youths running around the streets.

"In any case, the police must follow a legal process in order to require operators to disclose individual subscriber information. It's an important process, designed to protect customers' privacy, and it's proven and robust. However, it isn't designed to operate in the context of this kind of fast-moving and highly volatile civil disorder."

Powers do exist in the UK and most other countries to order the shut down of entire networks or individual base stations, blocking all traffic in a particular area. These are seen as a last resort.

Vodafone and other carriers were widely criticised for shutting their Egyptian networks during anti-government demonstrations.

from CNET News, 2011-Jul-7, by Greg Sandoval:

Top ISPs agree to become copyright cops

Some of the top ISPs, including Comcast, Cablevision, Verizon, and Time Warner Cable, have officially agreed to step up efforts to protect the rights of copyright owners, a move first reported last month by CNET.

"Leaders from the movie, television, music and Internet service provider communities today announced a landmark agreement on a common framework for 'Copyright Alerts,'" the parties said today in a statement. Copyright Alerts "will educate and notify Internet subscribers when their Internet service accounts possibly are being misused for online content theft. This voluntary landmark collaboration will educate subscribers about content theft on their Internet accounts, benefiting consumers and copyright holders alike."

Many file-sharing fans and proponents of free content are to sure mock the assertion that this is a benefit to them.

This agreement hands the music and film sectors a big new stick with which to fight online illegal downloading of copyrighted works. The deal doesn't affect illegal streaming services. The film, music, and software sectors claim that online piracy costs the U.S. economy billions in lost revenue and jobs.

The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA), the respective trade groups for the four major record companies and six top Hollywood film studios, have labored for years to persuade ISPs to take a tougher antipiracy position. The RIAA, led by CEO Mitch Bainwol, said in December 2008 that the group would cease filing lawsuits against individual file sharers and would instead enlist the help of the large bandwidth providers. These companies are recognized as some of the Web's most powerful gatekeepers. It took nearly three years to convince the ISPs to agree.

The new system of enforcement looks a lot like the old system. The ISPs send out a series of notifications and warnings--which many ISPs have done for years--to someone suspected of illegally downloading films and music. What is new is that if the warnings are ignored, then the ISPs will eventually implement a series of tougher measures.

Those suspected of chronic abuse of copyright laws will face penalties. Multiple warnings are supposed to be followed up by one of several responses that ISPs can choose from, such as throttling down an accused user's Web-connection speed to blocking them from surfing the Web altogether.

"These Mitigation Measures may include, for example: temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright," the parties said in a statement.

It's obvious that the ISPs wanted to move deeper into copyright protection as gingerly as they could to avoid alienating young customers. But this new system of "mitigation" is just lipstick on the "graduated response" policy that the entertainment companies have pushed for years.

"Consumers have a right to know if their broadband account is being used for illegal online content theft, or if their own online activity infringes on copyright rules...so that they can correct that activity," said James Assey, vice president of the National Cable & Telecommunications Association, a trade group that represents ISPs. "We are confident that, once informed that content theft is taking place on their accounts, the great majority of broadband subscribers will take steps to stop it."

ISPs had balked at adopting a graduated response plan for years. But last month, CNET reported that the White House was instrumental in encouraging the parties to reach an agreement, sources with knowledge of the talks said at the time. President Obama has said intellectual property is important to the country's economy and has vowed to step up the fight against piracy and counterfeiting.

His administration has lobbied Congress for the past several years to pass new pro-copyright legislation while instructing federal law enforcement to make antipiracy a priority.

from the Wall Street Journal, 2011-Mar-28, by Paul Sonne and Steve Stecklow, with Marc Champion, Christopher Rhoads, Nicholas Casey and Loretta Chao contributing:

U.S. Products Help Block Mideast Web

As Middle East regimes try to stifle dissent by censoring the Internet, the U.S. faces an uncomfortable reality: American companies provide much of the technology used to block websites.

McAfee Inc., acquired last month by Intel Corp., has provided content-filtering software used by Internet-service providers in Bahrain, Saudi Arabia and Kuwait, according to interviews with buyers and a regional reseller. Blue Coat Systems Inc. of Sunnyvale, Calif., has sold hardware and technology in Bahrain, the United Arab Emirates and Qatar that has been used in conjunction with McAfee's Web-filtering software and sometimes to block websites on its own, according to interviews with people working at or with ISPs in the region.

A regulator in Bahrain, which uses McAfee's SmartFilter product, says the government is planning to switch soon to technology from U.S.-based Palo Alto Networks Inc. It promises to give Bahrain more blocking options and make it harder for people to circumvent censoring.

Netsweeper Inc. of Canada has landed deals in the UAE, Qatar and Yemen, according to a company document.

Websense Inc. of San Diego, Calif., has a policy that states it "does not sell to governments or Internet Service Providers (ISPs) that are engaged in government-imposed censorship." But it has sold its Web-filtering technology in Yemen, where it has been used to block online tools that let people disguise their identities from government monitors, according to Harvard University and University of Toronto researchers.

Websense's general counsel said in a 2009 statement about the incident: "On rare occasion things can slip through the cracks."

Web-filtering technology has roots in the 1990s, when U.S. companies, schools and libraries sought to prevent people from surfing porn, among other things.

Today, that U.S. technology is now among the tools used in the clampdowns on uprisings across the Middle East. In Egypt, Syria, Tunisia and elsewhere, bloggers have been jailed and even beaten as governments try to repress online expression.

In Bahrain, Nabeel Rajab, head of the banned Bahrain Human Rights Center, which runs a website the government blocks, says he was briefly thrown in a car and roughed up after authorities raided his house last week. The men threatened him with a pipe, he says, and slapped him when he refused to say he loved Bahrain's king and prime minister.

For the U.S., the role of Western companies in Internet censorship poses a dilemma. In a speech last year, Secretary of State Hillary Rodham Clinton said, "Censorship should not be in any way accepted by any company from anywhere. And in America, American companies need to take a principled stand."

Lately the State Department has spent more than $20 million to fund software and technologies that help people in the Middle East circumvent Internet censorship that is sustained by Western technology.

Asked about that policy, a senior State Department official said the U.S. is responding to "a problem caused by governments abusing U.S. products." When governments repurpose U.S.-made tools "to filter for political purposes, we are involved in producing and distributing software to get around those efforts."

A Bahrain official defended censorship. "The culture that we have in the Middle East is much more conservative than in the U.S.," says Ahmed Aldoseri, director of information and communication technologies at the Telecommunications Regulatory Authority.

Freedom of speech is guaranteed in Bahrain, Mr. Aldoseri says, "as long as it remains within general politeness."

Makers of Web-filtering technology say they can't control how customers use their products. "You can add additional websites to the block list," says Joris Evers, a McAfee spokesman. "Obviously what an individual customer would do with a product once they acquire it is beyond our control." A spokesman for Blue Coat made similar points.

There are no special export restrictions on Web-filtering technology. Anti-censorship advocates say there needs to be a way for companies to track how their filtering software is used.

"They could build into the software something that signals and, in fact, sends back to them exactly what kind of filtering is taking place," says Jonathan Zittrain, a professor of law and computer science at Harvard Law School. "There's no rocket science there, it's just their customer wouldn't like it."

Web-blocking companies declined to name their Middle Eastern customers, but The Wall Street Journal identified a number of them through interviews with ISPs, a reseller and former employees. In addition, OpenNet Initiative, made up of Harvard and University of Toronto researchers who study Internet filtering, identified three ISPs in Yemen, Qatar and the UAE that were using Netsweeper in January. ISPs provide Internet access to households and companies.

A Netsweeper official said the company doesn't comment on its clients.

According to a forthcoming report from OpenNet, ISPs in at least nine Middle East and North African countries have used "Western-made tools for the purpose of blocking social and political content, effectively blocking a total of over 20 million Internet users from accessing such websites."

Employees at ISPs in the Middle East said in interviews that government ministries give them databases of Internet addresses, including, at times, antigovernment sites, for blocking and that they must comply. The number of requests varies by country.

Mishary Al-Faris, quality assurance manager at Qualitynet in Kuwait, says his ISP, which uses SmartFilter, receives several requests a year from the government to block content deemed religiously offensive. "It's kind of a gentlemanly understanding: 'We're going to honor your requests,'" he says.

Web-filtering isn't exclusively a tool of Internet censorship. As companies like McAfee, Blue Coat and Netsweeper note, their technology can prevent youngsters from encountering pornography and protect ISPs from malicious cyber attacks.

In recent years, American companies aggressively have sought new customers abroad.The global Web-security market, including filtering, was valued at $1.8 billion in 2010, according to Phil Hochmuth of market-research firm IDC. The Middle East and Africa accounted for about $46 million and is growing at about 16% a year, he says.

China is considered the king of Web filtering, with its elaborate censorship system dubbed the "Great Firewall." China's technology remains unclear but its reach is vast: Local Chinese sites must be licensed and are required to remove any content the government deems objectionable. In addition, some major foreign sites, including Facebook, Twitter and Google Inc.'s YouTube, have been blocked for more than a year.

Middle East Web blocking has some differences. Government licenses for websites typically aren't required. Another difference: In the Middle East the ISP will generally show an explicit notice saying a site has been blocked, whereas in China it is often unclear why a site becomes inaccessible.

Blocking websites can be done with hardware, specialized software or a combination of the two. On a basic level, Web filtering works this way: First, a list is built that groups websites into categories such as "gambling," "dating" or "violence." Netsweeper says it has categorized more than 3.8 billion Web addresses and adds 15 million a day. Then, a user of the software can use that list to block access to specific sites or categories.

Companies like Websense and Netsweeper can now scan and categorize the content of an uncategorized page in real time. They can also block pieces of a site, rather than whole pages, if only a certain image or text is considered objectionable.

The use of filtering to block websites could be seen this month in Bahrain, where a group of mostly Shia protesters took aim at the country's Sunni ruling family and met a violent crackdown. Batelco, Bahrain's main ISP, filters the Web using McAfee SmartFilter software and Blue Coat technology, according to Ali AbuRomman, who works on the network team. He says the government regularly uploads lists of websites to block, including some political sites, to the country's ISPs.

In a test on a Batelco connection in Bahrain in recent days, The Wall Street Journal found that online-community forums for Shia villages and the websites of at least two human-rights groups were censored.

"Site blocked," the screen read in English and Arabic when a Journal reporter tried to view the sites. "This website has been blocked for violating regulations and laws of Kingdom of Bahrain."

Since 2009, Bahrain has had the power to order the blocking of websites for "transgressing local values and impairing national unity," according to the U.S. State Department.

Also blocked during the Journal test was Malkiya.net, a news site and discussion forum for Malkiya, a mostly Shia fishing town that has seen antigovernment protests in recent years. Its owner, Ali Mansoor Abbas, says the site also was blocked after it covered protests over the seizure of part of a local beach by a cousin of Bahrain's king.

Mr. Aldoseri, the Bahrainian telecom official, says his country plans to switch in the next few months from SmartFilter to technology from Palo Alto Networks. It can block activities within websites, like video or photo uploading, or Internet tools that let users bypass blocking altogether, which are illegal in Bahrain.

Middle East Web filtering has sparked a cat-and-mouse game to outfox the censors. Website owners like Mr. Abbas of Malkiya.net sometimes create "mirror" sites, with slightly different names.

Walid Al-Saqaf, a graduate student and former journalist from Yemen who now lives in Sweden, engineered his own circumvention tool after his news-aggregation site, YemenPortal.net, which included antigovernment content, was blocked by the country's filters. Known as Alkasir, the Arabic word for "circumventor," his free program has attracted at least 16,000 users in Yemen, China, Iran and elsewhere, he says.

Two years ago, OpenNet Initiative researchers found that Yemen was using filtering software from Websense to block privacy tools. In response, the company said it stopped providing the ISPs involved with its latest website-block lists since the ISPs violated its anticensorship policy.

The new OpenNet report says Websense tools and services appeared to still be used in Yemen as recently as August. The company declined to comment. The report also found that in January, new filtering software was being used in Yemen from Canadian firm Netsweeper.

"Filtering decisions are made by the entity that decides to filter," says Scott O'Neill, Netsweeper's director of sales and marketing. "Much as Ford Motor Co. can't decide how [its customers] are going to drive their cars."

An informational company document says telecom companies can use Netsweeper to "block inappropriate content using [a] pre-established list of 90+ categories to meet government rules and regulations—based on social, religious or political ideals."

Emirates Integrated Telecommunications Co., or Du, one of the UAE's main ISPs, decided last year to switch to Netsweeper from the filtering system it had been using with Blue Coat devices, says Abul Hasan Jafery, a technical consultant who helped implement Netsweeper's filtering system there.

"We block malware, alternative lifestyles, profanity," says Mr. Jafery. "If something is offensive to the religion, we block it."

Until recently, Tunisia had some of the most pervasive Internet filtering in the world, according to OpenNet. Then, a January popular revolt forced the resignation of the country's president—triggering the wave of protests that have spread across the Middle East.

Tunisia has since pulled the plug on its Web-blocking gear. The new head of the Tunisian Internet Agency, Moez Chakchouk, says he was astounded when he recently visited a secured room at the state telephone company where the filtering equipment was kept.

The room was full of unfamiliar gear, says the 36-year-old computer engineer, who took the job last month. "I don't know" what it all does, he says. Mr. Chakchouk says the Interior Ministry controlled the filtering equipment since 2004, and the entire country's Internet traffic flowed through it.

For several years, according to Mr. Chakchouk, the Tunisian government used SmartFilter, which McAfee acquired in 2008. The McAfee spokesman confirmed the product has been sold in Tunisia, but declined to disclose its customers.

For better or worse, says Mr. Chakchouk, part of the legacy of Tunisia's former regime has been to leave Tunisia with some of the most sophisticated Internet-filtering equipment in the world. "I had a group of international experts from a group here lately, who looked at the equipment and said: 'The Chinese could come here and learn from you.'"

from Bloomberg, 2011-Aug-11, by Amy Thomson and Robert Hutton, with editing by Kenneth Wong:

U.K. May Block Twitter, BlackBerry Services in Future Riots

London -- David Cameron, the U.K. prime minister, said the government is considering whether it should block social-networking websites and messaging services during violent unrest after the country's worst riots since the 1980s.

The government is working with police, the intelligence services and companies to look at “whether it would be right to stop people communicating via these websites and services when we know they are plotting violence, disorder and criminality,” Cameron said today in parliament. He mentioned Research In Motion Ltd. (RIM)'s BlackBerry Messenger service as one of the tools that were used by rioters.

Police have said they are investigating the use of social- networking services such as those operated by Twitter Inc., Facebook Inc. and BlackBerry Messenger. Three people were arrested by police in Southampton, England, on suspicion of using social media and messaging to encourage rioting.

“If you try to stop people communicating, you create more of a problem,” said Jim Killock, executive director of the Open Rights Group, an organization promoting freedom of expression on the Internet. “People are angry because their freedoms are threatened.”

RIM “welcomes the opportunity for consultation” with the British government and other technology companies, according to an e-mailed statement. RIM, based in Waterloo, Ontario, also said it continues to respect both U.K. privacy laws and the Regulation of Investigatory Powers Act, which allows police to gather encrypted information that might otherwise be private as part of an investigation. Twitter spokespeople couldn't immediately be reached.

Temptations

Tactics such as blocking social networks invite comparisons with toppled Egyptian President Hosni Mubarak, said Daniel Hamilton, director of Big Brother Watch, a civil liberties group that argues for privacy and the reduction of government monitoring. The U.K. government must “avoid the temptation to engage in populist authoritarianism,” in response to the riots.

All social media will be reviewed, Cameron's spokesman Steve Field told reporters. The government is still investigating how useful and practical blocking the websites and services would be and hasn't reached any conclusion, he said.

More than 1,300 people have been arrested in the U.K. since the disorder began on Aug. 6, with 888 of those in London.

“Free flow of information can be used for good, but it can also be used for ill,” Cameron said today. “When people are using social media for violence, we need to stop them.”

from the Washington Examiner, 2011-Jun-21, by Michael Barone:

Feds crack down on campus flirting and sex jokes

When I was growing up it was widely believed that colleges and universities were the part of our society with the widest scope for free expression and free speech. In the conformist America of the 1950s, the thinking ran, few people dared to say anything that went beyond a broad consensus. But on campus anyone could say anything he liked.

Today we live in an America with enormous cultural variety in which very few things are considered universally verboten. But on campus it's different. There saying something considerably milder than some of the double entrendres you heard in cable news coverage of the Anthony Weiner scandal can get you into big trouble.

These reflections are inspired by a seemingly innocuous 19-page letter on April 4 from the Department of Education's Office of Civil Rights to colleges and universities. The letter was given prominence by Greg Lukianoff, president of the Foundation for Individual Rights in Education, which has done yeoman work opposing restrictive speech codes issued by colleges and universities.

OCR's letter carries great weight since there are few things a university president fears more than an OCR investigation, which can lead to loss of federal funds -- which amount to billions of dollars in some cases.

The OCR letter includes a requirement that universities adopt a "preponderance of the evidence" standard of proof for deciding cases of sexual harassment and sexual assault. In other words, in every case of alleged sexual harassment or sexual assault, a disciplinary board must decide on the basis of more likely than not.

That's far short of the requirement in criminal law that charges must be proved beyond a reasonable doubt. And these disciplinary proceedings sometimes involve charges that could also be criminal, as in cases of alleged rape.

But more often they involve alleged offenses defined in vague terms and depending often on subjective factors. Lukianoff notes that campus definitions of sexual harassment include "humor and jokes about sex in general that make someone feel uncomfortable" (University of California at Berkeley), "unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people" (Iowa State University) or "elevator eyes" (Murray State University in Kentucky).

All of which means that just about any student can be hauled before a disciplinary committee. Jokes about sex will almost always make someone uncomfortable, after all, and usually you can't be sure if flirting will be welcome except after the fact. And how do you define "elevator eyes"?

Given the prevailing attitudes among faculty and university administrators, it's not hard to guess who will be the target of most such proceedings. You only have to remember how rapidly and readily top administrators and dozens of faculty members were ready to castigate as guilty of rape the Duke lacrosse players who, as North Carolina Attorney General Roy Cooper concluded, were absolutely innocent.

What the seemingly misnamed Office of Civil Rights is doing here is demanding the setting up of kangaroo courts and the dispensing of what I would call marsupial justice against students who are disfavored by campus denizens because of their gender or race or political attitude. "Alice in Wonderland's" Red Queen would approve.

As Lukianoff points out, OCR had other options. The Supreme Court in a 1999 case defined sexual harassment as conduct "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." In other words, more than a couple of tasteless jokes or a moment of elevator eyes.

Lukianoff and FIRE have an admirable record of defending students' and faculty members' free speech regardless of their point of view, but anyone familiar with their work knows that the most frequent targets of campus disciplinary groups are male, conservative, religious or some combination thereof.

I wonder whether there is some connection between this and the dwindling percentage of men who enroll in and graduate from college. Are we allowing -- and encouraging -- our university administrators to create an atmosphere so unwelcoming and hostile to males that we are missing out on the contributions they could make with a college or graduate degree?

Education Secretary Arne Duncan has shown an admirable openness to argument and intellectual debate. Perhaps someone will ask him whether he wants his department to be encouraging kangaroo courts and marsupial justice on campuses across the country.

from Volokh.com, 2011-Jun-6, by Eugene Volokh:

Crime to Post Images That Cause “Emotional Distress” “Without Legitimate Purpose”

Friday, a new Tennessee law was changed to provide (new material italicized):

(a) A person commits an offense who intentionally:

(4) Communicates with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:

(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

So the law now applies not just to one-to-one communication, but to people's posting images on their own Facebook pages, on their Web sites, and in other places if (1) they are acting “without legitimate purpose,” (2) they cause emotional distress, and (3) they intend to cause emotional distress or know or reasonably should know that their action will cause emotional distress to a similarly situated person of reasonable sensibilities. So,

1. If you're posting a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you're likely a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
2. Likewise, if you post an image intended to distress some religious, political, ethnic, racial, etc. group, you too can be sent to jail if governments decisionmaker thinks your purpose wasn't “legitimate.” Nothing in the law requires that the picture be of the “victim,” only that it be distressing to the “victim.”
3. The same is true even if you didn't intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would “cause emotional distress to a similarly situated person of reasonable sensibilities.”
4. And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.

Pretty clearly unconstitutional, it seems to me.

from the Washington Examiner online, 2011-Jun-27, by Conn Carroll:

Supreme Court overturns Arizona campaign finance law

In a 5-4 decision, the Supreme Court held Monday that Arizona's public-financing election law violated the First Amendment. The Justices split along ideological lines with Chief Justice John Roberts authoring a majority opinion joined by Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Sam Alito. Justice Elena Kagan authored the dissenting opinion and was joined by Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

Under the Arizona law, candidates who agreed to certain campaign spending restrictions were eligible for an initial grant of tax payer money to run their campaigns. Publicly-funded candidates were also granted additional dollar-for-dollar matching funds if they were outspent by a privately-financed rival, or an outside group. Matching funds topped out at two times the initial grant.

The majority found that the Supreme Court's 2008 Davis v. Federal Election Commission decision, invalidating the “Millionaire's Amendment” of the McCain-Feingold campaign finance law, dictated the decision in the Arizona case. In Davis, the Court held that the McCain-Feingold law, which permitted candidates whose opponents spent more than $350,000 in personal funds to collect triple the federal contribution limit, unconstitutionally forced a candidate “to choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fundraising limitations.”

The majority acknowledged that while the Arizona law was distinguishable from the McCain-Feingold law, the differences only made the First Amendment violation worse. First, while McCain-Feingold only altered campaign contribution limits, the Arizona law directly gave the publicly-financed candidate funds. Second, the possibility of multiple publicly-financed candidates in a single race made the privately financed candidate's punishment even worse. Finally, the Arizona law also covered expenditures of outside groups meaning that privately-funded candidates could not even control whether or not publicly-funded candidates qualified for more money.

In dissent, Justice Kagan writes: "The First Amendment's core purpose is to foster a healthy, vibrant political system full of robeust discussion and debate. Nothing in Arizona's anti-corruption statute ... violates this constitutional protection."

from CNET News, 2011-Jun-27, by Declan McCullagh:

Supreme Court nixes violent video game law

In a ringing endorsement of free speech and new technology, the U.S. Supreme Court this morning struck down a California law that restricts the sale or rental of violent video games to minors.

"Even where the protection of children is the object, the constitutional limits on governmental action apply," Justice Antonin Scalia wrote in the majority opinion (PDF). The ruling was 7-2.

The Supreme Court's ruling unambiguously reaffirms that video games, which have become increasingly complex and in some cases more expensive to produce than movies, also qualify for full First Amendment protection.

Scalia noted that books often viewed as suitable for high school students are full of violent material. "Certainly the books we give children to read--or read to them when they are younger--contain no shortage of gore: Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers 'till she fell dead on the floor, a sad example of envy and jealousy.'"

The Entertainment Software Association, which represents the U.S. computer and video game industry, welcomed the ruling.

"Today, the Supreme Court affirmed what we have always known--that free speech protections apply every bit as much to video games as they do to other forms of creative expression like books, movies and music," said Michael D. Gallagher, ESA's president and CEO of the ESA, in a statement. "The Court declared forcefully that content-based restrictions on games are unconstitutional; and that parents, not government bureaucrats, have the right to decide what is appropriate for their children."

California is one of a string of states that enacted similar laws restricting minors' rights to buy violent video games--legislation that has been repeatedly rejected by lower courts. Laws in Illinois and Michigan were blocked by federal judges on First Amendment grounds in 2005, and earlier laws in Indianapolis and Missouri's St. Louis County were also shot down.

Although California's law doesn't target a specific game by name, government lawyers did single out Postal 2, which allows players to go on murderous rampages, by name. And the Federal Trade Commission has previously targeted the makers of Grand Theft Auto: San Andreas for having sexually explicit content.

The California law slaps anyone who sells or rents a "violent video game" to a minor with a $1,000 fine. That was defined as a game in which the player has the option of "killing, maiming, dismembering, or sexually assaulting an image of a human being" in offensive ways. Parents or guardians are still permitted to buy those games for minors.

Then-California Gov. Arnold Schwarzenegger signed the video game law in October 2005, but a federal judge blocked it from taking effect a few months later. The U.S. Ninth Circuit Court of Appeals upheld that decision.

In May 2009, the state of California asked the Supreme Court to overturn those decisions, saying they were incorrectly decided.

"Like other forms of unprotected speech recognized to date, the extremely violent video games at issue here serve 'no essential part of any exposition of ideas, and are of such slight social value as a step to the truth' that the government must be allowed to regulate their dissemination to minors based upon content, without running afoul of the First Amendment," California said at the time, quoting a famous 1942 Supreme Court opinion.

The Video Software Dealers Association, which subsequently changed its name to Entertainment Merchants Association, argued that the state is unreasonably trying to extend obscenity regulations--aimed at explicit pornography--to computer software.

Justices Clarence Thomas and Stephen Breyer dissented from today's ruling. Thomas said the original view of the First Amendment at the time the Bill of Rights was enacted "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."

Breyer's dissent took a different approach. He wrote: "California's law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help."

from the Australian, 2011-Jun-21, by James Allan:

Misguided legislation puts the big chill into freedom of speech

LAST night nearly 600 people in Melbourne paid to attend an evening in support of free speech. The audience and speakers were also there to support columnist Andrew Bolt who has been taken to court for an opinion he voiced in the Herald Sun. The legislation that allows that sort of speech-stifling action is terrible legislation in my view, and so I was happy to be one of five invited speakers.

The gist of my remarks were that the fight for free speech and the liberty to speak up on public issues - issues not excluding who we want to receive affirmative action or group rights-type benefits that attach only to a special few in society - is a fight that will never go away. As former US president Andrew Jackson put it, "eternal vigilance is the price of liberty".

And those who attended were not just supporting Bolt but freedom of speech and of liberty more generally. Because let me blunt. In my view this Racial Discrimination Act, the part amended by the Racial Vilification Act that gives us section 18C and in some circumstances makes hurting someone else's feelings, is awful.

Think about it. Someone's subjective sense of being offended or humiliated has been made determinative of whether an unlawful act has been committed, subject to a few exemptions in section 18D.

That's a terrible statutory provision. It ought to be repealed. Now. Yes, a judge may, perhaps, find the exemptions apply. Yes, there is some wiggle room. But even forcing someone to have to litigate constitutes a massive chilling effect on free speech. Let's face it. Not everyone has Bolt's cojones (and I know that may not have been the most felicitous way of putting the point). And not everyone has the resources of a big employer to back this sort of egregious litigation. These provisions create a sort of half-baked right not to be offended, a big mistake in my view.

So the fault lies with the legislature for passing these statutory provisions, not with the judges who have to interpret them. This is politically correct, pandering, group rights-inspired legislation.

The only sort of free speech that matters is the sort that offends some people somewhere. In a situation where all is agreement and harmony and people sitting in circles, holding hands, and singing Kumbaya, the concept of liberty and free speech does nothing. You will never have to fight for it meaning a freedom only to act or speak within the bounds of agreed opinion, good taste and proper decorum just isn't valuable. It doesn't carry with it any obvious good consequences.

The threat to our freedom of speech in the West today does not come from some Soviet-style secret police. No, it comes from turf-protecting bureaucrats who find themselves all of a sudden in the human rights game; it comes from people who want to create a right not to be offended.

Or at least not to be offended about the things that matter to them, because almost all the sorts of people who like the legislation being deployed against Bolt would be horrified to think that those in the US who are offended by the burning of the American flag ought to be able to prosecute the burners for their offended sensibilities. So what they really want is a right not to be offended, as long as it's the sort of things a good chardonnay-sipping member of the progressive elite ought to be offended about, nothing else.

But plain and simple that's a mistake. The only kind of free speech worth anything is the kind that leads to speech that offends people. And I say that knowing full well that none of us can be absolutists and there will always have to be some limits on speech, against counselling murder, say, or detailing how to make biological weapons.

But we ought to want as much scope as possible for people in a democracy to speak their minds. And precluding people from having and expressing an opinion on the problems with self-identifying as an indigenous person, or on who ought to be able to benefit from positive discrimination laws, well that's ridiculously inhibiting of free speech in my view.

I think that in any well-functioning democracy it is incumbent on all citizens to grow a thick skin. If you're offended, tell us why the speaker is wrong. Tell us why he or she is misguided or has defective moral antennae. Don't go to court and seek a court-ordered apology, or orders prohibiting publication of views you find offensive, or some two-bit judicial declaration.

And as a legislator under no circumstances pass statutes that allow for the creation of this mutant, half-baked right not to be offended. The very fact that people can be dragged through the courts - whatever the ultimate outcome - has a massive chilling effect on free speech. I know it. You know it. And our legislators ought to know it too, and do something about repealing this terrible piece of legislation.

At the end of the day those of us who want a considerable amount of scope for people to speak their minds are the optimists. We're the ones who are in the tradition of John Stuart Mill.

Recall the main ground that Mill gave for preferring very few limits indeed on what people can say. It was a consequentialist ground or justification. Leave people almost always free to speak as they like and in the ensuing battle of ideas truth will out, or in less hopeful terms, it is more likely to emerge than if people are silenced and issues are resolved by self-styled human rights experts or government appointees.

So for the benefit of getting at truth and true assertions we override hurt feelings, we ignore offended sensibilities, we discount the possibility of outright lies being spread, and we choose not to have our legislation accord with the world view of grievance industry mongers. Short of obvious, concrete, unavoidable harm to others, we let speech alone.

And underlying that rationale for lots of scope to speak our minds is a clear optimism about truth emerging in the tussle of ideas and ultimately an optimism about the views of the ordinary voter in a democracy.

In my opinion too many of the people who push these speech-limiting laws have simply lost faith in the views and beliefs of their fellow citizens. They have even lost a bit of faith in democracy itself.

Theirs is not the optimistic position. Ours is.

We are the citizens of one of the world's oldest and greatest democracies; we are not a collection of victims too offended to muster up the resources to reply on our own behalf when we disagree with others.

It is a badge of honour to live in a society that protects differences of opinion, including ones with which we vehemently disagree.

Which was why I was so delighted to have been asked to speak last night in Melbourne. James Allan is Garrick Professor of Law at the University of Queensland.

from the Inquirer UK, 2011-Jun-16, by Dean Wilson:

British student faces extradition to US over copyright infringement
Vows to fight charges

A 23-YEAR-OLD BRITISH COMPUTER STUDENT faces possible extradition to the US for linking to copyrighted content on his website.

The student, Richard O'Dwyer, was accused of copyright infringement after setting up the website TV Shack, which had links to thousands of films and tv shows, but did not directly host them.

The website was seized by US Immigration and Customs Enforcement. O'Dywer was arrested on May 23, brought to Wandsworth prison and then released on a £3,000 bail paid by his aunt.

Now he faces extradition to the US, where he could get up to five years in jail if found guilty of infringing copyrighted material, according to the Metro newspaper.

He has vowed to fight the extradition attempt and his mother has pleaded with the UK government to "bring some common sense" to the entire affair and end the extradition demands, which she called disproportionate, unnecessary and deeply truamatic.

She said that her son was foolish in not understanding the implications of copyright and said he was talented with web design, a skill he likely gained during his computer sciences studies at Sheffield Hallam University. Not properly understanding the law is unlikely an excuse that will wash with the courts, however.

O'Dywer's lawer is Ben Cooper, who is also defending alleged military hacker Gary McKinnon, who equally faces extradition to the US. This is a much less serious crime than McKinnon's and Cooper has prepared a number of defence arguments, including the fact that O'Dwyer never hosted the copyright content himself and that the server was not based in the US and therefore he should not be extradited to there.

O'Dwyer is due in court again on September 12.

from New Scientist, 2011-Jun-3, by Jacob Aron:

New media laws could mean jail for ordinary users

Regulating the internet is no easy task, as a recent string of technology-related bills proposed by US legislators shows. Poor wording and a lack of understanding of the underlying technology could put ordinary internet users at risk of breaking the law - even though supporters of the new bills say they wouldn't be targeted.

One bill, put forward by Senators Amy Klobuchar, John Cornyn and Christopher Coons, aims to make it a crime to stream copyrighted material, but as Techdirt points out, the wording of the bill as it currently stands could make simply embedding a YouTube video an illegal act.

The bill is intended to target streaming websites that provide entire movies for free, but uses the phrase "public performance by electronic means" without clearly defining it. Is embedding a video a performance? It's an important question, because the bill also imposes a jail term of up to five years for ten such "performances".

Another bill, recently signed into law by the governor of Tennessee, makes it illegal to share your password for media streaming services such as Netflix or Hulu. Anyone who allows friends or families to use their login details to access these services could potentially face a one-year jail sentence and a $2500 fine for stealing media worth $500 or less.

The new law updates existing legislation that makes it illegal to use services such as cable television or restaurants without paying, updating the wording to include "entertainment subscription services", but it seems Netflix doesn't see the need for such an update. The compoany told MediaBeat:

These flawed bills come shortly after the proposal of the controversial Protect IP Act, which would give the US Department of Justice the power to block non-US websites hosting copyright-infringing material. The Act would also require search engines to remove links to such sites.

Google's chaiman, Eric Schmidt, has spoken out against the bill, saying it "sets a very bad precedent".

from TechDirt,com, 2011-Jun-1, by Mike Masnick:

Senators Want To Put People In Jail For Embedding YouTube Videos
from the not-understanding-the-technology dept

Okay, this is just getting ridiculous. A few weeks back, we noted that Senators Amy Klobuchar, John Cornyn and Christopher Coons had proposed a new bill that was designed to make "streaming" infringing material a felony. At the time, the actual text of the bill wasn't available, but we assumed, naturally, that it would just extend "public performance" rights to section 506a of the Copyright Act.

Supporters of this bill claim that all it's really doing is harmonizing US copyright law's civil and criminal sections. After all, the rights afforded under copyright law in civil cases cover a list of rights: reproduce, distribute, prepare derivative works or perform the work. The rules for criminal infringement only cover reproducing and distributing -- but not performing. So, supporters claim, all this does is "harmonize" copyright law and bring the criminal side into line with the civil side by adding "performance rights" to the list of things.

If only it were that simple. But, of course, it's not. First of all, despite claims to the contrary, there's a damn good reason why Congress did not include performance rights as a criminal/felony issue: because who would have thought that it would be a criminal act to perform a work without permission? It could be infringing, but that can be covered by a fine. When we suddenly criminalize a performance, that raises all sorts of questionable issues.

Furthermore, as we suspected, in the full text of the bill, "performance" is not clearly defined. This is the really troubling part. Everyone keeps insisting that this is targeted towards "streaming" websites, but is streaming a "performance"? If so, how does embedding play into this? Is the site that hosts the content guilty of performing? What about the site that merely linked to and/or embedded the video (linking and embedding are technically effectively the same thing). Without clear definitions, we run into problems pretty quickly.

And it gets worse. Because rather than just (pointlessly) adding "performance" to the list, the bill tries to also define what constitutes a potential felony crime in these circumstances:

the offense consists of 10 or more public performances by electronic means, during any 180-day period, of 1 or more copyrighted works

So yeah. If you embed a YouTube video that turns out to be infringing, and more than 10 people view it because of your link... you could be facing five years in jail. This is, of course, ridiculous, and suggests (yet again) politicians who are regulating a technology they simply do not understand. Should it really be a criminal act to embed a YouTube video, even if you don't know it was infringing...? This could create a massive chilling effect to the very useful service YouTube provides in letting people embed videos.

from IDG News Service, 2011-May-26, by Grant Gross:

Senate panel approves controversial copyright bill

A U.S. Senate committee has unanimously approved a controversial bill that would allow the U.S. Department of Justice to seek court orders requiring search engines and Internet service providers to stop sending traffic to websites accused of infringing copyright.

The Senate Judiciary Committee approved the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PROTECT IP Act, which would also allow copyright holders to seek court orders requiring payment processors and online ad networks to stop doing business with allegedly infringing websites.

The bill, introduced two weeks ago, now awaits approval by the full Senate.

The legislation will allow the DOJ to target the "worst of the worst" foreign websites dedicated to digital piracy or selling counterfeit goods, said Senator Patrick Leahy, a Vermont Democrat and lead sponsor of the bill. Intellectual property theft is "unacceptable," Leahy, chairman of the committee, said in a statement.

"Few things are more important to the future of the American economy and job creation than protecting our intellectual property," Leahy added. "At a time where our country is beginning to regain its economic footing, businesses face an additional hurdle, the severity of which is increasing by the day -- digital theft."

Several groups criticized the bill. A recent paper from five Internet engineers said the bill could "threaten the security and stability of the global DNS" by encouraging widespread circumvention of DNS (domain name system) filters.

The bill would do little to stop copyright infringement online while opening up payment processors and online ad networks to multiple lawsuits from copyright holders, added Sherwin Siy, deputy legal director for Public Knowledge, a digital rights group.

The PROTECT IP Act "threatens the security and global functioning of the Internet, and opens the door to nuisance lawsuits while doing little if anything to curb the issues of international source of illegal downloads the bill seeks to address," he said in a statement.

The bill would create a list of blocked Internet sites, added Ed Black, president and CEO of the Computer and Communications Industry Association, a tech trade group. "At a time when U.S. businesses are increasing[ly] confronted with barriers to Internet trade and censorship abroad, a government committed to Internet openness should not be in the business of blacklisting Internet sites," he said in a statement.

Several other groups, including the Motion Picture Association of America and the U.S. Chamber of Commerce, applauded the committee's vote, however.

The National Cable and Telecommunications Association, a trade group representing ISPs that could be targeted by court orders authorized in the bill, also voiced support for the legislation.

"By cracking down on rogue websites that have for too long encouraged the theft of valuable content and intellectual property, the PROTECT IP Act of 2011 sends a strong message that this illicit practice will no longer be tolerated," NCTA President and CEO Michael Powell said in a statement.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

from the Wire Report of Canada, 2011-May-27:

U.S. Protect IP Act stalls in Senate

Democratic Senator Ron Wyden announced Thursday that he is blocking a Senate committee motion to proceed with U.S. anti-piracy bill S. 968, the Protect IP Act, citing concerns about freedom of speech and technological innovation.

“Consistent with Senate Standing Orders and my policy of publishing in the Congressional Record a statement whenever I place a hold on legislation, I am announcing my intention to object to any unanimous consent request to proceed to S. 968, the PROTECT IP Act, Wyden said in a statement.

He said the costs of the legislation, similar to a bill introduced last year known as the Combating Online Infringement and Counterfeits Act, outweigh the benefits.

“I understand and agree with the goal of the legislation, to protect intellectual property and combat commerce in counterfeit goods, but I am not willing to muzzle speech and stifle innovation and economic growth to achieve this objective. At the expense of legitimate commerce, [the Protect IP Act] takes an overreaching approach to policing the Internet when a more balanced and targeted approach would be more effective. The collateral damage of this approach is speech, innovation and the very integrity of the Internet,” he said.

The Senate Judiciary Committee unanimously approved the legislation Thursday but Wyden's objection puts it on hold.

The Protect IP Act is intended to provide powers to the U.S. Attorney General to bring court actions against “rogue sites” that infringe copyright or facilitate its infringement.

Web service companies such as Google Inc., Yahoo! Inc., Ebay Inc., and PayPal oppose the bill.

But a coalition of about 170 businesses and associations, including Nike Inc., Ford Motor Co., the Motion Picture Association of America and NBC Universal, have sent a letter to the committee expressing their support for the legislation.

The Conservative government's former omnibus copyright reform legislation, Bill C-32, contained a similar provision to limit web services that enable copyright infringement.

The bill is expected to be reintroduced in the fall.

from the Wall Street Journal, 2011-Apr-27, by David Marston and John Yoo:

Political Privacy Should Be a Civil Right
In NAACP v. Alabama the Supreme Court upheld the right to free and discreet association.

Suppose that during the civil rights movement segregationist governors ordered all state contractors to disclose their political donations in an attempt to expose civil rights supporters to harassment and retaliation. The Supreme Court would have had none of it.

In NAACP v. Alabama (1958), the court barred Alabama from forcing the NAACP to disclose its members. Those justices would have struck down a similar effort to force the release of the NAACP's financial supporters. They would have rightly viewed it as an infringement of the constitutional right to free association and free speech.

Today President Obama is ignoring the lessons of the civil rights era he claims to revere. According to a draft executive order leaked last week, Mr. Obama plans to require any company seeking a federal contract to disclose its executives' political contributions over $5,000—not just to candidates, but to any group that might make "independent expenditure" or "electioneering communication" advertisements.

If a small businesswoman wants to sell paper clips to the Defense Department, Mr. Obama would force her to reveal contributions to groups such as Planned Parenthood or the National Rifle Association. These donations are obviously irrelevant to whether she made the most reliable bid at the lowest price. The only purpose of the executive order is to dangle the specter of retaliation (by losing her contracts) and harassment (from political opponents).

It would be comforting if this order had been some aberration produced from somewhere deep in the bowels of the federal bureaucracy. Unfortunately, it was not. This order represents the latest salvo in the Obama administration's war on the First Amendment rights of its political opponents.

The conflict goes back to January 2010, with the Supreme Court's decision in Citizens United v. Federal Election Commission. The court held as unconstitutional the McCain-Feingold Act's limits on the political spending of corporations, unions and other groups. Mr. Obama struck back, claiming that the decision "strikes at our democracy itself." He trotted out the usual suspects—"big oil, Wall Street banks, health-insurance companies and other powerful interests"—as the winners. He promised that the White House would "talk with bipartisan congressional leaders to develop a forceful response to this decision."

There was no bipartisanship, but there was certainly a forceful response. Democrats proposed the Disclose Act, which would have muzzled political speech by prohibiting federal contractors from making contributions to federal candidates or parties. Though the act failed to overcome a filibuster last year in the Senate, its supporters remain undeterred.

Having failed to undo Citizens United by legislation, Mr. Obama apparently believes that he can veto the Supreme Court by naked presidential fiat. But before the administration barrels through with this attempt to suppress corporate political activity, it would do well to revisit NAACP v. Alabama.

The court declared that the privacy of group membership and political activity were critical to the "effective advocacy of both public and private points of view, particularly controversial ones." Privacy can be critical for free speech. "Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs," Justice John Marshall Harlan wrote for a unanimous court.

The court went on to recite a litany of potential retaliation—"economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility"—that could deter people from publicly supporting the NAACP. It did not matter, the justices observed, that the harassment would likely come from "private community pressures." What mattered is that such pressure would be prompted by "the initial exertion of state power."

Our era of instant mass communication exponentially multiplies this threat. Supporters of California's Proposition 8, which bars gay marriage, have faced relentless harassment after a federal court refused to bar the disclosure of their identities in 2009. Opponents promptly created a website that used the Prop 8 list to create a map of donors' homes. Widespread intimidation followed: Some Prop 8 supporters were fired from their jobs, and several of their businesses were boycotted.

Mr. Obama's executive order threatens to replicate the Prop 8 experience on a nationwide scale. In fact, it requires the release of contractors' political contributions in a publicly available electronic database to be posted online as soon as possible. It shouldn't matter here that disclosure would be the price for doing business with the government. In Boy Scouts of America v. Dale (2000), the Supreme Court made it clear that a group did not have to give up its right to associate in exchange for some government benefit.

Civil libertarians and liberals have so far been mum in the face of Mr. Obama's executive order. They're likely justifying their silence on the basis that businesses—not unions—will suffer. But if the president succeeds in reducing the free-speech rights of business today, it will be far easier to limit the same rights of other Americans tomorrow.

Imagine the outcry we'll hear from self-described First Amendment supporters when every professor applying for a government research grant has to disclose his political donations.

Mr. Marston is a lawyer and former U.S. attorney in Philadelphia. Mr. Yoo, a law professor at the University of California Berkeley and a scholar at the American Enterprise Institute, served in the George W. Bush Justice Department.

from the New York Times, 2011-May-12, printed 2011-May-13, p.A1, by Stephanie Strom:

I.R.S. Moves to Tax Gifts to Groups Active in Politics

Big donors like David H. Koch and George Soros could owe taxes on their millions of dollars in contributions to nonprofit advocacy groups that are playing an increasing role in American politics.

Americans for Prosperity, a libertarian group that opposes many of President Obama's policies, has been generously financed by David H. Koch, a billionaire.

Invoking a provision that had rarely, if ever, been enforced, the Internal Revenue Service said it had sent letters to five donors, who were not identified, informing them that their contributions may be subject to gift taxes depending on whether the donations exceeded limits under the tax laws.

These advocacy groups have been drawing more scrutiny, from President Obama as well as others, as they have proliferated and funneled vast sums of money in support of campaigns and causes, without having to publicly disclose their donors.

During the midterm cycle, for example, groups like Crossroads GPS, which has ties to the Republican strategist Karl Rove, and Americans for Prosperity, backed by Mr. Koch and his brother Charles, were heavily involved in politicking, spurring campaign finance watchdogs to complain that they were flouting election and nonprofit laws.

Spokesmen for the Koch brothers and for Mr. Soros would not comment as to whether they had paid gift taxes on these types of donations, or whether they had received letters from the I.R.S.

These organizations were established as nonprofit corporations under a section of the tax law, 501(c)(4), and the rules governing them say their primary purpose cannot be political.

The timing of the agency's moves, as the 2012 election cycle gets under way, is prompting some tax law and campaign finance experts to question whether the I.R.S. could be sending a signal in an effort to curtail big donations.

“There are a whole heck of a lot of people misusing (c)(4) groups as a means of getting around campaign finance regulations, and we lack a coherent system of laws to deal with that,” said Donald B. Tobin, a legal expert on campaign finance and tax laws at the Moritz College of Law at Ohio State University. “Now here's a stick, frankly, that says there are consequences for doing that.”

In a statement released Thursday, Michelle L. Eldridge, a spokeswoman for the I.R.S., said that the inquiries were initiated by agency employees, not White House or other Obama administration officials, “as part of their increased efforts in the area of nonfiling of gift and estate tax returns.”

The letters informed donors that investigations had been opened to determine why a gift tax form had not been filed, and requested that donors submit records of all donations in the year 2008, according to a redacted copy obtained by The New York Times.

While tax lawyers who learned of the investigations have been issuing warnings to clients of potential trouble on a broader scale, the I.R.S. statement denied casting a wider net, “These examinations are not part of a broader effort looking at donations to 501(c)(4)'s.”

The White House would not comment. Some members of Congress have been asking the I.R.S. to investigate the tax-exempt status of these groups, too, although lawmakers have also cautioned that since the Nixon years, the agency has been strictly prohibited from what could be considered politically motivated inquiries.

Still, experts are sensing that the message being sent may deter large donations to these groups, at a time when big corporate, union and like-minded political contributions are expected to flood the election cycle through the barriers lifted by last year's Supreme Court ruling in the Citizens United case.

Both major political parties and candidates have benefited from these types of organizations, but the Republican groups grew in force and size after the 2008 election, partly in recognition of Mr. Obama's proficiency at fund-raising. For example, Mr. Rove's group, one of the best known from the 2010 midterm cycle, raised $70 million. Americans for Prosperity, a libertarian group that is opposed to many of President Obama's policies, has been generously financed by David Koch.

Democrats have embraced the model, too. Bill Burton, Mr. Obama's former deputy press secretary, was skewered by critics of these groups for creating Priorities USA Action to help Democrats. In 2009 and 2010, Mr. Soros, the billionaire investor, donated more than $12 million to advocacy groups.

In general, individuals incur gift taxes of 35 percent on any amount exceeding $13,000 in a year, with a limit for couples of $26,000. A lifetime exemption covers $5 million in gifts — to be reduced to $1 million in 2013 — but experts say many wealthy donors are likely to have used that in their estate plans.

The I.R.S. definitively declared these gifts taxable in 1982. “That was their last word on it, so these letters just look like a sort of trap for the unwary, which is not fair,” said Ofer Lion, a lawyer who has written about the issue.

In December, after the 2010 midterm elections, officials with the I.R.S. division that oversees tax-exempt organizations indicated it would pay closer attention.

But at a meeting of an American Bar Association subcommittee last Friday, they were surprised to learn that their colleagues in the estate and gift tax unit also had an increased interest, according to lawyers who were there.

“I don't know how extensive this effort is, but I have one such client and I've spoken with others with clients who have received similar letters,” said Gregory L. Colvin, a lawyer specializing in nonprofit law.

Other groups rarely receive donations big enough to incur the gift tax, which is why many of them have established affiliated charities. Charities, unlike almost all other tax-exempt organizations, offer their donors a tax deduction and so attract large gifts.

Big donations to the largely unregulated 527 groups that were influential in the 2004 election cycle are not subject to the gift tax. “Congress specifically exempted donors to 527 organizations from the gift tax in 2000, but it didn't exempt contributions to (c)(4) groups because there wasn't an issue at the time,” said Alan P. Dye, a lawyer who represents a number of conservative advocacy groups. Now that the Citizens United case permits big donors like corporations and unions to spend money in elections, Mr. Dye added, “I think it's going to be really interesting to see how this plays out in Congress or the courts.”

In the meantime, Marcus S. Owens, a lawyer who represents nonprofits and who formerly headed the I.R.S. division that oversees tax-exempt organizations, predicted that the tax agency's moves would be watched warily by contributors. “The lack of clarity and the potential for not-insignificant taxation on these gifts will cause many of the biggest donors to think twice,” he warned.

from the Wall Street Journal, 2011-May-18:

The IRS Gets Political
The taxman goes after campaign donors.

We're starting to see a pattern here. Since the Supreme Court restored the First Amendment rights of businesses and unions in last year's Citizens United ruling, Democrats have been searching for a way to claw back control over political speech. The latest bureau to get the memo is the Internal Revenue Service, which may retroactively tax top donors to political advocacy groups.

In the crossroads, er, cross-hairs, are nonprofit groups that register under section 501(c)(4) of the tax code and spent millions on political advertising in the last election cycle. Big donations to those groups, the agency now says, should have been subject to gift taxes and may be owed retroactively. In a letter to one donor, the IRS noted that it "had received information that you donated cash to . . . an IRC Section 501(c)(4) organization . . . and your contribution should have been reported on your 2008 federal gift tax return."

The letters are especially odd since the purpose of the gift tax has traditionally been used in coordination with the estate tax, to prevent people from avoiding the tax by divesting their wealth before they die. Contributions to 501(c)(4)s aren't a routine death tax avoidance mechanism, and the contributions now under scrutiny are a pittance compared to overall gift tax revenues. So, hmmm, what could be the reason to start asserting the provision now, and only against a handful of high-profile political donors?

IRS spokesman Michelle Eldridge said in a statement last week that the letters are the idea of career IRS employees, not the White House, and that they are part of a larger investigation of gift tax compliance. Count us skeptical that a new targeted enforcement plan, likely coordinated between at least two of the highly compartmentalized divisions of the IRS, was just cooked up by some career guys.

But even if the Obama Administration doesn't deserve primary credit for this idea to chill political activity, it will still serve the Democrats' purpose in time for 2012 fundraising. A tax probe of donations given by a specific class of political donors is a boldfaced attempt to punish and discourage political speech.

The IRS also says the investigations into a few deep-pocketed donors isn't the prelude to a broader offensive against the groups. Nah, that would mean they were taking their cues from liberal campaign finance groups like Democracy 21, which has been flogging this idea as a way to impose greater disclosure requirements. Last September, Montana Democrat Max Baucus wrote a letter to IRS Commissioner Doug Shulman to suggest he start investigating the political groups.

We wish we were shocked, but the plan is merely the latest play by Democrats to crack down on donors who support their opponents. In 2010 they tried and failed to pass the Disclose Act, which would have forced disclosure on business donations but left unions alone.

This year they've turned to harassment by regulation, first asking the Federal Communications Commission to require groups that run political ads to disclose their high-dollar donors. The Obama Administration is also working up an executive order to require anyone bidding for a federal contract to disclose if the company or its executives donated more then $5,000 to independent groups.

Now comes the 501(c)(4) net, which may catch the likes of liberal uber-donor George Soros, though we'd bet he's happy to lend his name to the project to create an appearance of nonpartisanship. The real targets of the disclosure project are conservative groups like Crossroads GPS and Americans for Prosperity, which have seen their fundraising and influence grow in recent years.

All this is done in the name of "transparency," which is a nice way of saying, we know where you live. The real goal is to intimidate business and big donors from giving money to Republicans. The draft executive order aiming to wrest disclosure from federal contractors appears to make no such demands on federal labor unions, which had their free speech rights restored alongside business in Citizens United.

Our support for donor disclosure over the years has always been contingent on ending all restrictions on campaign donations. But the campaign finance scolds who are allied with Democrats, such as Democracy 21 and Norm Ornstein of the American Enterprise Institute, are trying to use disclosure as a political weapon now that the Supreme Court has declared their other ideas illegal. Unleashing the IRS is an especially nasty turn.

from Politico.com, 2011-Apr-19, by Kenneth P. Vogel:

W.H. mulls limits to anonymous gifts

The Obama administration is considering a number of measures to compel disclosure of the kind of anonymous campaign contributions that helped finance millions of dollars of attack ads against Democrats during the 2010 elections.

The White House last week began circulating a draft executive order that would require companies seeking government contracts to disclose contributions – including those that otherwise would have been secret – to groups that air political ads attacking or supporting candidates.

The proposed order follows several actions by regulatory agencies that have a similar intent of making corporate and individual donations more transparent.

Last month the Securities and Exchange Commission issued a decree that could result in shareholders having more say in corporate election spending. Democratic appointees to the Federal Communications Commission and Federal Election Commission are pushing measures that could make public currently anonymous contributions to outside groups.

The Democratic FEC commissioners are also trying to restrict political spending by U.S. subsidiaries of foreign corporations.

Taken together, the moves represent a broad administrative push to implement reforms that Congress failed to pass last year to blunt the impact of the Supreme Court’s decision in Citizens United vs. FEC in January 2010.

That decision prompted a deluge of outside advertising that liberals say favored Republicans in the 2010 midterm elections.

Administration critics, including the powerful U.S. Chamber of Commerce, are seizing on the White House’s draft executive order, in particular, as evidence of an attempt to use executive power to punish or silence political adversaries, while rewarding supporters.

Calling the draft executive order “an affront to the separation of powers … (and) to free speech,” chamber spokeswoman Blair Latoff said it “lays the groundwork for a political litmus test for companies that wish to do business with the federal government” and is “less about disclosure than intimidation.”

But congressional Democrats and White House allies applauded the draft executive order as an overdue effort to prevent the 2012 elections from being hijacked by undisclosed big moneyed special interests – on both sides of the partisan divide.

“The fact that congressional Republicans may oppose disclosure does not mean that efforts to obtain it are, by definition, partisan,” said Fred Wertheimer, president of Democracy 21, a non-profit group that pushes for stricter campaign finance rules, and that opposed Citizens United in its Supreme Court challenge.

Wertheimer pointed out that Democrats are planning their own big spending groups to counter those established by Republicans in the wake of Citizens United and called “disclosure of secret contributions being spent to influence federal elections … essential public policy.”

Craig Holman, a campaign finance lobbyist for Public Citizen, acknowledged that the Republican takeover of the House and narrowing of the Democratic majority in the Senate in the 2010 midterms puts the onus on the Obama administration to use executive power to tighten campaign finance disclosure and other rules.

“I would have liked to see (Obama) play a more active role administratively on a lot of these reform efforts, but I hope this (executive order) is a signal that the White House is going to get more involved in the regulatory approach, because they can achieve a great deal through executive order,” said Holman.

Holman worked with the administration and its congressional allies last year on a bill to respond to the Citizens United decision by forcing groups airing certain ads to name their top five donors on screen and on their websites. That bill would also have limited political ad spending by companies with government contracts or that received government bailouts from the Troubled Asset Relief Program, as well as those with more than 20 percent foreign ownership.

The bill, called the DISCLOSE Act (short for “Democracy Is Strengthened by Casting Light On Spending in Elections”) last year passed the Democratic-controlled House, but died in the Senate.

A related House bill to require shareholder approval before a publically traded corporation could spend money on politics never came up for a full House vote.

One Democratic congressional aide, who requested anonymity to talk about interactions with the White House, said that Democratic House members had made clear that “there was interest in the House in trying to get the White House to do whatever they could do within their constitutional power” to move the issue.

The draft executive order, which the White House is circulating for comment among agencies, says its goal is to “increase transparency and accountability” and “ensure the integrity of the federal contracting system” by requiring companies submitting bids for federal work to disclose contributions made within the last two years by their officers and directors to federal candidates and parties.

Such contributions already have to be reported to the FEC, but the executive order also would require disclosure of contributions or expenditures made by a company’s officers and directors, as well as the company and its affiliates, to support candidates, including those “made to third party entities with the intention or reasonable expectation that parties would use those contributions to make independent expenditures or electioneering communications.”

That last phrase seems an effort to directly address spending by groups registered under sections of the tax code that don’t require disclosure of donors, such as the chamber – which is registered under section 501(c)6 – and Crossroads Grassroots Policy Strategies, which is registered under section 501(c)4.

An administration official stressed that the executive order, which cites state “pay-to-play” laws as a model, “is a draft ... that is still moving through the standard review and feedback process” and “is not a final document.” But the official, who requested anonymity to discuss the working draft, said Obama “is committed to an overhaul of government contracting policies to promote accountability, transparency and competition.”

The executive order seems likely to quiet some criticism Obama has been facing from advocates for stricter campaign finance regulations. They contend Obama has failed to live up to his campaign promise to reduce the influence of big money in politics.

They have also criticized him for not overhauling the perpetually gridlocked FEC or the presidential public financing system, and for signaling that he will again bypass the public financing system and won’t discourage outside groups from raising and spending huge sums of cash to support his reelection effort.

Hans von Spakovsky, a former GOP appointee to the FEC who first revealed the circulating draft, pointed out that it does not seem to apply to Democratic-allied groups that either receive grants from the federal government, or unions that negotiate contracts with it.

“The fact is that they’re only extending it to the one group that they think is probably going to hurt them politically, as opposed to unions and groups like Planned Parenthood, which are going to help them, shows that there is a political agenda for doing this,” he told POLITICO.

“This president in two years hasn’t made the transition from being a candidate to being a president and I think this is just also evidence of that,” he said of the executive order, asserting that it, combined with the regulatory processes at play at the FEC, SEC and FCC, represent a “very anti-democratic” circumvention of Congress.

“When the Democrats can’t get something through Congress, they turn to these regulatory agencies and try to get them to implement what they couldn’t get through legislation,” he said.

The SEC staff issued a letter late last month that cleared shareholders to learn about and vote on one corporation’s political spending, but which shareholder rights’ advocates believe will clear the way for similar actions at other corporations.

But pushes to implement aspects of the DISCLOSE Act at the FEC and FCC have been less fruitful.

At the FEC, three Democratic commissioners (all of whom predate Obama’s presidency) have tried to compel disclosure of certain secret contributions and to bar political spending by U.S. subsidiaries of foreign corporations. But their effort has been blocked by the three Republican commissioners, fueling calls for Obama to replace the commissioners from Wertheimer, Holman and other advocates for stricter campaign finance rules.

At the FCC, a petition by an advocacy group asking the agency to require on-air identification of funders of political advertisements has the support of two Democratic commissioners, but the Obama-appointed chairman, Julius Genachowski, has yet to weigh in.

Still, Sean Parnell of the anti-regulation non-profit group Center for Competitive Politics, said the technically independent regulatory processes at play at the FEC, SEC and FCC, should be viewed along with the draft executive order as “a concerted and coordinated effort to try to stifle certain voices ahead of the 2012 elections.”

Parnell, whose group filed a brief supporting Citizen United’s lawsuit against the FEC, explained “there’s simply too much activity in different corners all aimed at in one way or another undoing or limiting the First Amendment rights recognized in the Citizens United decision to believe that it’s a coincidence.”

from the Wall Street Journal, 2011-Apr-25:

The White House Wants a List
Want a federal contract? Show politicians the money.

Here's another reason to think the 2012 campaign is underway with a vengeance: If a company wants a federal government contract, from now on it will first have to disclose if the company or its executives gave more than $5,000 in political donations.

This latest federal rule comes courtesy of a new executive order now being drafted in the White House. The order would implement parts of last year's Disclose Act, which failed to pass Congress but was a favorite of Democrats because it would deter political contributions by business after last year's Citizens United v. FEC Supreme Court decision. White House press secretary Jay Carney confirmed last week that the order is in the works after former Federal Election Commission official Hans von Spakovsky obtained a copy of the draft.

The draft of the executive order describes the rule's purpose as a way to ensure the federal contracting system is free from the influence of "political activity or political favoritism." Hmmm. Last we checked, government contractors were already required to disclose contributions to candidates. The new twist here is the disclosure of donations to independent groups, a category in which conservatives outspent liberals for the first time in the last election cycle.

And what do you know? The draft order doesn't cover federal employee labor unions, the Democratic allies whose free speech rights were recognized alongside corporations in Citizens United. Nor do the disclosure requirements extend to recipients of federal grants, which often run into the millions of dollars. These donees are usually Democrats too.

Federal contracts are supposed to go to the lowest bidder, so it's hard to see how disclosure of political contributions would help contract decisions. Mandatory disclosure would impose politics on federal procurement choices as never before.

Even GOP strongman Tom DeLay never tried this one during his K Street heyday, though you can imagine the howls if he had. The closest we can come to something comparable is former Nixon henchman John Dean's memo during the Watergate era that the point of keeping an "enemies list" was to "determine what sorts of dealings these individuals have with the Federal Government and how we can best screw them (e.g., grant availability, federal contracts, litigation prosecution, etc.)."

These days the White House proxies on the political left will do the enemy listing. Disclosure may sound nice, but the real point is to put companies on notice that their political contributions will have, well, consequences. When the Disclose Act was before Congress, New York Democrat and co-sponsor Chuck Schumer made clear the bill was designed to "embarrass companies" out of exercising the rights recognized in Citizens United. "The deterrent effect should not be underestimated," he said.

Exhibit A was last year's campaign against Target Corp. When the retailer donated $150,000 to an independent group running ads in the Minnesota governor's race, MoveOn.org smeared the company as antigay, threatened a boycott, and said Target needed to be made an example of or such donations could be "the tip of the iceberg." Target stopped donating to that group.

The executive order is only the latest Democratic effort to intimidate business donors. Last month, the liberal Media Access Project asked the Federal Communications Commission to begin requiring groups that run political ads to disclose their major donors on the air, a wacky interpretation of the 1934 Communications Act. Last week, Maryland Democrat Chis van Hollen sued the FEC to demand donor disclosure.

The point of all this is to discourage political speech by certain speakers. Citizens United was a landmark victory for liberty because it blew a huge hole in the architecture of campaign finance limits that had increasingly restricted political speech. Having failed to overrule Citizens United in Congress, Democrats now want to do it via executive diktat. Remember when Barack Obama campaigned as a postpartisan who'd stop all that Washington nastiness?

from the New York Times, 2011-Apr-29, printed 2011-Apr-30, p.A1, by Jim Rutenberg:

Groups Form to Aid Democrats With Anonymous Money

MANCHESTER, N.H. — A group including former White House officials, union leaders and one of Hollywood's biggest producers have joined forces to start an outside effort to help President Obama and Congressional Democrats in 2012 by using the very sort of anonymous, unlimited donations from moneyed interests that the president has so deplored.

Co-founded by the former White House deputy press secretary Bill Burton and with seed money from the Service Employees International Union and the film producer Jeffrey Katzenberg, the group's entrée into the early 2012 contest all but ensures that the presidential race will be awash in cash from undisclosed corporate and labor sources with huge stakes in Washington policy making.

At the heart of the effort, introduced Friday morning, are two groups: Priorities USA Action, which will engage directly in electioneering backed by donors who will have to be identified but can give unlimited amounts, and Priorities USA, which will advertise about related campaign issues using money from undisclosed sources.

The effort is modeled on the one Republicans started last year — with help from the Republican strategist Karl Rove — that attacked Democrats with a barrage of advertisements, mailings and phone calls. It was widely credited with helping the party to take control of the House and diminish the Democrats' edge in the Senate last fall. One of those groups, Crossroads GPS, was set up under a section of the tax code that allowed its donors to remain anonymous, leading Mr. Obama to refer to such groups collectively as “a threat to democracy” for the way they had shielded corporate interests from view as they sought to sway elections.

Democrats had eschewed the formation of such groups last year at Mr. Obama's public urging, but after the elections in November prominent liberals vowed to form with outside groups of their own to combat the likes of Crossroads.

Speaking aboard Air Force One on Friday, the White House press secretary, Jay Carney, said that the president's views had not changed and that the administration had nothing to do with the new groups.

“We don't control outside groups,” Mr. Carney said. “These are not people working for the administration.”

The Priorities USA organizers said they hoped to raise enough money to keep pace with the Crossroads groups, which have set a goal of raising $120 million for the 2012 election cycle.

The organizers said they would coordinate their efforts with a series of other liberal groups that have formed in recent months to bolster Democrats and Mr. Obama and attack Republicans and conservatives, much the way the Crossroads groups have coordinated with like-minded organizations against Democrats.

The announcement brought immediate criticism from groups calling for tighter campaign finance restrictions, and broader adherence to existing law, that Democrats were now getting into the act themselves.

Former Senator Russ Feingold, Democrat of Wisconsin and a co-sponsor of the landmark legislation of 2002 that had placed tight restrictions on corporate giving but has since been chipped away by court rulings, said in a statement that efforts to imitate the “right-wing tactics” of Mr. Rove and others “do our nation no favors.”

Fred Wertheimer, president of the group Democracy 21, said his group was looking into filing a complaint with the Internal Revenue Service questioning the tax status of Priorities USA, saying that he was skeptical that it was serving anything other than a political purpose intended to influence the upcoming election. (The section of the tax code it was formed under — 501(c) (4) — is for groups that are not seeking to directly affect elections). He has registered a similar complaint against Crossroads GPS.

Mr. Wertheimer predicted that the 2012 campaign would have more anonymously donated money working for or against the election of federal candidates than any other has since the Watergate scandal kicked off the decades-long effort to reform the system — unless, he said, new legislative steps are taken to force greater transparency (an unlikely seeming eventuality for now given that both parties are getting so deeply involved in soliciting secret money).

Republicans seized on the formation of the group and its connections to the White House via Mr. Burton and the other co-founder of the groups, Sean Sweeney, a onetime deputy to the former White House chief of staff Rahm Emanuel, as an example of hypocrisy.

Crossroads GPS publicized Mr. Obama's remarks in Philadelphia in October questioning anonymous donations that were spent in the service of Republicans. “The American people deserve to know who's trying to sway their elections, and you can't stand by and let the special interests drown out the voices of the American people,” Mr. Obama said then.

An aide to the Senate minority leader, Senator Mitch McConnell of Kentucky, sent an e-mail quoting Mr. Burton as saying last year, “The president thinks that if you're going to participate in politics, you ought to be transparent about it.”

Coordination between outside groups and federal candidates is strictly prohibited, if hard to prove and harder still to enforce.

Asked if he had any contact with the White House on the formation of the groups, Mr. Burton said in an e-mail, “We will be clear that we cannot coordinate with anyone at the White House or on the campaign.”

Asked if the issue had come up during his time at the White House, Mr. Burton said, “Outside groups were obviously a topic of conversation” there, but “We decided to do this on our own, after we left the White House and spent a considerable amount of time thinking about it.”

He said the groups were planned strictly as a reaction to the formation of groups by Mr. Rove and the Koch family, among others, adding, “We don't think progressives should live by a different set of rules than conservatives.”

Advisers to the groups include Harold Ickes, a former Clinton White House deputy chief of staff; Ellen Malcolm, founder of Emily's List, which supports candidates favoring abortion rights; and Robert McKay, chairman of Democracy Alliance, which took a leading role in organizing liberal groups.

from the Wall Street Journal, 2010-Oct-10:

Shutting Up Business
Democrats unleash the IRS and Justice on donors to their political opponents.

If at first you don't succeed, get some friends in high places to shut your opponents up. That's the latest Washington power play, as Democrats and liberals attack the Chamber of Commerce and independent spending groups in an attempt to stop businesses from participating in politics.

Since the Supreme Court's January decision in Citizens United v. FEC, Democrats in Congress have been trying to pass legislation to repeal the First Amendment for business, though not for unions. Having failed on that score, they're now turning to legal and political threats. Funny how all of this outrage never surfaced when the likes of Peter Lewis of Progressive insurance and George Soros helped to make Democrats financially dominant in 2006 and 2008.

Chairman Max Baucus of the powerful Senate Finance Committee got the threats going last month when he asked Internal Revenue Service Commissioner Douglas Shulman to investigate if certain tax exempt 501(c) groups had violated the law by engaging in too much political campaign activity. Lest there be any confusion about his targets, the Montana Democrat flagged articles focused on GOP-leaning groups, including Americans for Job Security and American Crossroads.

Mr. Baucus was seconded last week by the ostensibly nonpartisan campaign reform groups Democracy 21 and the Campaign Legal Center, which asked the IRS to investigate whether Crossroads is spending too much money on campaigns. Those two outfits swallowed their referee whistle in the last two campaign cycles, but they're all worked up now that Republicans might win more seats. Crossroads GPS, a 501(c)(4) affiliate of American Crossroads supported by Karl Rove, is a target because it has spent millions already in this election cycle.

Last Tuesday, the liberal blog ThinkProgress, run by the Center for American Progress Action Fund, reported that the U.S. Chamber of Commerce had collected some $300,000 in annual dues from foreign companies. Since the money went into the Chamber's general fund, the allegation is that it could have been used to pay for political ads, which would violate a ban on foreign companies participating in American elections. The Chamber says it uses no foreign money for its political activities and goes to great lengths to raise separate funds for political purposes.

That didn't stop President Obama from raising the issue in a Maryland speech last week, saying that "groups that receive foreign money are spending huge sums to influence American elections." Within hours of the ThinkProgress report, the bully boys at MoveOn.org asked the Department of Justice to launch a criminal investigation of the Chamber. In a letter to the Federal Election Commission, Minnesota Senator Al Franken expressed his profound concern that "foreign corporations are indirectly spending significant sums to influence American elections through third-party groups." From the man who stole his Senate election in a dubious recount, this is rich.

Even Mr. Franken admits in his letter that the Chamber's commingling of funds in its general accounts is not "per se illegal," but apparently he thinks it's fine to unleash federal investigators because the Chamber cash might contribute to the defeat of fellow Democrats.

The outrage over the Chamber is especially amusing considering the role of foreigners in U.S. labor unions. According to the Center for Competitive Politics, close to half of the unions that are members of the AFL-CIO are international. One man's corporate commingling is another's union dues.

Unions and liberal groups are hardly cash poor this year in any case. The Campaign Media Analysis Group looked at the combined spending of candidates, their parties and outside groups and found that Democrats outspent Republicans $47.3 million to $40.8 million in a recent 60-day period.

Democrats claim only to favor "disclosure" of donors, but their legal intimidation attempts are the best argument against disclosure. Liberals want the names of business donors made public so they can become targets of vilification with the goal of intimidating them into silence. A CEO or corporate board is likely to think twice about contributing to a campaign fund if the IRS or prosecutors might come calling. If Democrats can reduce business donations in the next three weeks, they can limit the number of GOP challengers with a chance to win and reduce Democratic Congressional losses.

The strategy got a test drive in Minnesota earlier this year after Target Corporation donated $100,000 cash and $50,000 of in-kind contributions to an independent group that ran ads supporting the primary candidacy of Republican gubernatorial candidate Tom Emmer. MoveOn.org accused the company of being anti-gay, organized a petition, and crafted a TV ad urging shoppers to boycott Target stores. Target made no further donations, and other companies that once showed an interest have since declined to contribute.

***

Then there's the curious reference to the tax status of Koch Industries by White House chief economist Austan Goolsbee. In a late August conference call with reporters, Mr. Goolsbee cited the closely-held Koch as an example of "really giant firms" that pay no corporate income tax because they file under other tax rules. But how in the world would Mr. Goolsbee know Koch's tax status? Could his knowledge be related to the White House-liberal campaign against Koch for contributing to Americans for Prosperity, a group that is supporting free-market candidates for Congress this year?

In an August 9 speech, Mr. Obama personally trashed Americans for Prosperity, hinting that it was funded by "a big oil company." He had to mean Koch, which makes no secret of its support for Americans for Prosperity.

The White House didn't respond to queries about Mr. Goolsbee's remark for weeks until GOP Senators requested an investigation. The Treasury's inspector general for tax matters has since announced such a probe, and last week White House spokesman Robert Gibbs finally got around to explaining that Mr. Goolsbee's statement "was not in any way based on any review of tax filings" and that he won't use the example again.

We're glad to hear it, but pardon our skepticism given the ferocity of this White House-led campaign against businesses that donate to political campaigns. Faced with electoral repudiation as the public turns against their agenda, Democrats are unleashing government power to silence their political opponents. Instead of piling on, the press corps ought to blow the whistle on this attempt to stifle political speech. This is one more liberal abuse of power that voters should consider as they head to the polls.

from Ars Technica, 2011-May-10, by Nate Anderson:

Revised 'Net censorship bill requires search engines to block sites, too

Surprise! After months in the oven, the soon-to-be-released new version of a major US Internet censorship bill didn't shrink in scope—it got much broader. Under the new proposal, search engines, Internet providers, credit card companies, and ad networks would all have cut off access to foreign "rogue sites"—and such court orders would not be limited to the government. Private rightsholders could go to court and target foreign domains, too.

As for sites which simply change their domain name slightly after being targeted, the new bill will let the government and private parties bring quick action against each new variation.

Get ready for the "PROTECT IP Act."

Targeting Google

A source in Washington provided Ars with a detailed summary of the PROTECT IP Act, which takes its acronym from "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property." This beats the old acronym, COICA; who can be against protection? The actual legislation should be introduced shortly.

The bill is an attempt to deal with foreign sites which can be difficult for US enforcement to reach, even when those sites explicitly target US citizens.

The PROTECT IP Act makes a few major changes to last year's COICA legislation. First, it does provide a more limited definition of sites “dedicated to infringing activities.” The previous definition was criticized as being unworkably vague, and it could have put many legitimate sites at risk.

But what the PROTECT IP Act gives with one hand, it takes away with the other. While the definition of targeted sites is tighter, the remedies against such sites get broader. COICA would have forced credit card companies like MasterCard and Visa to stop doing business with targeted sites, and it would have prevented ad networks from working with such sites. It also suggested a system of DNS blocking to make site nominally more difficult to access.

The PROTECT IP Act adds one more entity to this list: search engines. Last week, when the Department of Homeland Security leaned on Mozilla to remove a Firefox add-on making it simple to bypass domain name seizures, we wondered at the request. After all, the add-on only made it easier to do a simple Google search, and we wondered "what the next logical step in this progression will be: requiring search engines to stop returning results for seized domain names?"

Turns out that's exactly what's being contemplated. According to the detailed summary of the PROTECT IP Act, this addition "responds to concerns raised that search engines are part of the ecosystem that directs Internet user traffic and therefore should be part of the solution."

Rightsholders also score a major victory with the new legislation, which grants them a private right of action—something Google publicly trashed as a terrible idea earlier this year. Copyright and trademark holders don't have to badger the government into targeting sites under the new bill; they are allowed to seek court orders directly, though these orders would only apply to payment processors and advertising networks (not to ISPs or search engines).

Help us out, please

The emphasis here is on forcing intermediaries to get involved in policing such sites. Rightsholders have had difficulty suing the millions of end users engaged in infringement, and they have had difficulty suing the sites themselves when they are based abroad. But MasterCard and Google? Those are easy, US-based targets who will comply will any law Congress passes.

The PROTECT IP Act goes even further than forcing these intermediaries to take action after a court order; it actively encourages them to take unilateral action without any sort of court order at all. The bill summary makes clear that ad networks and payment processors will be protected if they “voluntarily cease doing business with infringing websites, outside of any court ordered action.” If a search engine decides that the next YouTube is a copyright infringer—and rightsholders have often sued sites like Veoh and YouTube in the past—it can simply cut off advertising for that reason and be immunized under the law. So can Visa.

The bill also encourages everyone—domain name registries, search engines, payment processors, and ad networks—to cut off access to infringing sites that "endanger the public health." That is, online pharmacies (which are often hotbeds of counterfeiting).

Given the strong opinions elicited by the earlier COICA, the expansion of powers here is a bit surprising, but the continued presence of the legislation is not. That's because, no matter how much power and money Congress devotes to intellectual property, rightsholders are back every couple of years for more—as the NET Act, DMCA, Sonny Bono Term Extension Act, PRO-IP Act, and Anti-Counterfeiting Trade Agreement (ACTA) remind us. Each is "essential"—but somehow never quite enough.

from the Guardian of London, 2011-May-18, by Josh Halliday:

Google boss: anti-piracy laws would be disaster for free speech
Eric Schmidt claims search giant would fight attempts to restrict access to sites such as the Pirate Bay

Google's executive chairman, Eric Schmidt, warned on Wednesday that government plans to block access to illicit filesharing websites could set a "disastrous precedent" for freedom of speech.

Speaking to journalists after his keynote speech at Google's Big Tent conference in London, Schmidt said the online search giant would challenge attempts to restrict access to the Pirate Bay and other so-called "cyberlocker" sites that encourage illegal downloading – part of government plans to fight online piracy through controversial measures included in the Digital Economy Act.

"If there is a law that requires DNSs [domain name systems, the protocol that allows users to connect to websites] to do X and it's passed by both houses of congress and signed by the president of the United States and we disagree with it then we would still fight it," he added. "If it's a request the answer is we wouldn't do it, if it's a discussion we wouldn't do it."

Schmidt, who became Google's executive chairman last month after a decade as its chief executive, described website blocking as akin to China's restrictive internet regime.

"I would be very, very careful if I were a government about arbitrarily [implementing] simple solutions to complex problems," he said. "So, 'let's whack off the DNS'. Okay, that seems like an appealing solution but it sets a very bad precedent because now another country will say 'I don't like free speech so I'll whack off all those DNSs' – that country would be China.

"It doesn't seem right. I would be very, very careful about that stuff. If [the UK government] do it the wrong way it could have disastrous precedent setting in other areas."

Speaking at the same conference, the culture minister, Jeremy Hunt, said plans to block access to illicit filesharing websites were on schedule. He admitted that a "challenge" of the controversial measure is deciding which sites get blocked.

Ofcom is due to present its report on the practicability of the site-blocking measures included in the DEA to Hunt in the coming weeks.

Responding to questions about Facebook secretly hiring the public relations firm Burson-Marsteller to plant scare stories over Google's privacy policies in the US media, Schmidt said he would not comment.

However, he added: "A lot of people – not Google employees – have looked at these claims and generally found them to be false."

from IT World / IDG News Service, 2011-May-5, by Robert McMillan:

Mozilla defies DHS, won't remove Mafiaa Fire add-on
The open-source browser maker has asked for proof that its redirecting add-on is illegal

The open-source Mozilla project said Thursday it won't comply with a U.S. Department of Homeland Security request to remove a Firefox add-on that helps redirect Web traffic for sites that have been seized by the government.

At issue is the Mafiaa Fire add-on, designed to reduce the effectiveness of an antipiracy campaign by DHS's Immigration and Customs Enforcement (ICE) division. When users try to visit a website whose Internet domain has been seized by ICE, Mafiaa Fire redirects them to a working site set up to replace the seized domain.

That's a problem for the DHS, which is trying to knock these sites offline permanently. "The ICE Homeland Security Investigations unit alleged that the add-on circumvented a seizure order DHS had already obtained against a number of domains," wrote Harvey Anderson, vice president and general counsel for Mozilla, in a blog post Thursday.

In recent months, ICE has shut down a large number of websites suspected of selling illegally copied music, movies or counterfeit products. Some free-speech experts have said the seizures may violate freedom-of-speech protections in the U.S. Constitution.

The DHS did not come to Mozilla with a court order, and the group pushed back, asking for proof that Mafiaa Fire is illegal, or at least a legal reason justifying the removal of the add-on.

"To date we've received no response from Homeland Security nor any court order," Anderson said. While content companies see obvious reasons to keep these sites offline, Mozilla sees it as a question of government censorship, and whether agreeing to these informal requests might somehow "threaten the open Internet," Anderson said.

The DHS's ICE division could not immediately be reached for comment Thursday. Neither could Mafiaa Fire developers nor Mozilla's Anderson.

from TechDirt.com, 2011-Jun-2, by Mike Masnick:

The One Situation Where Record Labels Fear Federal Copyright: Old Sound Recordings
from the keep-the-public-domain-away! dept

Last year, we were among those who noted a significant problem for sound recordings from about a century ago. While under federal copyright law, works published before 1923 are in the public domain, when it comes to sound recordings, it's a different story. That's because, for quite some time, Congress did not even believe copyright law could apply to sound recordings (which is kind of funny when you realize how many in the recording industry now seem to assume that copyrights on recordings are some sort of birthright). Instead, however, various state laws covered the gap... and did so by creating copyright laws that were even more ridiculous than the federal one. Because of that, many old sound recordings may never enter the public domain, or if they do it won't be for another 50 or 60 years. And, in the meantime, many of those recordings will disappear.

This is of big concern to those who wish to preserve and share the culture from a century ago. After this issue started to get some attention, the Copyright Office agreed to look into things and just held some hearings on the issue. Copycense attended the event and shared copious tweets on the events. As an experiment, I'm going to try to collate some of the more interesting tweets, embedded below, but provide commentary here. There are a few key statements that were made that I'll address in separate posts, but this one will cover the general discussions held during the day.

What becomes clear is that there's a big divide between the legacy industry (record labels & publishers) and librarians and cultural researchers who fear that these works are dying. The people actually concerned about preserving the works are horrified at what's happening, noting that culture is disappearing -- and predominantly impacting "people of color," whose work would be freely available for all to hear if their recordings had been covered by traditional copyright, or done in any other country. Others point out that if librarians can't preserve these works, they may disappear forever.

The response from the music business guys is ridiculous -- but expected. They insist that covering these works under traditional copyright would harm artists (seriously). Rich Bengloff, the head of A2IM (mini-RIAA), insisted that covering these works under federal copyright law would "bring less investment to roots music." Huh? How does that make any sense? The RIAA also worried that there would be "costs" associated with covering these works by copyright, and that it would "raise ownership questions." This is laughable. There are already "ownership" questions, which is why we're stuck in this quagmire in the first place. The RIAA pointed out that "we have concerns that federalization would negatively affect economic value."

That, of course, is ridiculous. First, the vast majority of the works we're talking about no longer are being marketed in any way shape or form. They're disappearing. The few works that are still an issue would still have federal copyright law, which is already pretty strict. The only works that would really have a change are those from before 1923, and that's fine. It's what's good about the public domain. Thankfully, one of the representatives from library groups pointed out that work that goes into the public domain "increases value to the public," which is what copyright is supposed to be about. Furthermore, as others quite reasonably pointed out, just because something is in the public domain, it doesn't mean you can't make money off of it. Just look how many publishers make money selling public domain works.

The RIAA then tried a different tack, insisting that the libraries concerned about all this are being silly, because "according to our research," no library has been sued over this issue. Isn't that comforting? Of course, you never know when a lawsuit might be filed, and the law clearly allows one to be filed. Most libraries wouldn't take that risk. Thankfully, the brand new Registrar of Copyrights, Maria Pallante, was quick to point out that simply wishing libraries become less risk averse is not a reasonable answer here.

Hilariously, the National Music Publishers Association people (NMPA) responded to a question about how taking away 50 different state laws, and moving these works under the single, well-known, standard of federal copyright law would make things "more confusing" by claiming that it would create "uncertainty." Huh?!? On the one hand, we have 50 different, confusing and rarely tested laws. On the other, we have federal copyright law and loads of caselaw. And the NMPA is actually claiming that federal copyright law would be more confusing? Even more ridiculous is Bengloff's claim that because under those state laws most works will go into the public domain in 2067, it "makes it easy to know what we're working with." Except we also know what we're working with under federal copyright law.

Later, Bengloff claims that there's a risk because labels have "invested millions of dollars" in these works. Again, this is misleading and ridiculous. The works still covered by federal copyright would remain in the control of the copyright holders. Furthermore, someone from the Library of Congress properly pointed out that the LOC (and other libraries) have also invested millions in trying to preserve these works. A representative from libraries reminded people that the public is a stakeholder here as well (though apparently not directly represented at the hearing).

Finally, at the end of the day, the real issue makes itself known. The labels and publishers want to avoid "federalization" because they know that this would bring back "termination rights" for the musicians themselves. As you hopefully know, the labels have been vigorously fighting the fact that the musicians themselves can reclaim their own copyrights by "terminating" the copyright assignment. A decade ago, the RIAA was able to sneak a law through Congress (literally by adding a line in the middle of the night that no one noticed until after the bill passed) that turned all such recordings into "works made for hire," which removed termination rights. An outcry from artists (for once) resulted in Congress fixing that "mistake" quickly, but the labels are still infatuated with this, and are gearing up for legal fights over termination rights soon.

It appears the real issue here is that under these state laws, there are no termination rights, meaning the artists themselves can't reclaim the copyrights, and the labels and publishers get to hang onto them for a few more decades. Putting things under federal copyright law would open up an opportunity for artists to get their copyrights back. And, we can't have that.

What's really appalling here is that the label/publisher representatives still pretend to represent artists here -- and one even declares that the labels interests really are aligned with artists' interests, when the subtext of this debate shows that's not true at all.

from the Daily Mirror of London, 2011-Apr-25, by Steve Myall:

Imogen Thomas: Tory MP blurts out Premier League star's name on Have I Got News For You

A TOP Tory MP blurted out on a TV show the identity of the Premier League star who had an affair with Imogen Thomas – forcing the BBC to bleep her comments.

Louise Bagshawe, 39, a novelist and MP for Corby, came close to breaching a High Court injunction on current affairs quiz show Have I Got New For You.

She had just been shown four blacked-out images of people who have taken out injunctions in the “odd one out” round.

Miss Bagshawe said: “You're not allowed to know who they are.

“They may or may not have done something with ladies who are not their wives. One of them definitely doesn't rhyme with… even though he is a footballer.” Ian Hislop & MP Louise Bagshawe (Pic:BBC)

The BBC muted the sound while team captain Ian Hislop said: “Can somebody call the police. I'm sitting here next to a Conservative MP who's trying to break a series of super- injunctions. I'm absolutely appalled.”

Miss Bagshawe said she was considering using parliamentary privilege to name in the Commons the 30 footballers, actors and TV presenters who have won injunctions in recent weeks.

But if her comments had been broadcast on Friday she may have breached the injunction and faced a prison sentence.

Oblivious to the row her comments sparked, she later tweeted: “Thoroughly enjoyed #HIGNFY, laughed so much thought I might get a stitch.”

She later said: “The BBC were rightly cautious. I mumbled something that may or may not have rhymed with this man's name. I wasn't breaking the injunction. I had no desire to go to jail.”

Tory leader David Cameron has accused judges of using the Human Rights Act to usher in a privacy law by the back door.

The BBC declined to comment.

from Gulf News of Dubai, 2011-May-1, by Abdul Nabi Shaheen:

Royal decree issued to amend Saudi media law
Saudi Press and Publications Law protects religious figures from being targeted

Riyadh: In what is seen as a move to protect senior figures in religious establishment and other senior public officials amid growing media and internet criticism, the Saudi monarch King Abdullah Bin Abdul Aziz on Friday issued amendments to the Saudi Press and Publications Law.

The royal decree amended five articles in the Law which was issued in 2000.

One of the amendments stipulates that responsible persons in the publishing field shall be bound by objective and constructive criticism based on facts and that this criticism should be for the public interest.

The amendments make it a crime to publish any material that damages the reputation or cause insult to the kingdom's grand mufti, members of the Council of Senior Religious Scholars and government officials.

Moreover, the amendments stipulate that those in charge of publishing should not publish any materials violating Sharia, inciting division between citizens, promoting crimes or damaging the homeland's public affairs.

Penalty

According to the royal decree, whoever is found guilty can be fined up to 500,000 Saudi riyals (Dh490,000) or 1 million riyals for repeat offenders and/or a ban on their works being published or appearing in the press.

It added that establishments found guilty of violating this law will be asked to shut down temporarily or permanently. Moreover, if the violation is not deemed serious enough for closure, the establishment which publishes false information or accusations will be asked by law to publish retractions and apologies.

A special court will look at violations that are deemed to be an affront to Islam, the amendments said.

from the Wall Street Journal, 2011-Mar-7, by Paul Sonne, Max Colchester and David Roman:

Plastic Surgeon and Net's Memory Figure in Google Face-Off in Spain

In 1991, the Spanish newspaper El País published an article centered on a dispute between Madrid plastic surgeon Hugo Guidotti Russo and one of his patients over an allegedly botched breast surgery. The headline: "The Risk of Wanting to Be Slim."

Nearly 20 years later, Dr. Guidotti Russo, backed by Spain's privacy regulator, contends that the tale of the dispute is personal information and wants to purge the article from Google, where it shows up on the first page of results when his name is searched.

His complaint accounts for one of about 80 instances in which the Spanish regulator has told U.S.-based Google Inc. to remove personal information about individuals from its search results.

Google says it plans to challenge most of those orders, arguing that the agency is overstepping its authority.

In January, a Spanish court heard the first five complaints that Google is contesting, including Dr. Guidotti Russo's. Now, after weeks of deliberation, the Spanish court is considering referring the matter to the European Court of Justice in Luxembourg to clarify European privacy law, according to a person familiar with the situation.

"We're pleased that the [Spanish] court is considering asking guidance from Europe's top court on whether Spain's [data-protection agency] has overridden European law. It shows that key issues are at stake," Peter Barron, Google's head of European external relations, said in a statement.

Such a referral could pave the way for a major Europe-wide ruling on the indexing of personal data on the Web—but it also could delay a resolution for years. European lawmakers in Brussels, meanwhile, are working on an overhaul of the same European Union data-protection law the Luxembourg court could be asked to interpret.

The legal wrangle between Google and the Spanish regulator comes amid a broader debate about how much control individuals should have over their private data and reputations in the era of the Internet.

A movement has cropped in parts of Europe to create a "right to be forgotten," which would let individuals excise personal information from the Web on privacy grounds. The European Commission, as part of its data-protection overhaul, has proposed recognizing such a right. France's Senate has also approved similar proposals, which have yet to be ratified by the National Assembly.

Though freedom-of-expression provisions of Spanish law protect newspapers, legal gazettes and other publishers from government censors, the Spanish data regulator contends the protections don't extend to Internet search engines like Google.

The idea is that the Internet shouldn't retain, or remember, a citizen's personal data and leave it accessible in perpetuity.

The Spanish regulator says that in situations where having material included in search results leads to a massive disclosure of personal data, the individual concerned has the right to ask the search engine to remove it on privacy grounds. Google calls that censorship.

"Spain has always taken an extremely strong line over privacy," says Malcolm Bain, a lawyer at ID Law Partners in Barcelona who specializes in information-technology law.

That stance could benefit people like Dr. Guidotti Russo. The El País article from two decades ago says he was accused of medical malpractice in connection with the allegedly botched surgery, and that the 21-year-old plaintiff the equivalent of around $4 million in damages; it isn't clear whether she received any money. El País, which identified the plaintiff in its article only by her initials, says it stands by its article.

The newspaper isn't being asked to remove it from its own website.

Dr. Guidotti Russo, who still has his practice, says he was cleared of the charge of reckless endangerment, but declined to discuss the matter further.

The Spanish court where the legal dispute described in the 1991 article took place said the records of the proceedings were impossible to retrieve because they dated from before the country digitized court records.

Dr. Guidotti Russo's lawyer, Gabriel Gómez, says his client was cleared of any criminal wrongdoing. He argues, however, that the outcome of the 20-year-old case isn't relevant.

Mr. Gómez says that what's at stake is an individual's right to remove personal information he objects to—whether it is accurate or not.

Javier Aparicio, a lawyer representing Google, said at a Jan . 19 Spanish court hearing that Spain is the only country where the company is forced to remove links to Web pages that don't have illegal content of any kind.

In other countries, courts have asked the company to delete links to pages with material such as illegal pornography or bootleg movies or songs.

With the EU's 15-year-old data-protection law slated for overhaul within the next year or two, the issue of how to reconcile the freedom of expression with the right to privacy has become a recurrent theme in Europe. Viviane Reding, EU commissioner for justice, fundamental rights and citizenship, has introduced her own version of a right to be forgotten.

Her proposal, which is still taking shape, could allow Internet users to force websites like Facebook Inc. to permanently erase personal data about them, such as photos and e-mail addresses.

"God forgives and forgets," Ms. Reding said in a November speech. "But the Web never does." Her proposal will be up for debate for at least a year before EU lawmakers vote on a final draft.

Some privacy specialists say there is a difference between information that is part of the public record and personal data or photos submitted to a social-networking site.

"It may be that there should be a right to have your name removed from a social network where you volunteered it in the first place," says Richard Thomas, a former British data-privacy commissioner, who is now a strategy adviser to international law firm Hunton & Williams LLP. "But that's rather different from deleting altogether a record, for example, of a crime that you committed or something embarrassing from your past."

from TorrentFreak.com, 2011-Mar-7, by "enigmax":

Fox DMCA Takedowns Order Google to Remove Fox DMCA Takedowns

Sending DMCA takedown notices in bulk has become increasingly fashionable during recent years but thanks to the database at Chilling Effects, we are able to see who is sending what to whom. As concerns mount over the amount of checking carried out before items are taken down, it appears that Fox has managed to get Google to delist DMCA complaints on Chilling Effects, which were originally sent by Fox themselves and submitted to Chilling Effects by Google.

The Chilling Effects web archive was founded in 2001 as a response to the usually secretive practice of sending so-called `takedown notices' to have content removed from the web. This, according to the activists involved, was having a `chilling effect' on free speech.

In a show of openness, big companies such as Google, Yahoo, Twitter and Digg began sending DMCA takedown notices they received to Chilling Effects. In 2010 the clearing house received more than 12,000 such cease-and-desist notices which in turn contained thousands of links to content to be removed. At times this archive makes fascinating reading, as highlighted today by occasional TorrentFreak contributor SearchFreak.

The URL http://chillingeffects.org/dmca512c/notice.cgi?NoticeID=31773 shows a DMCA notice sent by Twentieth Century Fox Film Corporation to Google which contains a list of URLs which allegedly link to the movie Avatar. Fox demanded that Google should take them all down from its index, which it appears to have done.

However, if one enters this URL into a Google search, the only results listed are where other pages refer to this URL. The actual page with this URL is nowhere to be found. Indeed, as can be seen from the screenshot below, Google has removed the result due to a DMCA takedown complaint.

Fortunately we can see what this complaint was about and who sent it by, ironically, going to ChillingEffects. The DMCA complaint in question was sent by Fox to Google and contains dozens of links its anti-piracy division has culled from the web, allegedly linking to their movie Avatar.

However, deep into the complaint Fox has demanded that Google take down links to two pages on Chilling Effects (1) (2). Their crime? Containing links to the Avatar movie.

So, let's have a little recap since this is becoming like an episode from Soap.

Chilling Effects is setup to stop the `chilling effects' of Internet censorship. Google sees this as a good thing and sends takedown requests it receives to be added to the database.

Fox sends takedown requests to Google for pages which the company says contain links to material it holds the copyright to. Those pages include those on Chilling Effects which show which links Fox wants taken down.

Google delists the Chilling Effects pages from its search engine, thus completing the circle and defeating the very reason Chilling Effects was set up for in the first place.

Fox has repeated this somewhat ridiculous `error' several times (1) (2) (3) (4) but they are not on their own. It seems that the UFC have also been trying to have ChillingEffects notices removed (1) (2) (3) (4) (5) but currently they remain listed by Google.

While the Fox takedowns happened a while ago, those sent by UFC are just a few weeks old. Let's hope that when receiving these requests in future Google simply throws them in the trash, where they belong.

from the New York Times Media Decoder blog, 2010-Nov-17, by Brian Stelter:

Senator Asks: Can't Fox and MSNBC Just Go Away?

There's a part of Senator Jay Rockefeller, Democrat of West Virginia, that would like to see Fox News Channel and MSNBC vanish.

At a Senate committee hearing about television retransmission consent on Wednesday, Mr. Rockefeller spoke broadly about the ways he believes television is ailing, and in doing so, he singled out the “endless barking” of cable news.

He said: “There's a little bug inside of me which wants to get the F.C.C. to say to Fox and to MSNBC, `Out. Off. End. Goodbye.' It would be a big favor to political discourse; to our ability to do our work here in Congress; and to the American people, to be able to talk with each other and have some faith in their government and, more importantly, in their future.”

There is little the Federal Communications Commission can say about Fox News or MSNBC since the channels are on cable, not delivered over the broadcast airwaves.

The comments about Fox News and MSNBC were not in Mr. Rockefeller's prepared remarks. In those remarks, he also said:

When it comes to developing content, our entertainment machine is too often in a race to the bottom. Even worse, our news media has all but surrendered to the forces of entertainment. Instead of a watchdog that is a check on the excesses of government and business, we have the endless barking of a 24-hour news cycle. We have journalism that is always ravenous for the next rumor, but insufficiently hungry for the facts that can nourish our democracy. As citizens, we are paying a price.

Beyond the news media, Mr. Rockefeller also questioned why consumers have to buy bundles of channels, rather than ordering the channels they want and nothing else.

“The old adage of `500 channels and nothing on' has never been so true as it is today,” he said.

from NewsMax, 2010-Nov-24:

Sharpton Wants FCC to Ban Limbaugh

Liberal firebrand Rev. Al Sharpton is telling audiences that the Federal Communications Commission should take Rush Limbaugh off the airwaves because of perceived offenses toward racial minorities and other groups.

The attack was only the latest in a series of attacks by Democrats, including President Obama, who suggest that America's political discourse is being crippled by talk radio and cable news shows.

al,sharpton,rush,limbaugh,fccSpecifically, Sharpton suggested that the FCC should establish "guidelines" or "standards" to regulate speech.

"You've got to remember that those stations that Rush Limbaugh is on and others are regulated by FCC, granted by FCC; they go back to them to get waivers," Sharpton said on his own radio show on Nov. 19th

"They go back to them to get consolidation," Sharpton continued. "They have the right to set standards. That does not impair your right to speak what you believe, but it does say that you are not going to do that to offend groups of Americans based on their race, their gender, their sexual status - none of that."

Sharpton's broadside followed a similar attack last week by Sen. Jay Rockefeller. The West Virginia Democrat went after both right-leaning Fox News and left-leaning MSNBC.

Said Rockefeller during a Senate hearing: "There's a little bug inside of me which wants to get the FCC to say to Fox and to MSNBC, 'Out. Off. End. Goodbye.' It would be a big favor to political discourse; to our ability to do our work here in Congress; and to the American people, to be able to talk with each other and have some faith in their government and, more importantly, in their future."

And earlier this year President Obama himself lamented what he described as the sad state of political discourse hampered by iPods and cable TV shows.

"And with iPods and iPads; and Xboxes and PlayStations - none of which I know how to work - information becomes a distraction, a diversion, a form of entertainment, rather than a tool of empowerment, rather than the means of emancipation," Obama said during a commencement address at Hampton University in Virginia. "So all of this is not only putting pressure on you; it's putting new pressure on our country and on our democracy."

Conservatives and civil libertarians are concerned by what they see as a growing tolerance by liberals to regulate and even censor the airwaves, especially as outlets like Fox News and shows like Limbaugh's grow ever more popular.

Limbaugh is the most listened to radio host in the nation with more than 15 million weekly visitors. Fox News continues to trounce its cable news rivals CNN and MSNBC in ratings.

"This is scary stuff," lamented an editorial in Investors Business Daily. "Strong speech has always been quintessentially American.

With the airwaves and cyberspace replacing soapboxes, it's more vital than ever to protect it against politicians favoring a new 'fairness doctrine' that would keep voters from being armed with the information and analysis that can be used to unseat them."

from the New York Times, 2011-Mar-21, printed 2011-Mar-22, p.A4, by Sharon LaFraniere and David Barboza:

China Tightens Censorship of Electronic Communications

BEIJING — If anyone wonders whether the Chinese government has tightened its grip on electronic communications since protests began engulfing the Arab world, Shakespeare may prove instructive.

A Beijing entrepreneur, discussing restaurant choices with his fiancée over their cellphones last week, quoted Queen Gertrude's response to Hamlet: “The lady doth protest too much, methinks.” The second time he said the word “protest,” her phone cut off.

He spoke English, but another caller, repeating the same phrase on Monday in Chinese over a different phone, was also cut off in midsentence.

A host of evidence over the past several weeks shows that Chinese authorities are more determined than ever to police cellphone calls, electronic messages, e-mail and access to the Internet in order to smother any hint of antigovernment sentiment. In the cat-and-mouse game that characterizes electronic communications here, analysts suggest that the cat is getting bigger, especially since revolts began to ricochet through the Middle East and North Africa, and homegrown efforts to organize protests in China began to circulate on the Internet about a month ago.

“The hard-liners have won the field, and now we are seeing exactly how they want to run the place,” said Russell Leigh Moses, a Beijing analyst of China's leadership. “I think the gloves are coming off.”

On Sunday, Google accused the Chinese government of disrupting its Gmail service in the country and making it appear as if technical problems at Google — not government intervention — were to blame.

Several popular virtual private-network services, or V.P.N.'s, designed to evade the government's computerized censors, have been crippled. This has prompted an outcry from users as young as ninth graders with school research projects and sent them on a frustrating search for replacements that can pierce the so-called Great Firewall, a menu of direct censorship and “opinion guidance” that restricts what Internet users can read or write online. V.P.N.'s are popular with China's huge expatriate community and Chinese entrepreneurs, researchers and scholars who expect to use the Internet freely.

In an apology to customers in China for interrupted service, WiTopia, a V.P.N. provider, cited “increased blocking attempts.” No perpetrator was identified.

Beyond these problems, anecdotal evidence suggests that the government's computers, which intercept incoming data and compare it with an ever-changing list of banned keywords or Web sites, are shutting out more information. The motive is often obvious: For six months or more, the censors have prevented Google searches of the English word “freedom.”

But other terms or Web sites are suddenly or sporadically blocked for reasons no ordinary user can fathom. One Beijing technology consultant, who asked not to be identified for fear of retribution against his company, said that for several days last week he could not visit the Web site for the Hong Kong Stock Exchange without a proxy. LinkedIn, a networking platform, was blocked for a day during the height of government concerns over Internet-based calls for protests in Chinese cities a few weeks ago, he said.

Hu Yong, a media professor at Peking University, said government censors were constantly spotting and reacting to new perceived threats. “The technology is improving and the range of sensitive terms is expanding because the depth and breadth of things they must manage just keeps on growing,” Mr. Hu said.

China's censorship machine has been operating ever more efficiently since mid-2008, and restrictions once viewed as temporary — like bans on Facebook, YouTube and Twitter — are now considered permanent. Government-friendly alternatives have sprung and developed a following.

Few analysts believe that the government will loosen controls any time soon, with events it considers politically sensitive swamping the calendar, including a turnover in the Communist Party's top leadership next year.

“It has been double the guard, and double the guard, and you never hear proclamations about things being relaxed,” said Duncan Clark, chairman of BDA China, an investment and strategy consultancy based in Beijing, and a 17-year resident of China. “We have never seen this level of control in the time I have been here, and I have been here since the beginning of the Internet.”

How far China will clamp down on electronic communications is unclear. “There's a lot more they can do, but they've been holding back,” said Bill Bishop, a Internet expert based in Beijing. Some analysts suggest that officials are exploring just how much inconvenience the Chinese are willing to tolerate. While sentiment is hard to gauge, a certain segment of society rejects censorship.

For many users, an inoperable V.P.N. is an inconvenience, not a crisis. But Internet consultants said interfering with an e-mail service on which people depend every day is more serious. “How people respond is going to be more intense, more visceral,” one consultant said.

Google began receiving complaints from Gmail users and its own employees in China about a month ago, around the time anonymous Internet posts urged people unhappy with the government to gather every Sunday. Some Gmail users found their service disconnected when they tried to send or save messages.

Engineers determined that there were no technical difficulties on Google's end, Google said; rather, the hand of the Chinese government was at work. China's Foreign Ministry did not respond Monday to calls or faxed questions about Google's statement.

Disrupting Web sites and Internet connections is a standard tactic in dealing with companies that fall out of government favor. Mark Seiden, an Internet consultant, said Chinese officials typically left the companies and users to guess the reason.

In the Google case, an article on the Web site of People's Daily, the Communist Party's official publication, offered a strong hint. The March 4 article, attributed to a netizen, called Google a tool of the United States government. Like Facebook and Twitter, the article said, Google has “played a role in manufacturing social disorder” and sought to involve itself in other nations' politics.

China has treated Google as a threat for some time. Last year, Google closed its search service and redirected Chinese users to Google's Hong Kong site after the company said China was behind a cyberattack aimed partly at Gmail accounts.

But Mr. Moses, the Beijing analyst, said the latest clampdown on electronic communications went further. “The model for this government is that every day is a new challenge and a new opportunity to show the strength of the state here,” he said. “There is clear confidence in the capability of the political authorities to maintain order.”

Jonathan Ansfield contributed reporting from Beijing, and Claire Cain Miller from San Francisco. Jonathan Kaiman and Li Bibo contributed research from Beijing.

from the New York Times, 2010-Nov-26, printed 2010-Nov-27, p.B2, by Ben Sisario:

U.S. Shuts Down Web Sites in Piracy Crackdown

In what appears to be the latest phase of a far-reaching federal crackdown on online piracy of music and movies, the Web addresses of a number of sites that facilitate illegal file-sharing were seized this week by Immigration and Customs Enforcement, a division of the Department of Homeland Security.

By Friday morning, visiting the addresses of a handful of sites that either hosted unauthorized copies of films and music or allowed users to search for them elsewhere on the Internet produced a notice that said, in part: “This domain name has been seized by ICE — Homeland Security Investigations, pursuant to a seizure warrant issued by a United States District Court.”

In taking over the sites’ domain names, or Web addresses, the government effectively redirected any visitors to its own takedown notice.

“ICE office of Homeland Security Investigations executed court-ordered seizure warrants against a number of domain names,” said Cori W. Bassett, a spokeswoman for ICE, in a statement. “As this is an ongoing investigation, there are no additional details available at this time.”

Among the domains seized were torrent-finder.com and those of three sites that specialized in music: onsmash.com, rapgodfathers.com and dajaz1.com. TorrentFreak, a news blog about BitTorrent — a file-sharing system that has tended to elude the authorities because it is decentralized — said that at least 70 other addresses had been seized, most belonging to sites related to counterfeit clothing, DVDs and other goods.

On Friday, torrent users were already discussing new sites that had popped up to serve them.

The takedown notices are similar to those that went up on nine sites in June as part of an initiative against Internet counterfeiting and piracy that the agency called Operation in Our Sites.

In announcing that operation, John T. Morton, the assistant secretary of ICE, and representatives of the Motion Picture Association of America called it a long-term effort against online piracy, and said that suspected criminals would be pursued anywhere in the world. “American business is under assault from counterfeiters and pirates every day, seven days a week,” Mr. Morton said. “Criminals are stealing American ideas and products and distributing them over the Internet.”

Ms. Bassett would not comment on whether the latest raids were part of Operation in Our Sites, and a spokesman for the Recording Industry Association of America, which represents the major recording labels, declined to answer questions.

The new seizures also come as a new bill, the Combating Online Infringements and Counterfeits Act, is making its way through Congress. The bill, which was approved by a Senate committee last week, would allow the government to shut down sites that are “dedicated to infringing activities.”

Critics have said the law is too broad, and could affect sites that have nothing to do with file-sharing; the Electronic Frontier Foundation, an online civil liberties group, has called it “an Internet censorship bill.” Waleed A. GadElKareem, who operated Torrent Finder from Egypt, said his site was shut down on Thursday without any notice.

“My Web site does not even host any torrents or direct-link to them,” Mr. GadElKareem wrote in an e-mail, adding that he only links to other sites. “I am sure something is wrong!”

He added that his server was up and running at a different address.

from the Washington Examiner, 2010-Sep-10, by Michael Barone:

Gangster government stifles criticism of Obamacare

"There will be zero tolerance for this type of misinformation and unjustified rate increases."

That sounds like a stern headmistress dressing down some sophomores who have been misbehaving. But it's actually from a letter sent Thursday from Health and Human Services Secretary Kathleen Sebelius to Karen Ignagni, president of America's Health Insurance Plans -- the chief lobbyist for private health insurance companies.

Secretary Sebelius objects to claims by health insurers that they are raising premiums because of increased costs imposed by the Obamacare law passed by Congress last March.

She acknowledges that many of the law's "key protections" take effect later this month and does not deny that these impose additional costs on insurers. But she says that "according to our analysis and those of some industry and academic experts, any potential premium impact . . . will be minimal."

Well, that's reassuring. Er, except that if that's the conclusion of "some" industry and academic experts, it's presumably not the conclusion of all industry and academic experts, or the secretary would have said so.

Sebelius also argues that "any premium increases will be moderated by out-of-pocket savings resulting from the law." But she's pretty vague about the numbers -- "up to $1 billion in 2013." Anyone who watches TV ads knows that "up to" can mean zero.

As Time magazine's Karen Pickert points out, Sebelius ignores the fact that individual insurance plans cover different types of populations. So that government and "some" industry and academic experts think the new law will justify increases averaging 1 or 2 percent, they could justify much larger increases for certain plans.

Or as Ignagni, the recipient of the letter, says, "It's a basic law of economics that additional benefits incur additional costs."

But Sebelius has "zero tolerance" for that kind of thing. She promises to issue regulations to require "state or federal review of all potentially unreasonable rate increases" (which would presumably mean all rate increases).

And there's a threat. "We will also keep track of insurers with a record of unjustified rate increases: Those plans may be excluded from health insurance Exchanges in 2014."

That's a significant date, the first year in which state insurance exchanges are slated to get a monopoly on the issuance of individual health insurance policies. Sebelius is threatening to put health insurers out of business in a substantial portion of the market if they state that Obamacare is boosting their costs.

"Congress shall make no law," reads the First Amendment, "abridging the freedom of speech, or of the press."

Sebelius' approach is different: "zero tolerance" for dissent.

The threat to use government regulation to destroy or harm someone's business because they disagree with government officials is thuggery. Like the Obama administration's transfer of money from Chrysler bondholders to its political allies in the United Auto Workers, it is a form of gangster government.

"The rule of law, or the rule of men (women)?" economist Tyler Cowen asks on his marginalrevolution.com blog. As he notes, "Nowhere is it stated that these rate hikes are against the law (even if you think they should be), nor can this 'misinformation' be against the law."

According to Politico, not a single Democratic candidate for Congress has run an ad since last April that makes any positive reference to Obamacare. The First Amendment gives candidates the right to talk -- or not talk -- about any issue they want.

But that is not enough for Sebelius and the Obama administration. They want to stamp out negative speech about Obamacare. "Zero tolerance" means they are ready to use the powers of government to threaten economic harm on those who dissent.

The closing paragraph of Sebelius' letter to AHIP's Karen Ignagni gives the game away. "We worked hard to change the system to help consumers." This is a reminder that the administration alternatively collaborated with and criticized Ignagni's organization. We roughed you up a little but we eventually made a deal.

The secretary goes on: "It is my hope we can work together to stop misinformation and misleading marketing from the start." In other words, shut your members up and play team ball -- or my guys with the baseball bats and tommy guns are going to get busy. As Tyler Cowen puts it, "worse than I had been expecting."

Michael Barone,The Examiner's senior political analyst, can be contacted at mbarone@washingtonexaminer.com. His column appears Wednesday and Sunday, and his stories and blog posts appear on ExaminerPolitics.com.

from the Wall Street Journal, 2010-Oct-23, by Seth Lipsky:

The Real Case for Defunding NPR
My quarrel with government subsidies is that they cast a chill over the markets in which entrepreneurs seek to raise capital for highbrow journalism.

At least one good thing has come out of National Public Radio's firing of Juan Williams. NPR's vice president had barely hung up the phone after informing Mr. Williams that he was being terminated—and refusing to meet with him, a long-time colleague, to discuss the matter—when the calls began for Congress to cut off funding for NPR entirely.

Bill O'Reilly, on whose broadcast Mr. Williams uttered the words that cost him his NPR job—he spoke of his fleeting fears when he gets on a plane and sees a person dressed in Muslim garb—called for "the immediate suspension of every taxpayer dollar going into NPR." Sarah Palin issued a Facebook posting called "Juan Williams: Going Rogue," in which she wrote: "If NPR is unable to tolerate an honest debate about an issue as important as Islamic terrorism, then it's time for 'National Public Radio' to become 'National Private Radio.'"

Then South Carolina Republican Sen. Jim DeMint issued a statement saying that he would introduce a bill to end federal funding of public broadcasting. Most significantly, the man who may be the next House Speaker, John Boehner, told National Review Online: "We need to face facts—our government is broke. Washington is borrowing 37 cents of every dollar it spends from our kids and grandkids. Given that, I think it's reasonable to ask why Congress is spending taxpayers' money to support a left-wing radio network—and in the wake of Juan Williams' firing, it's clearer than ever that's what NPR is."

All these sentiments strike me as eminently reasonable, but my own view of the contretemps is slightly different. I have no quarrel with NPR being a left-of-center news source or with the authority of NPR's president, Vivian Schiller, to fire Mr. Williams. The First Amendment right to decide what is aired on NPR—that is, the right that Congress is prohibited by the First Amendment from abridging—belongs not to the talent that wants to go on the air but to the owner of the radio network that airs them. The government and its subsidy receivers, as far as I'm concerned, can be as left-wing as the voters will put up with.

My quarrel with government subsidies to NPR—via grants from the federally funded Corporation for Public Broadcasting—is that they cast a chill over the markets in which private entrepreneurs seek to raise capital for what might be called highbrow journalism. It is hard to quantify this. But it is a conclusion that I have reached after more than two decades spent seeking to raise capital for privately-owned publications competing in this arena.

More than once I have been interrupted, while singing the song of quality journalism to a potential investor, to be asked, "Isn't this already being done by public broadcasting?"

In the instances when that or similar questions were put to me, I was not even seeking to raise capital for broadcasting but rather for small newspapers—the Jewish Forward, in the 1990s, and then the New York Sun. And I wasn't entirely hapless. Many millions of dollars were eventually invested in the two newspapers, and any failures they met were not the fault of the government, but were entirely my own.

I have often wondered, though, what effect the government subsidies have on the broader world, in broadcast and print, of quality journalism. I recognize that the percentage of NPR's funds coming from the taxpayers is but 1% or 2%, or between $1.5 million and $3 million. But whatever the scale, seed capital from a credible investor is an enormous help to any effort, and my own experience is that it would have been easier to raise capital had there been no government-funded competition.

These are questions for Congress to explore when it looks into whether to continue funding for NPR. It's been nearly two generations now since President Lyndon Johnson signed the Public Broadcasting Act of 1967. It's not clear to me, incidentally, what constitutionally enumerated power Congress was relying on to pass such an act. But leave that question aside. What has been the impact on the quality of privately funded journalism of the octopus that government funding of broadcasting helped create?

This question is all the more newsworthy because of the crisis that has overtaken journalism. Print newspaper circulation is, with some exceptions, down. The big television networks are, for the most part, in retreat. Enormous numbers of promising efforts are underway on the Internet. But the jury is out on whether they will find a widely applicable business model.

A small chorus is tuning up to demand not that the government get out of the way but that it actually step up its funding of the press. Last year a report—written by a former editor of the Washington Post, Leonard Downey, and issued under the auspices of the Columbia Journalism School—called for siphoning funds from the Federal Communications Commission's surcharge on phone bills into a Fund for Local News that would underwrite "worthy initiatives in local news reporting."

The president of Columbia University, Lee Bollinger, has emerged as a leading voice for pouring more government money into news gathering. How badly would that chill the capital markets for those who dream of privately funded news gathering, completely independent of oversight by Congress? My guess is that the effect would be a great deal more significant than those who have not been out trying to raise such capital might imagine.

That would be entirely consonant with the school of economics known as public choice theory, which views the government as having its own economic interests and the state as not a protector but a competitor of private enterprise.

Mr. Williams, a distinguished figure, has already landed on his feet, with a multi-year contract and an expanded role at Fox News. When the next Congress takes up the NPR question, I hope it considers the lesser lights who have to go out to raise capital to set up their own platforms. Who is going to give them a leg up if they are having to compete with the government of the United States?

Mr. Lipsky is founding editor of the New York Sun.

from the Wall Street Journal, 2010-Oct-25, by L. Gordon Crovitz:

The Feds vs. Fruit Juice
The FTC goes to war against those who promote the health benefits of the pomegranate.

These days, pomegranates are far down the pecking order of fruits, though some think it was a pomegranate, not an apple, which Eve offered to Adam. Fewer than 4% of Americans had tried the fruit before 2002, when marketing mavens Lynda and Stewart Resnick launched the 100% fruit juice they call POM Wonderful. It's since become a top seller, in its curvy hourglass-shaped bottle.

The Resnicks, who also owns the Teleflora and FIJI water businesses, invested in orchards in California in the 1980s. They've also commissioned research on the anti-oxidant properties of pomegranates—too much research, according to a Federal Trade Commission (FTC) complaint last month alleging deceptive advertising. "Any consumer who sees POM Wonderful products as a silver bullet against all diseases has been misled," said David Vladeck, who runs the agency's Bureau of Consumer Protection.

This is hyberbole—no POM ads claim the pomegranate can cure "all diseases." But the complaint is a stalking horse for the agency's more radical position: that health-food companies now need to get Food and Drug Administration approval for scientific claims, similar to the process pharmaceutical companies follow for drugs.

Ms. Resnick told me last week that the FTC complaint is "a 20th-century idea in a 21st-century world." She says that "there is so much information available that consumers can make up their own minds. They are smarter than the FTC gives them credit for."

POM has sued the FTC, alleging it went beyond its power to monitor deceptive advertising by requiring approval of the scientific accuracy of claims about food. The suit argues that the agency has no power to require "prior FDA approval regardless of whether or not the claims are true or supported by competent, reliable scientific evidence."

Marketing for POM is not a snake-oil pitch. For interested consumers, the product's website provides links to 55 studies, including 16 clinical trials, supported by the company, which hedges its claims by saying "preliminary results have been encouraging and many additional research studies are in progress."

Consumers who want to learn more about the research on the site get this pop-up warning: "You are now leaving the POM Wonderful website. The completed research and studies contained on the following website are provided as a service to the public. They are not intended to make express or implied health or disease claims, as POM Wonderful products are foods, not drugs. They also do not constitute labeling or advertising for any POM Wonderful product. Instead, they are intended solely for general educational and informational purposes."

Ms. Resnick says it's odd that regulators prefer consumers have less information. "One of the points of contention is that we should not be able to talk about our research at all. What motivates natural foods companies to do any research if you can't talk about it?" she says. "It's crazy." Even the advertisements that the FTC included in its complaint have caveats for consumers, with references to "preliminary medical studies" and "hopeful results."

The outspoken Ms. Resnick, who wrote a book last year about marketing called "Rubies in the Orchard," says she'll fight the FTC. "One of the beauties of being privately held is that you can make decisions that do not look so good today but that build your tomorrow," she says. For publicly traded companies with short-term pressures from analysts, "even if you're right you have to settle."

"If we were going to lie," Ms. Resnick says with a laugh, "we'd do what some supplement companies do, by spending a couple of hundred thousand dollars on a silly research project. Why would we spend $35 million on research?" She remains confident that research will show that the benefits of pomegranates include helping reduce heart disease and prostate cancer.

In the meantime, POM recently launched a series of television commercials that avoids scientific claims. One features a scantily clad Eve and another shows a muscled warrior, both with bottles of POM. The information-suppressing FTC is happier with advertising based on sex appeal than advertising based on science.

A smarter approach would be to encourage companies to support strong research, disclose the results and let consumers weigh the findings. The worst thing that can happen with the pomegranate is that people may decide a fruit drink is healthier than, say, a flavored soda.

from the Associated Press, 2010-Oct-14, by Tini Tran, with Min Lee in Hong Kong contributing:

China says backers of Nobel winner support crime

BEIJING — Awarding the Nobel Peace Prize to imprisoned dissident Liu Xiabo encouraged crime in China, the government said Thursday, while telling his supporters to stop interfering in his case.

China has been issuing angry statements and rejecting calls for Liu's release since the Norwegian Nobel Committee honored him Oct. 8 for his more than two decades of advocacy of human rights and peaceful democratic change that started with the demonstrations at Beijing's Tiananmen Square in 1989.

The 54-year-old literary critic is serving an 11-year prison term after being convicted of inciting subversion for his role in writing an influential 2008 manifesto for political reform.

"Liu Xiaobo is a convicted criminal for violating the laws of China. Awarding the Nobel Peace Prize to such a person is equivalent to encouraging crimes in China. It also constitutes a violation of China's judicial sovereignty," Foreign Ministry spokesman Ma Zhaoxu said.

Numerous countries, including the United States, have asked for Liu's release. On Thursday, Japanese Prime Minister Naoto Kan guardedly said it would be "desirable" for China to free Liu, but stopped short of specifically calling for the imprisoned dissident's release.

"I wonder what their true intention is. Is it because they resent China's development path and hate China's political system?" Ma said at a regular news conference.

He accused the Norwegian Nobel Committee of being biased and said "Western governments had no right to interfere" in China.

Liu's winning of the peace prize has caused a diplomatic rift between China and Norway, even though the Norwegian government is not involved in the selection of the winner.

China has canceled a string of meetings with Norwegian officials, and Oslo has pushed Beijing to lift restrictions imposed on Liu's wife, Liu Xia.

The country's state-controlled media have attacked Liu Xiaobo's supporters, with the Global Times issuing an editorial Thursday railing against "the endless ideological wars against China."

It said the peace prize was part of a "concerto supplemented by various NGOs, economic identities and international organizations orchestrated by the developed countries" that hoped to press China to surrender its economic interests.

In the semiautonomous Chinese territory Hong Kong, several pro-democracy lawmakers showed solidarity with Liu on Thursday, displaying his picture in the legislature and wearing headbands inscribed with messages calling for his release.

Lawmaker Leung Kwok-hung asked Hong Kong Chief Executive Donald Tsang to comment on Liu's Nobel award, but the Beijing-backed official declined to do so.

"I've never heard of a leader declining comment during question-and-answer time," Leung retorted. Later, another opposition lawmaker, Albert Chan, held up Liu's portrait as he berated Tsang for dodging the question. Both legislators were kicked out for disrupting order.

The former British colony, governed under a separate system, enjoys freedom of speech, and activists have held several protests at the central Chinese government's liaison office in Hong Kong.

from Reuters, 2011-Jul-4, by Jason Subler and Georgina Prodhan, with additional reporting by Melanie Lee and Samuel Shen and editing by Matt Driskill and Louise Heavens:

UPDATE 4-Baidu picks Microsoft for English search

SHANGHAI/LONDON - China's Baidu is to partner with Microsoft for English-language search, giving the U.S. software giant a chance to expand its tiny Web presence in a market Google has stepped back from, and helping the Chinese company's international ambitions.

The tie-up will direct English searches from Baidu to Microsoft's Bing, which will deliver the results back to Baidu's Web pages, Baidu said in an emailed statement on Monday.

Baidu has about 80 percent of the search market in China -- a nation with almost half a billion Internet users and still only about 30 percent penetration -- after Google left mainland China in a high-profile fallout with Beijing over censorship.

Bing -- which filters out results in China relating to controversial subjects, such as political dissidents, Taiwan or pornography, to be able to operate in the country -- has a negligible share of the market, while Google has nearly 20 percent counting visits to its offshore sites.

Baidu spokesman Kaiser Kuo said Bing was not submitting to any further censorship or restrictions on its English search as a result of the deal "than they already do". Microsoft had no immediate comment beyond confirming the partnership.

Google is losing share to Baidu but is still number two in China. Worldwide, Google runs about 84 percent of Web searches, followed by Yahoo with 6 percent and Bing with 4 percent, according to analytics firm Net Applications.

"Google has potentially shot itself in the foot when it comes to cooperations in the Chinese market," said Daniel Knapp, analyst at media industry research firm Screen Digest.

"Chinese local players like Baidu would be very wary about striking up a relationship with Google, a rogue authority in the eyes of the Chinese authorities. Microsoft has always been very diffident -- for Baidu it's much safer," he added.

The new tie-up, due to be launched later this year, builds on existing cooperation between Baidu and Bing on mobile platforms and page results.

Baidu is beginning to diversify from its core search business to compete in the fast-growing segments of mobile and social networking. It also has a Japanese search service that is currently loss-making.

Search engine marketing company Greenlight said it saw the deal as positive for both sides, and could envisage the new partners dominating the Chinese search-advertising market.

"Whilst it represents an opportunity for Bing to make more money from the Chinese market, Baidu gets what it needs to expand overseas when it is ready to do so," said Greenlight Chief Operating Officer Andreas Pouros.

"Microsoft has entered the Chinese market slowly and has made some friends, in a way that the Chinese government will have no issue with. This should leave Baidu and Bing to control the Chinese search ad market without too much difficulty."

Baidu made $1.2 billion in online marketing revenues last year, up 78 percent from 2009. Microsoft's total online advertising revenue in fiscal 2010, including a small contribution from Bing, was $1.9 billion.

Some analysts were sceptical over how much demand there would be for English search on Baidu.

"It's a good thing, but I see very minimal impact for Baidu. I don't see a lot English keywords going through Baidu. It goes through Google," said Wallace Cheung, a Hong Kong-based analyst at Credit Suisse.

from AOL News, 2010-Jul-9, by Bruce Schneier:

Opinion: 3 Reasons to Kill the Internet Kill Switch Idea

Last month, Sen. Joe Lieberman, I-Conn., introduced a bill that might -- we're not really sure -- give the president the authority to shut down all or portions of the Internet in the event of an emergency. It's not a new idea. Sens. Jay Rockefeller, D-W.Va., and Olympia Snowe, R-Maine, proposed the same thing last year, and some argue that the president can already do something like this. If this or a similar bill ever passes, the details will change considerably and repeatedly. So let's talk about the idea of an Internet kill switch in general.

It's a bad one.

Security is always a trade-off: costs versus benefits. So the first question to ask is: What are the benefits? There is only one possible use of this sort of capability, and that is in the face of a warfare-caliber enemy attack. It's the primary reason lawmakers are considering giving the president a kill switch. They know that shutting off the Internet, or even isolating the U.S. from the rest of the world, would cause damage, but they envision a scenario where not doing so would cause even more.

That reasoning is based on several flawed assumptions.

Internet Without Borders

The first flawed assumption is that cyberspace has traditional borders, and we could somehow isolate ourselves from the rest of the world using an electronic Maginot Line. We can't.

Yes, we can cut off almost all international connectivity, but there are lots of ways to get out onto the Internet: satellite phones, obscure ISPs in Canada and Mexico, long-distance phone calls to Asia.

The Internet is the largest communications system mankind has ever created, and it works because it is distributed. There is no central authority. No nation is in charge. Plugging all the holes isn't possible.

Even if the president ordered all U.S. Internet companies to block, say, all packets coming from China, or restrict non-military communications, or just shut down access in the greater New York area, it wouldn't work. You can't figure out what packets do just by looking at them; if you could, defending against worms and viruses would be much easier.

And packets that come with return addresses are easy to spoof. Remember the cyberattack July 4, 2009, that probably came from North Korea, but might have come from England, or maybe Florida? On the Internet, disguising traffic is easy. And foreign cyberattackers could always have dial-up accounts via U.S. phone numbers and make long-distance calls to do their misdeeds.

Unpredictable Side Effects

The second flawed assumption is that we can predict the effects of such a shutdown. The Internet is the most complex machine mankind has ever built, and shutting down portions of it would have all sorts of unforeseen ancillary effects.

Would ATMs work? What about the stock exchanges? Which emergency services would fail? Would trucks and trains be able to route their cargo? Would airlines be able to route their passengers? How much of the military's logistical system would fail?

That's to say nothing of the variety of corporations that rely on the Internet to function, let alone the millions of Americans who would need to use it to communicate with their loved ones in a time of crisis.

Even worse, these effects would spill over internationally. The Internet is international in complex and surprising ways, and it would be impossible to ensure that the effects of a shutdown stayed domestic and didn't cause similar disasters in countries we're friendly with.

Security Flaws

The third flawed assumption is that we could build this capability securely. We can't.

Once we engineered a selective shutdown switch into the Internet, and implemented a way to do what Internet engineers have spent decades making sure never happens, we would have created an enormous security vulnerability. We would make the job of any would-be terrorist intent on bringing down the Internet much easier.

Computer and network security is hard, and every Internet system we've ever created has security vulnerabilities. It would be folly to think this one wouldn't as well. And given how unlikely the risk is, any actual shutdown would be far more likely to be a result of an unfortunate error or a malicious hacker than of a presidential order.

But the main problem with an Internet kill switch is that it's too coarse a hammer.

Yes, the bad guys use the Internet to communicate, and they can use it to attack us. But the good guys use it, too, and the good guys far outnumber the bad guys.

Shutting the Internet down, either the whole thing or just a part of it, even in the face of a foreign military attack would do far more damage than it could possibly prevent. And it would hurt others whom we don't want to hurt.

For years we've been bombarded with scare stories about terrorists wanting to shut the Internet down. They're mostly fairy tales, but they're scary precisely because the Internet is so critical to so many things.

Why would we want to terrorize our own population by doing exactly what we don't want anyone else to do? And a national emergency is precisely the worst time to do it.

Just implementing the capability would be very expensive; I would rather see that money going toward securing our nation's critical infrastructure from attack.

Defending his proposal, Sen. Lieberman pointed out that China has this capability. It's debatable whether or not it actually does, but it's actively pursuing the capability because the country cares less about its citizens.

Here in the U.S., it is both wrong and dangerous to give the president the power and ability to commit Internet suicide and terrorize Americans in this way.

Bruce Schneier is a security technologist and author of "Beyond Fear: Thinking Sensibly About Security in an Uncertain World." You can read more of his writing at www.schneier.com.

from TechCrunch.com, 2010-Aug-7, by Vivek Wadhwa:

Why We Need To Abolish Software Patents

During my tech days, I co-authored four software patents. Each cost my startup about $15,000—which seemed like a fortune in those days. I didn't really expect these to give me any advantage; after all if my competitors had half a brain, they would simply learn all they could from my patent filing and do things better. But I needed to raise financing, and VCs wouldn't give me the time of day unless I could tell a convincing story about how we, alone, owned the intellectual property for our secret sauce. We got the financing, and the plaques of the patents looked great in our reception area, so the expense was worth it. But there was definitely no competitive advantage.

Patents make a lot of sense in many industries; they are needed to protect the designs of industrial equipment, pharmaceutical formulations, biotechnology products and methods, biomedical devices, consumer products (toothpaste, shampoo, contact lenses, etc.), advanced materials & composites, and of course, widgets (lighting fixtures & elements, batteries, toys, tools, etc.). But in software these are just nuclear weapons in an arms race. They don't foster innovation, they inhibit it. That's because things change rapidly in this industry. Speed and technological obsolescence are the only protections that matter. Fledgling startups have to worry more about some big player or patent troll pulling out a big gun and bankrupting them with a frivolous lawsuit than they do about someone stealing their ideas.

New research by Berkeley professors Stuart J.H. Graham, Robert P. Merges, Pam Samuelson, and Ted Sichelman highlights the extent of this problem. They surveyed 1332 early-stage technology companies founded since 1998, of which 700 were in the software/internet space. Here is what they found:

• In software, only 24% of startups even bothered to file a patent. In medical devices, this proportion was 76%; and in biotech, 75%. Far more venture-backed companies file patents: in software, 67%; in medical devices, 94%; and in biotech, 97%.
• Venture-backed companies also file more patents than others that file patents. They file, on average, 5.9 patents as against the all-company average of 1.7. In medical devices and biotech, this is 25.2 vs. 15.0 and 34.6 vs. 9.7, respectively.
• Software executives consider patents to be the least important factor for competitiveness. They perceive gaining first-mover advantage to be the most important factor, followed by acquisition of complementary assets; copyrights; trademarks; secrecy; and making software difficult to reverse-engineer.
• Companies file patents to prevent competitors from copying their products, to improve their chances of securing an investment or liquidity event (IPO, acquisition, etc.), improving the company's reputation, and to gain bargaining power against others. Surprisingly, companies that held patents—even venture backed—didn't believe that patents made them more likely to innovate. Even more surprising, a quarter of companies that licensed technology from others said they did this to avoid lawsuits—not to gain technology or knowledge. In other words, the patent constituted a weapon or a trophy rather than a way to obtain revenues from others’ commercial adoption of their technology.

Pam Samuelson, one of the co-authors of the report, says that her conclusion from the research is that the world may be better off without software patents; that the biggest beneficiaries of software patents are patent lawyers and patent trolls, not entrepreneurs.

Meanwhile, the U.S. patent system is clogged and dysfunctional. John Schmid, of the Milwaukee Journal Sentinel, analyzed U.S. Patent and Trademark Office data and found that as of 2009, there were more than 1.2 million patents awaiting approval—nearly triple the number a decade earlier. In 2009, the patent agency took an average 3.5 years to deal with a patent request—more than twice the 18-month target. What is most alarming is that the patent office automatically publishes applications on line after the 18 months—outlining each innovation in detail regardless of whether an examiner has begun considering the application. Competitors anywhere in the world can steal ideas. This effectively undermines the entire purpose of the patent system: the patent office is charging applicants serious money for giving it the privilege of giving away their commercial secrets.

To make matters worse, the patent office is rejecting applications at an unprecedented pace—with fewer than 50% being approved, compared to 70% a decade ago. One estimate is that this costs entrepreneurs at least $6.4 billion each year in “forgone innovation”: legitimate technologies that cannot get licensed and start-ups that cannot get funded. So the agency charged with protecting U.S. intellectual property and aiding innovation is often doing the exact opposite.

Brad Feld, managing director at Foundry Group, says that we should simply abolish software patents. He believes that the system has spun completely out of control, with the vast majority of filings not passing the fundamental tests of a patent (that it be non-obvious, novel, and unique innovation). Copyright and trade secrets have historically been the primary protection mechanisms for software intellectual property, and they are still the best solutions. Feld notes that technology companies are now forced to divert huge resources to defend themselves from patent trolls rather than advance their innovations.

The founders of the United States considered intellectual property worthy of a special place in the Constitution—“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” They had the concept right, but they surely never conceived of Amazon.com patenting clicks in an online shopping cart and methods for having an online discussion, or Microsoft patenting methods for activating double click applications with a single click. It's time to do as Brad Feld suggests: simply abolish these abominations.

Editor's note: Guest writer Vivek Wadhwa is an entrepreneur turned academic. He is a Visiting Scholar at the School of Information at UC-Berkeley, Senior Research Associate at Harvard Law School and Director of Research at the Center for Entrepreneurship and Research Commercialization at Duke University. You can follow him on Twitter at @vwadhwa and find his research at www.wadhwa.com.

from the New York Times, 2010-Aug-27, printed 2010-Aug-28, p.B2, by Steve Lohr:

Paul Allen's Company Files Broad Lawsuit Over Patents

A company owned by Paul Allen, co-founder of Microsoft, filed suit on Friday against Google, Apple and nine other companies, contending that their online navigation and viewing technology illegally uses patented inventions created by Mr. Allen's research firm, which is now defunct.

The four patents cited in the suit cover research work done by Interval Research, a Silicon Valley research organization that was founded in 1992 and shut down in 2000. It was financed by Mr. Allen and led by David E. Liddle, a former research scientist at Xerox Palo Alto Research Center in the 1970s. What remains is a licensing arm, Interval Licensing, which is bringing the suit.

The patents, issued from 2000 to 2004, appear to be broad in their application to Internet commerce and Web viewing. They include news alerts, drawing a viewer's attention to a display device and browsing technology for video, sound and text.

The strength of the patent claims, experts say, is not clear. They were developed by a company that invested heavily in research, not merely a patent-buying and licensing firm. But the years when these patents were granted were “deeply problematic” for the United States Patent and Trademark Office, said Josh Lerner, an intellectual property expert at the Harvard Business School.

It was a time when the patent office was inundated with business method and process patents, Mr. Lerner said. These kinds of patents on ideas, he added, were often not fundamentally new, even if they had not previously been patented.

The move by Mr. Allen's company, Mr. Lerner noted, underlines a growing trend in the patent world. “More and more organizations, companies and universities, not just individual inventors, are seeking to monetize their intellectual property, and they are not afraid to go to court to do that,” he said.

Google, in a statement in response to the suit, observed the trend and criticized the drift. “Innovation — not litigation — is the way to bring to market the kinds of products and services that benefit millions of people around the world,” the company said.

The complaint says that Interval Research “served as an outside collaborator to and provided research funding for Sergey Brin and Larry Page's research that resulted in Google,” referring to the search company's founders.

One exhibit in the case is a screenshot from Google's Web page in 1998, “About Google!” It lists Interval Research as one of two outside collaborators — the I.B.M. Almaden Research Center was the other — and as one of four sources of research money; the other three were government agencies.

Besides Google and Apple, the other defendants are AOL, eBay, Facebook, Netflix, Office Depot, OfficeMax, Staples, Yahoo and YouTube.

A spokesman for Mr. Allen, David Postman, said the suit was a step in an effort that had been under way for about four years to try to make money from the intellectual property developed by Interval Research. The research firm, he said, produced nearly 300 patents. Some have been sold, and some have been licensed.

The complaint against the 11 companies is the first suit by Interval Licensing. Interval had held talks with the companies, Mr. Postman said.

“It became clear that these companies were using the technology covered by these patents,” he said. “Interval took this action to protect its investment and intellectual property.”

Today, Mr. Liddle is a partner in a Silicon Valley venture capital firm, U.S. Venture Partners, and he is also on the board of The New York Times Company. He declined to comment on the suit.

from the Wall Street Journal, 2010-Sep-1, by Dionne Searcey:

New Breed of Patent Claim Bedevils Product Makers

Raymond E. Stauffer was shopping at a New Jersey mall when he noticed something peculiar about the bow ties on display at Brooks Brothers: They were labeled with old patent numbers.

Mr. Stauffer, who calls himself a "sharp-dressed man," also happens to be a patent lawyer. He sued Brooks Brothers Inc. in federal court, claiming it broke the law by marking its adjustable bow ties with patents that expired in the 1950s.

He figured the retailer would have to pay a nominal amount for violating a law that bars companies from marking products with erroneous patent numbers.

A federal appellate court ruling on Tuesday breathed new life into his case by upholding his right to sue—and could pave the way for hundreds of similar suits against major companies to move forward. A separate ruling in December raised the stakes in such cases, potentially exposing product makers to huge liabilities.

Already, lawsuits claiming false patent markings have been brought against companies that make turkey pop-up timers, toilet plungers, fabric softener, flashlights, staplers, Frisbees, kites, telecommunications equipment, bubble gum and a toy called The Original Wooly Willy.

Defendants include companies such as Procter & Gamble, Bayer Healthcare LLC, Cisco Systems, Scientific-Atlanta, Merck & Co., Pfizer Inc., 3M Co., DirecTV, Medtronic Inc. Merck said no one was available to comment. The other companies didn't respond to requests for comment.

Marking a tube of toothpaste or paper cup with a patent that is out of date or doesn't exist has been against the law for years. It is considered anticompetitive. Until late last year, the most a violator had to worry about was paying a $500 penalty for misleading the public.

But in December, the Court of Appeals for the Federal Circuit in Washington ruled that defendants could be held responsible for up to $500 per offense.

Lawyers for product manufacturers now fear clients are liable for up to $500 for every tube of mascara or box of garbage bags marked with an expired patent—an error that turns out to be quite common.

In recent months, would-be plaintiffs have been fanning out across retail stores and the Internet searching for expired patent numbers on everything from toothpaste to toilet plungers.

"It absolutely is a startling development in the interpretation of that provision," says Michael C. Smith, a defense lawyer from Marshall, Texas, who is representing Wal-Mart Stores Inc. and mouse-trap maker Kness Mfg. Co. in suits claiming false patent marking. "A lot of these products always have patent numbers on them, and it never occurred to anyone to take them off."

Mr. Smith, who declined to discuss the lawsuits he is handling, says he generally advises clients: "Now is a good time for you to have somebody run down your products" and check their patent numbers.

Patents have a life span of 17 or 20 years. To keep them valid, companies must pay maintenance fees every four years. Once they expire, the holder is expected to remove the numbers from products.

According to Chicago-based merchant bank Ocean Tomo, which tracks patent suits, nearly 350 federal lawsuits have been filed since the December appellate court ruling.

Would-be plaintiffs have been searching retail stores and the Internet for expired patents, then filing lawsuits against product makers. Suits have been filed over allegedly erroneous patent numbers on such products as Etch A Sketch toys, Crest toothpaste, Depend underwear and L'Oréal mascara.

Some of the suits have been dismissed. Many had been stayed, pending the outcome of Mr. Stauffer's case against Brooks Brothers.

On Tuesday, the Federal Circuit Court of Appeals reversed a lower court ruling that had dismissed Mr. Stauffer's case saying he didn't have standing to bring it.

"Every plaintiff who brings one of these cases is a private attorney general who is doing a service to the United States, and I'm doing the same," says Mr. Stauffer, a lawyer in Roseland, N.J.

Brooks Brothers and a lawyer who represents it in the case didn't respond to requests for comment.

The way Mr. Stauffer calculates it, the liability could be huge. Brooks Brothers had erroneously marked 120 different styles of ties, which sell for about $45 to $100 a piece, according to Mr. Stauffer. He says he doesn't know how many individual ties were falsely marked.

"I would have settled this case for $25,000 back in December of 2008," Mr. Stauffer says. "Brooks Brothers, however, seemed eager to want to litigate the case, and I was delighted to give them the opportunity."

So far, none of the suits have reaped the gigantic awards that plaintiffs say could be possible.

But corporations are spooked, according to numerous attorneys who represent manufacturers of consumer products. They are checking the status of patents and scrambling to review the product lines on shelves to be sure labeling is up-to-date. And they are contacting suppliers to make sure their patents are valid.

"These cases have forced companies to spend time, money and resources investigating claims where there really isn't any injury to anybody," says Chicago lawyer Jason C. White, who is defending more than a dozen companies from such suits. "Companies are spending a lot of time investigating this, even ones who haven't been sued. It has captured the attention of a large cross section of corporate America."

Some of the cases have settled because companies fear a bad outcome or don't want to incur large legal fees fighting them.

"You're paying the hostage fee," says Mark Willard, a lawyer who represented hand-tool manufacturer Ames True Temper Co. in a suit involving a shrub rake. "It was manufactured in China using an old mold that still had the expired patent number on it," says Mr. Willard, adding that the company has long had in place a policy of monitoring patents. "This one fell through the cracks."

The company settled the case for an undisclosed amount. Mr. Willard says the suit has cost the company in other ways. Ames had to thoroughly review its inventory to be sure more outdated patents weren't on the market. "They have a very large product line," he says.

One defendant, Solo Cup Co., was accused in a lawsuit of erroneously marking 21 billion items, including lids for Starbucks coffee cups. The company had more than 3,000 molds for its products that were stamped with the erroneous patents, and they had a plan in place to phase out the molds, according to filings in the case. Solo declined to comment.

The suits are affecting how companies tend their intellectual property. Robert Koch, an intellectual-property lawyer in Washington, says he advises his clients to stop marking patents on their products. That would limit companies' ability to seek damages from infringers. But it eliminates having to closely monitor every package and brochure to avoid a lawsuit.

The law on false patent markings is similar to whistle-blower laws. Anyone can file a claim on behalf of the government, and plaintiffs must split any fine award evenly with it. The Justice Department has argued on the side of plaintiffs in some of the claims.

"We do think that these suits have directed industry attention to the need to adopt procedures to assure that patent markings are accurate and to remove the numbers of expired patents from products," says Charles Miller, a Justice Department spokesman. "This should result in more accurate information on products and their packaging, which would be beneficial to consumers."

The people behind the suits say they see themselves as consumer advocates, helping to protect legitimate inventors from giant corporations who are pretending to have patents to keep competitors from stepping on their turf.

"It chills competition, it misleads the public and takes away from the credit patent holders deserve," says Daniel Ravicher, founder and executive director of New York nonprofit Public Patent Foundation, which has filed numerous suits.

Mr. Ravicher says he found one defendant, Johnson & Johnson's McNeil-PPC unit, by perusing his local drugstore shelves, where he found a bottle of Tylenol he says had an expired patent. Johnson & Johnson declined to comment.

L'Oréal USA Inc. has been hit with at least two suits over its Double Extend Mascara. One of the tubes with an expired patent was still on the shelves of a Midtown Manhattan pharmacy last week. L'Oréal declined to comment.

The lawsuits have been filed by relatively few people or entities, many of whom have close ties to plaintiffs' lawyers who work on patent suits. Some are filed in the name of organizations owned by patent attorneys.

One plaintiff, Sarah Tompkins, who has sued more than a dozen companies, is the wife of Allen, Texas, patent lawyer George Tompkins.

Mr. Tompkins says he heard about the December federal-court ruling from lawyer friends. He and his wife then spent hours poring over Internet advertising to check for outdated patents on products, a process that can be relatively simple because patents are numbered chronologically. Patents that start with the number 4, for example, have expired in recent years.

The couple trekked to retail stores to find falsely marked products on shelves. Their lawsuit against multiple companies also contains false advertising claims.

"We decided what companies were doing was wrong, so we filed a lawsuit," Mr. Tompkins says.

from the Wall Street Journal, 2010-May-3:

Free Speech for Some
Unions get a pass from new campaign finance disclosure rules.

Democrats in Congress last week introduced White House-backed legislation that would indirectly reinstate free-speech restrictions that the Supreme Court declared unconstitutional in January. Backers say the measure will force disclosure of corporate money in politics, but the real goal is to muzzle criticism—at least from some people.

The legislation, sponsored by Democrats Charles Schumer in the Senate and Chris Van Hollen in the House, would prevent government contractors and corporate beneficiaries of the Troubled Asset Relief Program from spending money on U.S. elections. It would also ban U.S. subsidiaries of foreign companies from making political contributions if a foreign national owns 20% or more of the voting shares in the company, or if foreign nationals comprise a majority of the board of directors.

The provisions are designed to undermine this year's landmark Supreme Court Citizens United decision, which held that limits on independent campaign expenditures by corporations or unions violate First Amendment free speech guarantees. But, under the bill, unions with government contracts would not be subject to the same restrictions as corporations.

If, as proponents claim, their worry is that a company will use campaign contributions to win government contracts (pay-to-play), why does their bill not show equal concern that labor unions will support candidates with the goal of getting government contracts driven to union companies? The legislation also fails to impose limits on the foreign involvement of unions with global reach, such as the Service Employees International Union or the International Brotherhood of Electrical Workers.

It's no coincidence that the lead authors of these bills are the current head of the Democratic Congressional Campaign Committee (Mr. Van Hollen) and the immediate past head of the Democratic Senatorial Campaign Committee (Mr. Schumer). And it's no surprise that Republicans have been reluctant to sign on. The House bill has two GOP sponsors and the Senate bill has none.

When President Obama berated the High Court earlier this year for its free speech ruling, he was very specific about whose free speech he opposed. "This is a major victory for Big Oil, Wall Street banks, health insurance companies and other powerful interests," said Mr. Obama of the decision, suggesting that despite the good governance rhetoric, this legislation is not about muzzling spenders generally so much as specific spenders who don't always salute the Democratic agenda.

from the Moderate Voice, 2010-Jun-25, by Logan Penza:

The Problem With Regulating Political Speech

In an attempt to overturn the effect of the recent Supreme Court decision in Citizens United v. FCC, House Democrats have passed the DISCLOSE Act. The bill, which faces an “uncertain” future in the Senate, would subject corporations to new limits on issue advocacy, but specifically exempt a few entities hand-picked by House Democrats. In particular, unions would be exempt from the restrictions in the bill as well as various other special interest groups affiliated with Democratic party causes or simply too powerful to risk offending (e.g. the NRA).

This process itself shows the problem with trying to limit the ability of corporations or anyone else to speak out on political issues that affect them. (Contrary to the hyperbolic reports of many critics of Citizens United, the decision leaves in place limits on direct contributions to candidates.) Inevitably, such regulations will filled with custom-fit loopholes allowing allies of whichever party is currently in power to speak freely but attempting to muzzle adversaries. In short, such restrictions are the functional end of the First Amendment because they make speech rights contingent on supporting the party currently in power. At the point that whatever party happens to be in power at the time gets to determine who is allowed to use powerful media outlets and who is prohibited, what we would have would be indistinguishable from how authoritarian governments control access to the media by ensuring that only their supporters are allowed to speak while dissenters are barred. In would have the veneer of the rule of law, but what lay just beneath the surface would be nothing other than raw political coercion.

Because of the clumsiness of its attempt to claim partisan control of the media, the bill will probably die in a filibuster in the Senate. And even if it were passed, the courts are unlikely to allow such a direct attack on dissenting political speech to set a precedent leading to even more partisan restrictions. But the effort alone says very bad things about the attitude of the current Democratic party leadership towards free speech and dissent. In exposing their desire for “free speech for me, but not for thee”, they have permanently forfeited the moral high ground they claimed only a short time ago with the slogan “dissent is patriotic”.

from National Review, 2010-Jun-1, printed 2010-Jun-7, by Bradley A. Smith:

Disclosed Partisanship

In February 1996, then–White House aide and current Supreme Court nominee Elena Kagan co-authored a memorandum to deputy chief of staff Harold Ickes regarding whether President Clinton should support proposed amendments to the McCain-Feingold campaign-finance bill.

The first amendment was to weaken the bill’s ban on “bundling” of contributions. The memorandum’s analysis of the proposal begins: “We have no data on which party benefits more from bundling practices.” The second amendment was to limit out-of-state contributions to candidates. The memo’s analysis begins: “The [limit] may hurt Democratic senatorial candidates.” In other words, the memo evaluated the amendments not on the basis of their benefits or harms to the public, but rather their potential to confer a partisan advantage.

This is not surprising to those who follow campaign-finance-reform efforts closely. A key goal of every “reform” bill has been partisan gain. Fast forward 14 years to January 2010, when the Supreme Court, in an eminently sensible decision in Citizens United v. Federal Election Commission, held that corporations and unions have the right under the First Amendment to speak out in political races. (The government, represented by Kagan, who was then the solicitor general, had argued that it had the power to ban books and movies if they were distributed or produced by corporations, although the solicitor general went to some length to assure the Court that in practice it would not ban books, only “pamphlets.”) The immediate response of the White House and Democrats in Congress was to assess the effect of the decision on their electoral prospects. And they didn’t like the assessment. NPR’s Nina Totenberg summed up the conventional Democratic wisdom on the ruling: “It will undoubtedly help Republican candidates since corporations have generally supported Republican candidates more.”

President Obama proclaimed that the ruling should be overturned because it was a victory for “Big Oil, Wall Street banks, [and] health-insurance companies,” his usual rogue’s gallery. Sen. Chuck Schumer (D., N.Y.) immediately began discussing legislative proposals that would “make [corporations] think twice” before getting involved in campaigns. “The deterrent effect should not be underestimated,” he added. The Washington Post noted that the Democratic proposals “are aimed at preventing corporations from hiding behind trade groups or other organizations in order to fund attack ads on political candidates.”

Rebuffing Republican requests for input into the drafting process, Schumer, the former head of the Democratic Senatorial Campaign Committee, and Rep. Chris Van Hollen (Md.), current head of the Democratic Congressional Campaign Committee, came up with a bill with the gimmicky acronym “DISCLOSE,” which stands for “Democracy Is Strengthened by Casting Light on Spending in Elections.” Critics have more accurately dubbed it “Democratic Incumbents Seeking to Contain Losses by Outlawing Speech in Elections.”

DISCLOSE’s partisanship is apparent in its different treatment of corporations and unions. Every major federal campaign-finance-reform effort since 1943 has attempted to treat corporations and unions equally. If a limit applied to corporations, it applied to unions; if unions could form PACs, corporations could too; and so on. DISCLOSE is the first major campaign-finance bill that has not taken this approach. For example, it prohibits corporations with government contracts of as little as $50,000 from making independent expenditures in elections or engaging in “electioneering communications.” This very low threshold would bar not only large contractors such as Boeing but also thousands of small businesses from exercising the rights recognized in Citizens United. Yet no parallel provision exists for unions that bargain with the government for multimillion-dollar benefit packages. Corporations that received TARP funds are prohibited from spending, but unions at those companies — which in many cases benefited far more from the bailouts than shareholders — are not.

Similarly, DISCLOSE prohibits U.S. corporations with as little as 20 percent foreign ownership from spending on elections, without placing parallel restrictions on unions (and despite the fact that a part of the Federal Election Campaign Act that was unaffected by Citizens United already prohibits spending in U.S. elections by foreign nationals and truly foreign companies). Thus Verizon Wireless, a New Jersey corporation with over 80,000 U.S. employees, is prohibited from making expenditures because the English corporation Vodafone has a minority stake in it. But the Service Employees International Union and the International Brotherhood of Electrical Workers are free to spend to their hearts’ content, even though they have foreign members and directors. (That’s what “International” stands for: SEIU has had members in Canada since 1943. IBEW has been organized in Canada since 1899, and is also in Panama and several Caribbean nations. Both have Canadians on their international executive committees.) Thus the provision not only discriminates against foreign nationals (in violation of the Constitution and countless federal statutes) — something few liberals would support in other contexts, such as limiting the right of foreign nationals to march in protest of government policies, write letters to the editor, or speak out on radio and television — but limits the rights of American shareholders to participate in the political system merely because they own property in association with foreign nationals.

Meanwhile, the disclosure provisions in the bill range from the duplicative to the patently absurd. Federal law already provides that any entity making an independent expenditure of more than $250 must file reports with the FEC that include the name of the spender, the date and amount of the expenditure, the candidate supported or opposed, and a statement that the communication was not coordinated with or authorized by the candidate. Additionally, the spender must disclose the name of any other entity that contributed funds for the communication. For “electioneering communications” — defined in current law as broadcast ads that mention a candidate and are aired within 30 days before a primary or 60 days before a general election — even more information is required, and contributors of $1,000 or more must be reported (although the reporting kicks in only once $10,000 has been spent). Additionally, “527” organizations, such as Swift Boat Veterans for Truth, must report all donors to the IRS, and political-action committees — a category including any group that spends over $1,000 and has as its major purpose influencing elections — must report all of their donors and expenditures to the FEC. Finally, current law requires all ads to include notice of who is paying for them.

Given this, it is obvious that DISCLOSE seeks less to enlighten the public than to bury would-be spenders in regulation and provide politicians with a means for intimidating their donors. DISCLOSE would require, for example, that an organization that makes independent expenditures disclose all of its members and donors contributing over $1,000. It extends this requirement even to an organization that has made no political expenditures in the current cycle but has done so in the past. It thereby provides politicians — in this year’s cycle, endangered Democratic incumbents — a weapon with which to threaten political opponents. The Supreme Court, in a 1958 case called NAACP v. Alabama, held that the government cannot compel groups to reveal their member lists and financial supporters. That may be why DISCLOSE allows groups to avoid such disclosure by establishing “campaign-related activity” accounts, essentially a new type of PAC funded by money solicited specifically to make independent expenditures. But this too runs afoul of the Court: One point of Citizens United was that the government could not require spenders to set up such additional accounts as a condition of political participation.

Some of DISCLOSE’s provisions are outright absurd. It would require that the CEO of a company or organization paying for a broadcast ad appear in the ad and state the organization’s name twice, as well as his name, his title, and his approval of the message. The largest contributor to any ad purchased by an organization, such as a trade association or chamber of commerce, would also have to appear on camera and state the organization’s name three times, as well as his name and title and his approval of the message. These disclaimers, in addition to the existing requirement of a statement as to who is paying for the ad, can take up roughly half of every 30-second commercial. The primary “benefit” to the public is that it will learn that the organization already announced as paying for the ad does, in fact, “approve” of it. We see again that the real purpose is to burden speech — or, as the sponsors wrote in their press release upon introducing the legislation, to “partly restore those limits” struck down as unconstitutional by the Supreme Court.

In fact, in key ways the bill extends the prohibition on corporate expenditures beyond what it was prior to Citizens United. Before the ruling, corporations were prohibited from funding independent expenditures (ads that “expressly advocate” the election or defeat of candidates) at any time, and “electioneering communications” (ads that did not “expressly advocate” election or defeat of a candidate but merely named him or her) within 30 days of a primary or 60 days of a general election. DISCLOSE expands the definition of “electioneering communication” to include any ad mentioning a candidate from 90 days before the primary all the way through the general election. In Illinois this year, that is a twelve-month period beginning in November; in Ohio and Indiana, it runs from the beginning of February through November. In most states, it will run at least six months. Because DISCLOSE prohibits companies with as little as 20 percent foreign ownership, or as little as $50,000 in federal contracts, from running “electioneering communications,” this means that thousands of corporations would be deprived of free speech for as much as a year.

That Congress would respond to a Supreme Court decision affirming corporations’ freedom of speech by restricting that freedom to an even greater extent than it did before the decision is remarkable. The attempt is unlikely to withstand judicial challenge, but, as Senator Schumer made clear early on, he believes the courts won’t have time to rule on the constitutionality of the act before the 2010 election is over.

Whether DISCLOSE passes depends on whether there are any Republican senators gullible enough not to filibuster a law specifically designed to give Democrats an electoral advantage. So far, even John McCain, a supporter of campaign-finance reform, has refused to sign on.

But this is the way of both “campaign-finance reform” and the Obama administration: use the law to silence your opponents. The DISCLOSE Act is a testament to the wisdom of the Supreme Court’s decision in Citizens United. The First Amendment sought to place political speech beyond the government’s control, and we can be glad that it did. Does future Justice Kagan agree?

Bradley A. Smith is the Blackmore/Nault Designated Professor of Law at Capital University Law School, chairman of the Center for Competitive Politics, and former chairman of the Federal Election Commission.

from the Washington Post, 2010-Jun-17, by Cleta Mitchell:

NRA exemption shows campaign disclosure bill's cynical, fatal flaws

The cynical decision this week by House Democrats to exempt the National Rifle Association from the latest campaign finance regulatory scheme is itself a public disclosure. It reveals the true purpose of the perversely named Disclose Act (H.R. 5175): namely, to silence congressional critics in the 2010 elections.

The NRA "carve-out" reaffirms the wisdom of the First Amendment's precise language: "Congress shall make no law . . . abridging the freedom of speech."

Congress can't help itself. Since 1798, with the Alien and Sedition Acts, incumbent politicians have yearned for legal duct tape for their opponents' mouths. The Disclose Act is a doozy of a muzzle.

For its part, the NRA -- on whose board of directors I serve -- rather than holding steadfastly to its historic principles of defending the Constitution and continuing its noble fight against government regulation of political speech instead opted for a political deal borne of self-interest in exchange for "neutrality" from the legislation's requirements. In doing so, the NRA has, sadly, affirmed the notion held by congressional Democrats (and some Republicans), liberal activists, the media establishment and, at least for now, a minority on the Supreme Court that First Amendment protections are subject to negotiation. The Second Amendment surely cannot be far behind.

Since the court's January decision in Citizens United v. Federal Election Commission that corporations cannot be constitutionally prohibited from making independent candidate-related expenditures, Democrats have been hyperventilating at the notion that corporations might spend millions of dollars criticizing them. To foreclose that possibility, the Disclose Act would impose onerous and complicated "disclosure" restrictions on organizations that dare to engage in constitutionally protected political speech and on corporations that dare to contribute to such organizations.

Democrats would effectively neuter the court's decision by requiring the names of multiple donors to be recited in ads (thus shrinking the time spent on actual speech), requiring the CEO of a corporate donor to personally appear in campaign-related ads, expanding the coverage period to virtually the entire election year, and including myriad other rules that the NRA described last month as "byzantine" and an "arbitrary patchwork of reporting and disclosure requirements."

The NRA's wheel-squeaking bought it an exemption from those requirements. Tea Party organizations arising spontaneously since 2009? Out of luck. Online organizations with large e-mail followings but perhaps no formal dues structure? Forget it.

Receiving less attention than the NRA "carve-out" but no less cynical is the bill's sop to organized labor: Aggregate contributions of $600 or more would be disclosed. Why start at $600? Why not $200 or, say, $500? Because most union members' dues aggregate less than $600 in a calendar year and thus members' contributions to labor's campaign-related spending wouldn't need to be disclosed . . . even to the union members whose dues are spent for political purposes.

In Citizens United, the court held that the First Amendment doesn't permit Congress to treat different corporations differently; that the protections afforded political speech arise from the Constitution, not Congress. Otherwise, it would be tantamount to a congressional power to license the speech of some while denying it to others.

The NRA carve-out is a clear example of a congressional speech license.

The ostensible purpose of the legislation is benign "disclosure," upheld in Citizens United as permissible under the First Amendment. Even conservative Justice Antonin Scalia has expressed skepticism about the constitutional infirmity of disclosure requirements in another case argued this term; Scalia intoned in oral argument that "running a democracy takes a certain amount of civic courage."

That's true. Indeed, the law upheld in Citizens United requires all donors to candidate-related expenditures to be publicly disclosed to the FEC in a timely manner.

But the Disclose Act isn't really intended to elicit information not currently required by law. The act serves notice on certain speakers that their involvement in the political process will exact a high price of regulation, penalty and notoriety, using disclosure and reporting as a subterfuge to chill their political speech and association.

It is only disclosure, say the authors. And box-cutters are only handy household tools . . . until they are used by terrorists to crash airplanes.

This is not just "disclosure." It is a scheme hatched by political insiders to eradicate disfavored speech. There is no room under the First Amendment for Congress to make deals on political speech, whether with the NRA or anyone else.

The writer is a partner at Foley & Lardner who works in campaign finance law and is a member of the NRA's board of directors.

from Law.com's Corporate Counsel, 2010-Jul-26, by Joe Mullin:

Patent Litigation Weekly: Wouldn't You Like to Be a Pepper Too?
Poor Little Plano

In a world saturated with bold patent claims it takes a lot to stand out. But a recent press release describing a lawsuit filed by InNova Patent Licensing does that. A press release, written up by The Lanier Law Firm, asserts that a spam-killin' e-mail system described by "revolutionary" patent no. 6,018,761 is "one of the building blocks for all e-mail communication."

Wow! This makes NTP look like a bunch of chumps—they only claim to have invented mobile e-mail. The lead Lanier attorney on the case, Christopher Banys, goes on to state in the press release: "E-mail as we know it would essentially stop working if it weren't for InNova's patents." Hmm... we'll file that comment under "how to imply someone copied you without actually having any evidence of copying or even putting the accusation on the record."

Taking such an expansive view of its "property"—unless your e-mail program doesn't have a spam filter, you're likely to be trespassing yourself—provides InNova no shortage of targets. The suit [PDF] names a who's who of big tech and finance companies as defendants, including AOL, Apple, Google, Yahoo, Ericsson, 3Com, Alcatel-Lucent, IBM, Hewlett-Packard, JP Morgan Chase, Wells Fargo, and Bank of America.

But one surprising name listed in the complaint that really got our attention: Dr. Pepper Snapple Group. Patent infringement suits have expanded into all kinds of different industries in the past few years, but we don't recall having seen many beverage companies hit with one before. What could it be that makes Dr. Pepper so special (besides, of course, its delicious taste and high caffeine count)? Could it be the address of its corporate headquarters, which is located in the Dallas suburb of Plano, just inside the boundary of the Eastern District of Texas?

More defendants have been trying to transfer out of East Texas lately, with some success; but throwing a few East Texas companies into a list of patent defendants sometimes works for plaintiffs trying to stay in their chosen district. That's likely what InNova is up to here.  

There aren't many big corporations headquartered in the small East Texas towns, like Tyler and Marshall, that patent plaintiffs love. So InNova has turned to companies residing in the one one good-sized community within the Eastern District. If this strategy takes off, will Plano become America's unluckiest suburb?

Reading the InNova lawsuit more closely, we find a bunch of other Plano-based defendants that seem more than a little out of place on a list of corporations that regularly appear on the Fortune 100.  Frito-Lay Corp.? Plano headquarters. Wait a sec, where's Frito-Lay parent company? Alas, the much larger New York-based PepsiCo is not on the list.

Rent-A-Center? Plano headquarters. Perot Systems? Plano. J.C. Penney? Plano. Cinemark USA? Plano. Hey, what's Crossmark, Inc., anyhow? Who cares, they're in Plano!

The suit was filed in the federal courthouse in Marshall, not Plano. But intra-district transfers are exceedingly rare. Suing six defendants based just inside the boundary of the Eastern District means the dispute is likely to stay in Marshall. Apparently there's just one place the sword of justice is strong enough to defend inventor Robert Uomini's "revolutionary" invention.

Uomini, by the way, is an interesting guy. The fortune he's seeking by asserting his patent would actually be his second. He landed his first one in 1995 by scoring a $22 million lottery jackpot.

Speaking with a San Francisco Chronicle reporter several years after his big payday, Uomini said the lottery win only ended up being worth $7 million after taxes and delayed payments. "Don't get into the habit of spending, no matter how much it is," he advised future lottery winners. "It is not infinite."

The SF Chron reported:

Uomini divorced last year and said the lottery did contribute in part to his marriage's breakdown. He still works in the field of research mathematics. And yes, he still plays the lottery, odds be damned.

He sure does. The patent lawsuit lottery has decidedly better odds, though, if you can just get a few miles outside Dallas...

• InNova Patent Licensing LLC v. 3Com Corp. et al [PDF]

from Wired, 2011-Jun-20, by David Kravets:

Righthaven Loss: Judge Rules Reposting Entire Article Is Fair Use

A federal judge ruled Monday that publishing an entire article without the rights holder’s authorization was a fair use of the work, in yet another blow to newspaper copyright troll Righthaven.

It’s not often that republishing an entire work without permission is deemed fair use. Fair use is an infringement defense when the defendant reproduced a copyrighted work for purposes such as criticism, commentary, teaching and research. The defense is analyzed on a case-by-case basis.

Monday’s ruling dismissed a lawsuit brought by Righthaven, a Las Vegas-based copyright litigation factory jointly owned with newspaper publisher Stephens Media. The venture’s litigation tactics and ethics are being questioned by several judges and attorneys, a factor that also weighed in on U.S. District Judge Philip Pro’s decision Monday.

Righthaven has sued more than 200 websites, bloggers and commenters for copyright infringement. More than 100 have settled out of court.

The lawsuit decided Monday targeted Wayne Hoehn, a Vietnam veteran who posted all 19 paragraphs of November editorial from the Las Vegas Review-Journal, which is owned by Stephens Media. Hoehn posted the article, and its headline, “Public Employee Pensions: We Can't Afford Them” on medjacksports.com to prompt discussion about the financial affairs of the nation’s states. Hoehn was a user of the site, not an employee.

Righthaven sought up to $150,000, the maximum in damages allowed under the Copyright Act. Righthaven argued that the November posting reduced the number of eyeballs that would have visited the Review-Journal site to read the editorial.

“Righthaven did not present any evidence that the market for the work was harmed by Hoehn’s noncommercial use for the 40 days it appeared on the website. Accordingly, there is no genuine issue of material fact that Hoehn’s use of the work was fair and summary judgment is appropriate,” Judge Pro ruled.

Marc Randazza, one of Hoehn’s attorneys, said he would petition the judge for legal fees and costs.

The judge also said he took into consideration that only five of the editorial’s paragraphs were “purely creative opinions” of the author.

“While the work does have some creative or editorial elements, these elements are not enough to consider the work a purely ‘creative work’ in the realm of fictional stories, song lyrics, or Barbie dolls,” he wrote. “Accordingly, the work is not within ‘the core of intended copyright protection.’”

Judge Pro, in his fair-use analysis, also found that the posting was for noncommercial purposes, and was part of an “online discussion.”

That said, Pro did not need to decide the fair-use question.

That’s because he also found that Righthaven did not have legal standing to bring the lawsuit, a hot-button topic in the Righthaven litigation.

Pro’s decision came a week after a different Las Vegas federal judge threatened to sanction Righthaven, calling its litigation efforts “disingenuous, if not outright deceitful” when it came to standing. Standing is a legal concept that has enabled Righthaven to bring lawsuits on behalf of the copyrights owned by Stephens Media.

That blistering decision by U.S. District Judge Roger Hunt, the chief judge in Nevada, places into doubt Righthaven’s year-old business model, which is also under a Colorado federal judge’s microscope.

Hunt gave Righthaven two weeks to explain why he should not sanction it for trying to “manufacture standing.” Judge Hunt suggested Righthaven never had standing in any of its cases because Righthaven and Stephens Media had agreed to share the proceeds of any damages awards or settlements, yet Stephens Media kept ownership of the copyright.

Righthaven must own the copyright to sue on its behalf, Hunt ruled in a decision echoed by Judge Pro on Monday.

What’s more, in each of the 200-plus cases Righthaven brought on behalf of Las Vegas Review-Journal articles, Righthaven never disclosed, as required, that Stephens Media had a “pecuniary interest” in the outcome, Hunt wrote.

Many bloggers who settled are mulling their legal options.

Illustration: Electronic Frontier Foundation

from PaidContent.org, 2011-Jan-18, by Joe Mullin:

After 200 Lawsuits Against Sites, Righthaven Targets Online Commenters

So far, the copyright-enforcement venture Righthaven has only made a few thousand dollars per settlement with its publisher targets, according to news reports. To make any real money, Righthaven will have to widen its sights. With its latest move, it appears to be doing just that. Atter suing mostly mom-and-pop web publishers—more than 200 blogs and web sites in all in its 10 months in business—Righthaven last week began suing mere commenters, including Wayne Hoehn, a user who posted an op-ed article at MadJackSports.com (the No. 1 handicapping forum on the web.) Remarkably, MadJack Sports itself was the subject of an earlier Righthaven lawsuit. The website settled the allegations.

The article that Hoehn allegedly copied was an op-ed column called “It's the pensions, stupid,” by Las Vegas Review-Journal columnist and former publisher Sherman Frederick. The R-J was Righthaven's initial client when the company started suing web sites and blogs last year, and the newspaper owns part of Righthaven as well. Frederick, who was a big booster of the Righthaven project when it started, stepped aside as publisher in November, but still writes a column for the R-J.

The same day, Righthaven sued James Higgins, who posted another apparently copied R-J story into a Google Groups news list. These two suits appear to be the first Righthaven suits against individual who don't own their own websites.

Pursuing such defendants suggests a certain desperation by Righthaven. Even when the record companies sued thousands of individual users, they at least had a believable argument that digital piracy was hurting music sales. Righthaven's argument that re-posting text articles does similar harm to newspaper companies—while a debatable and controversial point—at least has some logic to it when the suits are against online publishers. To suggest that online commenters are hurting the newspaper industry seems like a much bigger leap of faith.

Stretch though it may be, it's certainly possible that individual posters might be frightened into paying a few thousand dollars in settlement money to avoid litigation and a heavier penalty. Dozens of web sites have already settled with Righthaven, generally for $5,000 or less, according to the Las Vegas Sun.

Righthaven didn't immediately respond to a request for comment, but the company's outside lawyer in these cases, Shawn Mangano, noted that the piece Hoehn is alleged to have copied is an op-ed, not a news article. “A lot of Righthaven suits have involved copyrighted works that defendants argued were primarily factual in nature,” Mangano said. “You have no such argument with an op-ed piece. We're not just reporting on a shooting.” As to why Righthaven had decided to pursue posters, Mangano said: “I'm not privy to that analysis, and if I were, it would be privileged.”

Righthaven v. Hoehn Complaint [PDF]
Righthaven v. Higgins Complaint [PDF]

from Wired.com, 2010-Jul-22, by David Kravets:

Newspaper Chain’s New Business Plan: Copyright Suits

Steve Gibson has a plan to save the media world’s financial crisis — and it’s not the iPad.

Borrowing a page from patent trolls, the CEO of fledgling Las Vegas-based Righthaven has begun buying out the copyrights to newspaper content for the sole purpose of suing blogs and websites that re-post those articles without permission. And he says he’s making money.

“We believe it’s the best solution out there,” Gibson says. “Media companies’ assets are very much their copyrights. These companies need to understand and appreciate that those assets have value more than merely the present advertising revenues.”

Gibson’s vision is to monetize news content on the backend, by scouring the internet for infringing copies of his client’s articles, then suing and relying on the harsh penalties in the Copyright Act — up to $150,000 for a single infringement — to compel quick settlements. Since Righthaven’s formation in March, the company has filed at least 80 federal lawsuits against website operators and individual bloggers who’ve re-posted articles from the Las Vegas Review-Journal, his first client.

Now he’s talking expansion. The Review-Journal’s publisher, Stephens Media in Las Vegas, runs over 70 other newspapers in nine states, and Gibson says he already has an agreement to expand his practice to cover those properties. (Stephens Media declined comment, and referred inquiries to Gibson.) Hundreds of lawsuits, he says, are already in the works by year’s end. “We perceive there to be millions, if not billions, of infringements out there,” he says.

Righthaven’s lawsuits come on the heels of similar campaigns targeting music and movie infringers. The Recording Industry Association of America sued about 20,000 thousand file sharers over five years, before recently winding down its campaign. And a coalition of independent film producers called the U.S. Copyright Group was formed this year, already unleashing as many as 20,000 federal lawsuits against BitTorrent users accused of unlawfully sharing movies.

The RIAA’s lawsuits weren’t a money maker, though — the record labels spent $64 million in legal costs, and recovered only $1.3 million in damages and settlements. The independent film producers say they nonetheless expect to turn a profit from their lawsuits.

“People are settling with us,” says Thomas Dunlap, the head lawyer of the Copyright Group’s litigation. The out-of-court settlements, the number of which he declined to divulge, are ranging in value from $1,500 to $3,500 — about the price it would cost defendants to retain a lawyer. The RIAA’s settlements, which it collected in nearly every case, were for roughly the same amounts.

But experts say that settling the Righthaven cases, many of which target bloggers or aggregation sites, might not be as easy. The RIAA lawsuits often accused peer-to-peer users of sharing dozens of music files, meaning the risk of going to trial was financially huge for the defendants.

The same is true of the BitTorrent lawsuits. The movie file sharers are accused of leeching and seeding bits of movie files, contributing to the widespread and unauthorized distribution of independent movies such as Hurt Locker, Cry of the Wolf and others.

But each of the Righthaven suits charge one, or a handful, of infringements. Defendants might be less willing to settle a lawsuit stemming from their posting of a single news article, despite the Copyright Act’s whopping damages. “You’d have to go after a lot of people for a relatively small amount of money,” says Jonathan Band, a Washington, D.C. copyright lawyer. “That is a riskier proposition.”

Gibson claims Righthaven has already settled several lawsuits, the bulk of which are being chronicled by the Las Vegas Sun, for undisclosed sums.

One defendant who is ready to settle is Fred Bouzek, a Virginia man who runs bikernews.net, a user-generated site about hardcore biker news. He was sued last week on allegations the site ran a Las Vegas Review-Journal story about police going under cover with the Hell’s Angels.

Even if he had grounds to fight the case, he says it would be cheaper to settle. “The only choice I have is to try to raise money and offer a settlement,” he says.

Bill Irvine of Phoenix says he is fighting infringement allegations targeting AboveTopSecret.com, the site he controls under The Above Network. The site is accused of infringing a Review-Journal article on the Gulf of Mexico oil spill. The site is a user-generated discussion on “conspiracies, UFO’s, paranormal, secret societies, political scandals, new world order, terrorism, and dozens of related topics” and gets about 5 million hits monthly, Irvine says.

Righthaven, he says, should have sent him a takedown notice under the Digital Millennium Copyright Act, because the article was posted by a user, not the site itself.

“In this case, we feel this suit does not have merit,” he says. “We are confident we will have success challenging it.”

Gibson says he’s just getting started. Righthaven has other media clients that he won’t name until the lawsuits start rolling out, he says.

“Frankly, I think we’re having tremendous success at a number of levels,” Gibson says. “We file new complaints every day.”

from the Washington Post, 2010-Sep-13, by Amanda Becker:

Lawsuits allege copyright violations in posting of newspaper's articles on Web sites

An area public affairs shop, a D.C.-based coalition against the taxation of flavored beverages, a former government prosecutor and a nonprofit that promotes government responsibility have all found themselves the target of copyright lawsuits recently brought by a Las Vegas firm that has purchased the rights to articles from a local newspaper there.

Goddard Claussen Public Affairs and Americans Against Food Taxes were named defendants in copyright infringement lawsuits filed last week by Righthaven, a limited liability company headquartered in the desert city.

Since March, the company has brought at least 126 such suits against individuals and entities that have republished articles from the Las Vegas Review-Journal. Earlier claims were brought against former assistant U.S. attorney Thomas A. DiBiase and the Citizens for Responsibility and Ethics in Washington, which reached a settlement with Righthaven in May.

The lawsuits are similar to those brought by the Recording Industry Association of America against individuals who illegally downloaded music and by the District-based US Copyright Group, which targeted those who downloaded movies. But the wrinkle is that Righthaven represents itself, after buying the copyrights from the newspaper.

"This is a new kind of business model," said attorney Kurt Opsahl with the Electronic Frontier Foundation, which has volunteered to coordinate legal teams for some defendants. "Righthaven is purchasing the copyright and they are not owning these copyrights for the purpose of licensing them to others; their core business is filing lawsuits."

Righthaven registered as a limited liability company with Nevada's secretary of state in January. Two months later, the lawsuits began. The group typically buys rights after first determining if it can find possible infringements.

The alleged infringements of the defendants vary. DiBiase posted crime clippings on a Web site he maintains about murder investigations that have proceeded in the absence of a body. CREW used the Las Vegas newspaper's articles as supporting documentation for a report on the most corrupt politicians. But Righthaven attorneys say the usage of the newspaper's material -- even when the defendants cite and link to the original source -- is a copyright infringement that allows them to seek $75,000 in damages and the transfer of domain names.

"I'm not sure the amount sought or settled for is a direct reflection of the quantum of guilt or the egregiousness of conduct," said McDermott Will & Emery Partner Robert W. Zelnick. "But from what I've been reading, many of the parties are settling for a number that's around a few thousand dollars. I think from their perspective, it would cost more to hire a lawyer with expertise to evaluate the claims and pull together defenses."

That was the rationale of CREW, which settled its case with Righthaven for a confidential sum in May. According to the complaint filed in Nevada District Court, Righthaven sought redress for CREW's usage of 12 Review-Journal articles on Sen. John Ensign (R-Nev.), which were republished in their entirety on the watchdog's Web site. CREW Chief Counsel Anne Weismann said that even though she considers the group's usage of the material "benign," it would have considered taking the articles down.

"They didn't ask us to cease and desist, instead they just rushed into a lawsuit," Weismann said. "Had we gotten a cease-and-desist letter, it's quite possible we would have reevaluated based on that. But writing a cease-and-desist letter is not going to lead to money. I think it's pretty clear why that's the course they're not following and it exposes their underlying interest here, which is strictly commercial."

But Righthaven chief executive Steve Gibson said that the resources to generate such cease-and-desists requests, which often prove ineffective, are costly. The decision to forgo such a demand is not an indication that the company will treat every situation similarly, he said. Individuals who posted articles in which they were cited as a source, for example, might be treated differently than those who posted batches of stories on a particular subject wholesale -- but the group intends to go after perceived copyright infringements no matter how innocuous the usage may seem.

"Merely because in a number of cases we don't send any prior notice to the infringer doesn't mean we don't reserve the ability to be both lenient and humane in our approach to addressing the infringement," he said. "We just want folks to understand that infringement that replaces the publisher is not the right thing to do."

from Big Journalism, 2010-Sep-10, by Ron Futrel:

Righthaven Lawsuits: A Chilling Effect on the Blogosphere?

There's new meaning to the word “viral.”

Normally the word is used in a positive sense when something is so popular on the web that it is shared with as many people as possible and “hits” go through the roof. In this case, some are saying viral is an infection emanating from a Las Vegas newspaper and its hired hit men.

The Las Vegas Review-Journal has contracted with a company called Righthaven. Righthaven sues web sites that they say are violating the copyright laws by sharing the R-J stories. No warning, no request to take down the material, no shot across the bow—it's nuclear right out of the box. Virtually every other newspaper across the country asks “offending” web sites to just take down the material, and lawsuits are used only as a last resort.

I know, I'm being sued by Righthaven/R-J. My web site, www.LocalsLoveVegas.com is pretty much a hobby with video and news stories about this crazy city. The site is apolitical and focuses on fun things to do in one of the most enjoyable cities on the planet. I didn't know there was a problem until a writer from the competing paper in town, Steve Green, wrote an article about my lawsuit in the Las Vegas Sun.

Even though, as the lawsuit against me acknowledges, I gave full credit to the Review-Journal along with the writer of the story, and a link back to the R-J to read the entire story. They are still suing. The lawsuit is asking for me to pay $75,000, court costs, attorney's fees, and they want my web domain.

Here’s the relevant section of U.S. Copyright Law regarding “fair use:”

The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission…

The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.

At last check, there are around 120 websites being sued, including that of Senate candidate Sharron Angle, who has this little race going on with Harry Reid right now. Apparently her campaign web site linked to an R-J story on its site and Righthaven is smelling blood. The attorneys are offering settlements (NORML — the pot smokin' folks — settled for $2,100) but many of the web sites are fighting this foolishness (yes—again, I'm a bit biased in this case). The Democrat Party in Nevada has also been sued by Righthaven/R-J.

The politics get very dicey in this battle. The R-J is a conservative paper. They have taken a hard line in trying to remove Harry Reid from office in Nevada. In fact, at one point, Reid said he hoped the R-J went out of business. Righthaven has ties that are much more liberal. Steve Gibson, the guy who runs Righthaven, worked with Barack and Michelle Obama at the Sidley Austin LLP law firm in Chicago where Gibson and Michelle worked both worked on copyright and intellectual property law. Independent journalist Fintan Dunne has been uncovering this part of the story. Mutual friends of mine and Gibson's tell me he's conservative. I told you the politics are dicey.

Perhaps green is the color of the politics here. Many have speculated that the entire purpose of these lawsuits is to intimidate small web sites for quick cash. A blog site in Boston run by a lady who loves cats apparently posted an R-J story about a fire in Las Vegas that killed some birds. Like me, she was sued for $75k. Charities and non-profits are on the hit list. Speculation is rampant that this is an example of a dying industry trying for a final desperate grasp at survival. The R-J defends its actions by saying they are preserving the integrity of information that they have worked hard to obtain.

Bottom line, this may be a precedent-setting case about how things can be shared on the internet, but it also raises more questions than it answers. As a journalist, I wonder about a world where you credit another outlet with a story well done, and then they turn around and sue you for using their stuff. Don't laugh—that's part of what's happening here.

What about a restaurant that frames a newspaper article about its establishment and posts it near their entrance, is that copyright infringement or fair use? It's also hard to determine what the financial damages would be for something that is given away for free on the internet. At least when Metallica and the record industry went after those who shared their music, you could quantify the value of a CD. What damage is being done when you share something that anybody can already find for free on the web?

Gibson says other newspapers will be joining the R-J in what some are calling an attack on free speech on the internet. The `net is inflamed with stories on this issue and few are showing any love towards the R-J and Righthaven. I have many friends who are writers at the R-J – I would never give their names — but I have not found a single writer at that paper who is in favor of what management is doing.

from MediaPost.com, 2010-Sep-20, by Wendy Davis:

Judge Says Blogger Sued By Righthaven Might Have Fair-Use Defense

Copyright enforcement outfit Righthaven must have expected that its infringement lawsuits against small publishers and bloggers were sure wins. After all, in many cases the defendants appeared to have violated at least the letter of the copyright law by displaying significant portions of Las Vegas Review-Journal articles on their own sites.

But a federal judge in Nevada just issued a decision indicating that Righthaven might face some obstacles in its litigation campaign -- an initiative that has so far resulted in more than 100 lawsuits against small publishers, bloggers, nonprofits and even political candidates like Sharron Angle. In every known case, Righthaven filed suit without first asking the sites to remove the material.

U.S. District Judge Gloria Navarro on Friday set aside a default judgment that had been entered against blogger Jan Klerks, who publishes a noncommercial site about urban development, www.skyscrapercity.com.

In her eight-page ruling, Navarro wrote that Klerks has at least two meritorious defenses to an infringement action -- that he made fair use of the newspaper's material, and that the newspaper granted him an implied license.

Klerks argued that the paper's practice of encouraging readers to save articles and to share them with others amounts to an implied license to post them. Navarro found Klerks' position on that point strong enough to warrant further proceedings. "The defendant has reasonably asserted that the plaintiff's conduct may have constituted an implied license and that the defendant may have properly inferred that the owner consented to the use, especially in light of the established and accepted custom of users freely and openly sharing certain information posted on the Internet," she wrote.

Navarro also indicated that Klerks has a decent fair-use argument because of the nature of his blog. "Noncommercial, nonprofit activity is presumptively fair," she wrote. "This is because a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create."

Of course, none of that means that Klerks will prevail at a trial. There are other factors that go into determining both fair use and implied licenses. But the ruling, which shows that Navarro is taking Klerks' arguments seriously, could give other defendants additional ammunition against Righthaven.

from PaidContent.org, 2010-Nov-16, by Joe Mullin:

Righthaven's Retreat On `Partial Copying' Cases Shows Firm's Vulnerability

In a sign that Righthaven is on the defensive, the controversial copyright enforcement company has offered to permanently drop one of its lawsuits—provided it doesn't have to pay legal fees to the attorneys defending the website it sued, Democratic Underground. The move shows the startup company's concerns about the potential for mounting legal bills.

If Righthaven were forced to pay legal fees in even one or two of its dozens of cases, it could cripple the firm's chances of turning copyright lawsuits into a for-profit business. News reports say that Righthaven generally gets less than $5,000 per settlement, and copyright defense bills can routinely be in the tens or even hundreds of thousands of dollars.

As part of their argument that attorneys' fees are unwarranted, Righthaven promises in the same 26-page motion that it won't file any more lawsuits unless the defendant has copied at least 75 percent of the text of an article that Righthaven owns the copyright to. Even though the partial-copying suits represent a small part of Righthaven's overall campaign to make money off infringements of newspaper copyrights, those suits have engendered controversy.

Righthaven was formed earlier this year in Las Vegas as a company that enforces newspaper copyrights. It has filed more than 150 lawsuits to date, mostly based on copyrights it acquired from the Las Vegas Review-Journal newspaper. The R-J also is part owner of Righthaven. In court papers, Righthaven lawyer Joseph Chu said that of the 69 Righthaven copyright lawsuits still pending, only four involve copying of less than 75 percent of the article.

Among those four is the one lawsuit that Righthaven has already flatly lost—Righthaven v. Realty One, which is against a real-estate broker who reproduced eight sentences from a 30-sentence news article. A Nevada federal judge on Oct. 20 deemed that “fair use” and thus legal [PDF].

Another partial-copying suit is the one against Democratic Underground, which involves a user who copied five sentences from an article called “Tea Party power fuels Angle,” which is more than 50 sentences long.

Generally, when defendants win in U.S. courts, they aren't able to recoup their legal fees unless the plaintiff filed a frivolous lawsuit or engaged in some type of misconduct. But the Copyright Act is different because it has special provisions making it easier for parties to win attorneys' fees. In the case against Righthaven, Democratic Underground is being defended by experienced copyright lawyers from the Electronic Frontier Foundation.

Separately, the Review-Journal's upper management is getting a major shakeup, as Sherman Frederick—who endorsed the Righthaven approach to copyright enforcement—has stepped down as publisher and CEO of Stephens Media Group, which owns the R-J. Frederick will continue on as a columnist and consultant to the R-J. Speaking to the Las Vegas Sun, Righthaven CEO Steve Gibson said Frederick's departure from the publisher's role “in no way diminishes the Righthaven business model.”

from the Wall Street Journal, 2010-Sep-17, by Justin Scheck and Stu Woo:

Lars Johnson Has Goats on His Roof and a Stable of Lawyers to Prove It
Having Trademarked the Ungulate Look, Restaurateur Butts Heads With Imitators

SISTER BAY, Wis.—Lars Johnson is proud of his restaurant's Swedish-meatball sandwich and pickled herring. But the signature offering at his Al Johnson's Swedish Restaurant isn't on the menu; it's the goats grazing on the grass-covered roof.

Any other business thinking of putting goats on the roof will have Mr. Johnson's lawyers to contend with.

Some patrons drive from afar to eat at the restaurant and see the goats that have been going up on Al Johnson's roof since 1973. The restaurant 14 years ago trademarked the right to put goats on a roof to attract customers to a business. "The restaurant is one of the top-grossing in Wisconsin, and I'm sure the goats have helped," says Mr. Johnson, who manages the family-owned restaurant.

So when a tourist spot 750 miles away decided to deploy a rooftop-caprine population, Mr. Johnson made a federal case of it.

Last year, he discovered that Tiger Mountain Market in Rabun County, Ga., had been grazing goats on its grass roof since 2007. Putting goats on the roof wasn't illegal. The violation, Al Johnson's alleged in a lawsuit in the U.S. District Court for the Northern District of Georgia, was that Tiger Mountain used the animals to woo business.

The suit declared: "Notwithstanding Al Johnson's Restaurant's prior, continuous and extensive use of the Goats on the Roof Trade Dress"—a type of trademark—"defendant Tiger Mountain Market opened a grocery store and gift shop in buildings with grass on the roofs and allows goats to climb on the roofs of its buildings."

Al Johnson's "demanded that Defendant cease and desist such conduct, but Defendant has willfully continued to offer food services from buildings with goats on the roof," the suit continued.

Danny Benson, the offending market's owner, says that "legally we could fight it, because it is ridiculous." But it would have been too expensive to fight, he says. He considered replacing his goats with pigs before deciding their heft and tendency to "root around" would pose a danger to people below.

Earlier this year, Mr. Benson agreed to pay Al Johnson's a fee for the right to use roof goats as a marketing tool in Georgia, South Carolina, North Carolina and Tennessee.

Al Johnson's is on constant lookout for other cloven-hooved intellectual-property violations. Mr. Johnson says the restaurant's Milwaukee law firm has sent letters to other alleged offenders, such as a gift shop in Wisconsin with a fake goat on its roof. It removed the ersatz ungulate.

In July, Virginia news outlets reported that goats on a hillside routinely hopped onto a platform under a billboard advertising two International House of Pancakes restaurants. Drivers pulled over to snap pictures, and one IHOP manager was quoted saying he enjoyed the publicity. Mr. Johnson says his lawyer is monitoring the situation in case "they take it a step further." Lisa Hodges, who manages one of the restaurants, says she doesn't plan to intentionally use the goats for marketing. "We can't help it that they climb up there," she says.

Any business that sells food and uses goats to lure customers may be violating the trademark, says Lori Meddings, the restaurant's lawyer. "The standard is, is there a likelihood of confusion?" she says.

Al Johnson, Lars's late father, opened the Swedish restaurant with a partner in 1949 in a former grocery store in this tourist town on Lake Michigan. In 1973, he imported a wooden building from Norway to replace the old structure, and covered it with a traditional sod roof.

Al Johnson's best friend, Winky Larson, brought him a goat named Oscar as a gag gift that year, the Johnson family says. Someone then put Oscar on the roof, where he attracted passersby, inspiring the family to accumulate a herd.

Two decades later, the business was booming. Summer tourists packed the restaurant, says Mr. Johnson, making it one of the largest U.S. importers of lingonberries. The family in 1996 registered the "Goats on the Roof" trademark. Mr. Johnson, whose father died in June, recalls his lawyer telling him: "Lars, you have something very valuable here."

The goat value was clear on a recent Saturday morning at Al Johnson's. Diners ate Swedish pancakes and meatballs as a red pickup arrived with four bleating passengers: Buckshot, Charlotte, Copper and Flipper.

Mr. Johnson's 15-year-old son, Bjorn, guided the goats up a staircase onto the roof. A herd of tourists congregated below.

The young Mr. Johnson said he worries that a goat will fall into a group of observers, as Buckshot did last year after stretching too far to munch on a cedar tree. Nobody was harmed, and the goat appeared to have fully recovered as he chewed a reporter's shirttail.

Inside the gift shop filled with goat-theme merchandise, Jim Miller, a 67-year-old tourist from Racine, Wis., was softly singing "The Lonely Goatherd" from "The Sound of Music."

The Al Johnson's goat trademark doesn't apply beyond U.S. borders, where roof goats also have marketing cachet.

The Goats on the Roof Coffee Shop in Northumberland, England, opened in July with the help of a government grant. "It's such a unique selling point," says Nina Remnant, proprietor of the cafe, which advertises Bagot goats on its roof.

British Columbia appears to be a hotbed of goat-roofed businesses. The Old Country Market in Coombs, British Columbia, has had the critters on its peaked roof since the 1970s. The market calls itself the "Home of the Goats on the Roof."

Arthur Urie, the market's general manager, says he considered trademarking "goats on the roof" in Canada but decided not to. He isn't concerned about the other roof-goated businesses, he says, because his has "a lot more to offer than what's on the roof."

As for Al Johnson's, he adds, "our goats are bigger than their goats."

from ArsTechnica.com, 2010-Jun-17, by Matthew Lasar:

Study: net neutrality could lead to "devastating" job losses

If you're looking for the Armageddon version of net neutrality analysis, search no further than a  new study released by New York Law School's Advanced Communications Law & Policy Institute. The assessment, titled Net Neutrality, Investment & Jobs, damns the Federal Communications Commission's proposed net neutrality rules as "destabilizing" and suggests they could "place the nation's economy at even greater risk."

The passage of such rules "could have devastating impacts across the ecosystem between 2010 and 2015," warn authors Charles M. Davidson and Bret T. Swanson. The assessment comes as the FCC released a Notice of Inquiry on its new Open Internet proposals on Thursday, and AT&T's threat that such proposals could cause it to downgrade its investment in its U-Verse IP-video network.

How devastating would this impact be? The paper claims that wireless and wireline broadband could suffer huge investment losses as a consequence of the rules. A ten percent drop in investment could rob the United States of 502,000 jobs with a $62 billion impact on its Gross Domestic Product. Three times that decline could punish the economy with a loss of 604,000 jobs and $80 billion in GDP loss.

"Despite FCC assertions to the contrary, history suggests that the Commission is incapable of micromanaging a dynamic sector via regulatory fiat and that such action results in consumer welfare and economic losses," the study asserts.

Apocalypse times three

Ars readers who dislike the dispassionate tone associated with most economics papers will find this one refreshing. Its subheadings include the following: "Apocalypse Now? Assessing the Impact of Proposed Net Neutrality Rules on Investment & Jobs in the Broadband Ecosystem." The question, of course, is how the study's authors came up with those half-a-million job-loss estimates.

First, the agency's proposals could block "voluntary partnerships and transactions with upstream providers of content, applications, and services," the document warns. Indeed the FCC's net neutrality plan, as released late last year, worried out loud where the freedom to cut these kind of deals could go.

"A broadband Internet access service provider that is also a pay television provider could charge providers or end users more to transmit or receive video programming over the Internet in order to protect the broadband Internet access service provider's own pay television service," the document speculated. "Alternatively, such a broadband Internet access service provider could seek to protect its pay television service by degrading the performance of video programming delivered over the Internet by third parties."

But Net Neutrality, Investment, and Jobs argues that as more video watching migrates to the Web, companies and investors will need to find "new hybrid business models to successfully manage this historic transition." Internet video doesn't pay yet, the paper contends. Video accounts for 73 percent of consumer Internet traffic, but just 8 percent of consumer Internet revenue. So new revenue models will have to be found—a prospect supposedly foreclosed by the agency's proposed rules.

Second, net neutrality could block needed Quality of Service techniques to manage user traffic, especially when it comes to handling latency-sensitive services and video. The survey notes the ongoing AT&T/iPhone network traffic malaise, then quotes a sympathetic assessment of the problem:

Unless a long-term plan is put in place that addresses and manages the traffic at a very granular level, the cost incurred due to an explosive demand will become unsustainable by 2013. At that point the revenue being generated could fall below the cost of sustaining such traffic. However, if the operators attack the problem using several different strategies, the growth can be managed and brought in line with the technology evolution such that the industry can take advantage of the falling per megabit costs.

Restricting experimentation on business models for network management "would exacerbate existing problems and allow a tiny number of users and applications to completely dominate the network, degrading service and value for other users," the report fears. And if various cybersecurity technologies which employ network management are also hamstrung, "then these technologies will become vastly more expensive to deploy and will therefore be less widely used."

Negative shocks

So how does the study extrapolate half-a-million jobs from these negative prospects? It takes existing projections of broadband related job growth, then plugs in the "negative shock" of net neutrality rules along four percentage tiers of possible investment decline: ten percent, twenty, third, and a "severe wireless drop." Bottom line: the prospect of 100,000 to 200,000 lost jobs each year over the next five years, with negative ripple effects in the healthcare and energy sectors.

Why would those seemingly nice people at the FCC put the nation in such economic jeopardy? In the face of overwhelming industry opposition to the Commission's Open Internet proposals, the Commission has "panicked," the report asserts, and is now resorting to the implementation of "century-old common carrier requirements" on broadband. "Such actions reflect only a selfish determination to consolidate regulatory power within an agency that has proven time and again to be incapable of micromanaging a dynamic sector like broadband," the report concludes.

Study author Charles Davidson is the director of New York Law School's Advanced Communications Law & Policy Institute. Bret Swanson runs the Entropy Economics research firm.

from National Affairs, 2010-Winter, by Bradley A. Smith:

The Myth of Campaign Finance Reform

March 24, 2009, may go down as a turning point in the history of the campaign-finance reform debate in America. On that day, in the course of oral argument before the Supreme Court in the case of Citizens United v. Federal Election Commission, United States deputy solicitor general Malcolm Stewart inadvertently revealed just how extreme our campaign-finance system has become.

The case addressed the question of whether federal campaign-finance law limits the right of the activist group Citizens United to distribute a hackneyed political documentary entitled Hillary: The Movie. The details involved an arcane provision of the law, and most observers expected a limited decision that would make little news and not much practical difference in how campaigns are run. But in the course of the ­argument, Justice Samuel Alito interrupted Stewart and inquired: "What's your answer to [the] point that there isn't any constitutional difference between the distribution of this movie on video [on] demand and providing access on the internet, providing DVDs, either through a commercial service or maybe in a public library, [or] providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?" Stewart, an experienced litigator who had represented the government in campaign-finance cases at the Supreme Court before, responded that the provisions of McCain-Feingold could in fact be constitutionally applied to limit all those forms of speech. The law, he ­contended, would even require banning a book that made the same points as the Citizens United video.

There was an audible gasp in the courtroom. Then Justice Alito spoke, it seemed, for the entire audience: "That's pretty incredible." By the time Stewart's turn at the podium was over, he had told Justice Anthony ­Kennedy that the government could restrict the distribution of books through Amazon's digital book reader, Kindle; responded to Justice David Souter that the government could prevent a union from hiring a writer to author a political book; and conceded to Chief Justice John Roberts that a corporate publisher could be prohibited from publishing a 500-page book if it contained even one line of candidate advocacy.

In June, the Court issued a surprising order. Rather than deciding Citizens United, the justices asked the parties to reargue the case, specifically to consider whether or not the Court should overrule two prior decisions on which Stewart had relied: Austin v. Michigan Chamber of Commerce, a 1990 case upholding a Michigan statute that prohibited any corporate spending for or against a political candidate, and McConnell v. Federal Election ­Commission, the 2003 decision that upheld the constitutionality of the 2002 McCain-Feingold law. The Citizens United case was reargued on September 9, and a decision is pending. But however the Court rules, the debate over campaign-finance laws appears to have suffered a shock.

To anyone following the evolution of the campaign-finance reform movement, it should have been obvious that book-banning was a straightforward implication of the McCain-Feingold law (and the long line of statutes and cases that preceded it). The century-old effort to constrict the ways our elections are funded has, from the outset, put itself at odds with our constitutional tradition. It seeks to undermine not only the protections of political expression in the First Amendment, but also the limits on government in the Constitution itself — as well as the understanding of human nature, factions and interests, and political liberty that moved the document's framers.

By putting the point so bluntly before the Supreme Court, ­Malcolm Stewart may have inadvertently set off a series of events that could, in time, erode the claim to moral high ground upon which the ­campaign-finance reform movement has always relied. At the very least, his frankness invites us to consider the origins and consequences of that movement — and the implications of its efforts for some cherished American freedoms.

THE MISCHIEFS OF FACTION

Concerns about the political influence of the wealthy have never been far from the surface of American political life. The effort to restrict political spending — with the twin goals of preventing corruption and promoting political equality — began in earnest in the late 19^th century. But in order to understand that movement and the intense debate it spawned, it is necessary to look back even further — to the founding of the American republic.

Figuring out how to keep special interests under control was a dilemma at the core of the Constitutional Convention. James Madison's most original contribution to political thought may well be his effort, in the Federalist Papers, to demonstrate how the new Constitution would ensure that private interests could not seize control of the government and use its power for their private benefit. Federalist No. 10 in particular addressed the tendency toward, and the dangers of, a government controlled by what Madison termed "factions."

In that essay, Madison recognized that there will always be individuals and interests seeking to use the government to their own ends. His entire approach to government, after all, was based on the notion, expressed in Federalist No. 51, that government is "but the greatest of all reflections on human nature" — and that by nature, men are not angels. Because partiality, the ultimate cause of faction, was "sown into the nature of man," Madison argued in No. 10, the causes of faction could not be controlled in a free republic — at least not without "destroying the liberty that is essential to its existence." This, he quickly added, would be a cure "worse than the disease." Madison's approach to the problem was therefore not to limit the emergence of factions, but to control their ill effects and, where possible, even to harness them for good.

To achieve this end, the Constitution relied on three primary devices. One was the separation of powers within the federal government. In three of the Federalist Papers — Nos. 47, 48, and 49 — Madison elaborated at length on how the separation of powers would protect liberty and, by implication, prevent "factions" (what we would call special interests) from gaining control of the government. The other two devices, federalism and the idea of enumerated powers, were to work in tandem. The creation of separate spheres of action for the various state and federal governments — and the sheer size of the republic — would make it difficult for factions to gain control of the levers of power. ­"­[T­]­he society itself will be broken into so many parts, interests, and classes of ­citizens," wrote Madison in Federalist No. 51, "that the rights of ­individuals, or of the minority, will be in little danger." Because the federal government would concern itself only with matters of "great and aggregate interests" — such as national defense, foreign policy, and regulation of commerce between the states — factions would be limited to minor squabbles of local concern, where they could do relatively little harm. The idea, then, was not to limit the freedom of factions, but to divide and limit the power of government itself so that factional interests could not dominate American politics. And the very fact of the multiplicity and diversity of factions would be a limit on the power of governing majorities.

Of course, a fourth bulwark was soon added: the Bill of Rights, and in particular the First Amendment. The First Amendment was in part a reflection of Lockean principles of natural rights. In Cato's ­Letters — which constitutional historian Clinton Rossiter has called "the most popular, quotable, esteemed source of political ideas in the colonial period" — John Trenchard and Thomas Gordon wrote that freedom of speech was "the right of every man." But the First Amendment guarantees of free speech, assembly, and press were not seen purely as protections against government encroachment on natural rights. Rather, as political scientist John Samples notes, the founders believed that "the liberty to speak would force government officials to be open and accountable." During the crisis over the Alien and Sedition Acts in the early years of the new republic, Madison himself noted that the "right of freely examining public characters and measures, and of communication...is the only effectual guardian of every other right." As Samples argues, these founders realized that for "knowledge to inform politics and decision making, it must be publicly available. If the government suppresses freedom of speech, it prevents such knowledge from becoming public." Thus, freedom of speech was seen as both an individual liberty and a means of advancing the public interest.

Despite these protections, spending on political campaigns was often a source of concern in antebellum America, especially after the rapid expansion of the franchise and the rise of mass campaigns for the presidency and other offices. In 1832, the Bank of the United States spent approximately $42,000 — the equivalent of about a million ­dollars today, in inflation-adjusted terms — to try to defeat Andrew Jackson, who was seeking to revoke the bank's charter. With the growth of industry in the aftermath of the Civil War, political spending began to rise ­rapidly — and corporations became an important source of campaign funding. It has been estimated that by the campaign of 1888, the national Republican Party and its state affiliates were receiving 40 to 50% of their campaign funds from corporations (which benefited from high tariffs supported by the GOP). Democrats, though usually poorer, had their own financial titans — such as banker August Belmont and later his son, August Belmont, Jr., who could be counted on for at least $100,000 (nearly $2 million in inflation-adjusted terms) in just about every campaign in the last half of the 19^th century.

But even as money was becoming more important to campaigns, the Constitution's limits on government power (which, in the view of the framers, would also limit the power of factions to manipulate public policy) began to fall out of favor in some important quarters. Beginning in the late 19^th century, the influential Progressive movement launched a sharp critique of the founders' notions of enumerated powers and limited government, and even federalism and the separation of ­powers. Progressive theorists such as Herbert Croly and Columbia University law professor Walter Hamilton railed against the constraints that the Constitution placed on government power. ­Hamilton argued that the Constitution was "outworn" and "hopelessly out of place." Croly argued for the need to "overthrow" the "monarchy of the ­Constitution." ­Eltweed Pomeroy — a New Jersey glue manufacturer who became prominent as an author and the leader of the National Direct Legislation League — argued that "representative government is a failure," and sought ways to bypass the checks and balances of the constitutional ­system. In short, the Progressives' goal was a more energetic, less restrained government, which they believed was necessary to meet the demands of a modern industrial society.

It was in this context of hostility to federalism, checks and balances, and limited government that the modern drive to restrict political speech emerged. It started not as an effort to protect our constitutional arrangements from factions that would overpower them, but rather an effort to overcome our constitutional limits on the power of ­government. It was also intended to overcome the loud, messy, unpredictable democratic process, so as to empower a more "elevated" vision of government.

At the 1894 New York state constitutional convention, the progressive Republican icon Elihu Root called for a prohibition on corporate political giving. "The idea," said Root, "is to prevent...the great railroad companies, the great insurance companies, the great telephone ­companies, the great aggregations of wealth from using their corporate funds, directly or indirectly, to send members of the legislature to these halls in order to vote for their protection and the advancement of their interests against those of the public." Root explained that he was concerned about "the giving of $50,000 or $100,000," amounts equal to roughly $1.2 or $2.4 million today. His effort ultimately failed to change the laws in New York — but it did effectively launch the modern movement to limit campaign contributions and speech.

THE PARTY OF SELF-INTEREST

At the same time that Root's speech gave rise to a movement, it also pointed to one of that movement's fundamental weaknesses. Legal historian Allison Hayward of George Mason University Law School argues that Root's real objective was less to secure passage of his proposal than to score partisan points against the Democrats (whose leaders were then being grilled for accepting bribes from the Sugar Trust). Thus, the movement was born less from noble ideals of good government than from ignoble motives of partisan gain.

This has remained a fundamental dilemma for the "reform" movement, as the century-old effort to restrict and regulate campaign spending has come to be known. If the problem is that venal legislators are betraying the public trust in exchange for campaign contributions, why would we expect them not to be equally motivated by base impulses when passing campaign-finance legislation? Wouldn't the ability to ­control political speech empower the faction that wields it, rather than constraining the power of all factions? A review of the evidence suggests this concern is well founded.

After Republican William McKinley won the presidential election of 1896 with corporate support organized by the legendary political strategist Mark Hanna, the Democratic-controlled legislatures of ­Missouri, Tennessee, and Florida (three states that had voted for McKinley's ­opponent, William Jennings Bryan), as well as the legislature in Bryan's home state of Nebraska, passed bills prohibiting corporate spending and contributions in state races. Even if one accepts that the authors of these state bans were sincere in their belief that limiting the speech of McKinley and his allies was in the public interest, it is still easy to recognize the danger of regulators' mistaking their partisan advantage for the public good.

The first federal law in this arena, passed in 1907, was also a ban on corporate contributions to campaigns. The law was dubbed the Tillman Act, after its sponsor, South Carolina senator "Pitchfork Ben" Tillman. Tillman wrote and said little of his motives for sponsoring the ban on corporate contributions, but he hated President ­Theodore Roosevelt and appears to have wanted to embarrass the president (who had relied heavily on corporate funding in his 1904 election campaign). Tillman's racial politics also clearly contributed to his interest in controlling corporate spending: Many corporations opposed the racial segregation that was at the core of Tillman's political agenda. Corporations did not want to pay for two sets of rail cars, double up on restrooms and fountains, or build separate entrances for customers of different races. They also wanted to take advantage of inexpensive black labor, while Tillman sought to keep blacks out of the work force (except as indebted farm laborers).

Corporations supported Republicans, and Tillman — a Democrat, like most post-war Southern whites — often bragged of his role in perpetrating voter fraud and intimidation in the presidential election of 1876 in order to overthrow South Carolina's Republican reconstruction government. It is clear, then, that Tillman was no "good government" reformer; and far from being born of lofty ideals, federal campaign-finance regulations were, from their inception, tied to questionable efforts to gain partisan advantage.

Within a few years of the Tillman Act, in 1911, came "publication" laws requiring disclosure of campaign contributors and limits on campaign expenditures. These were followed by the Federal Corrupt Practices Act of 1925, aimed at tightening the Tillman Act's limits on corporate donations. In 1943, the Smith-Connally Act prohibited contributions to candidates by labor unions. In 1947, Congress extended the ban on corporate and union contributions to cover "expenditures" made directly to vendors in behalf of campaigns, rather than contributed to candidates or parties.

While these laws influenced the way in which groups and individuals participated in politics, they did little to stem the overall flow of money into campaigns, due to weak enforcement mechanisms and various loopholes that could readily be exploited. The Federal Election Campaign Act, passed in 1972 and substantially amended in 1974, sought to address these problems by creating the most comprehensive set of regulations in history and an independent agency, the Federal Election ­Commission, to enforce the law.

The FECA maintained the ban on corporate and union contributions and expenditures, instituted a detailed system of reporting on contributions and expenditures, and placed limits on contributions and expenditures by individuals, including any expenditure "relative to" a federal candidate. Individual contributions to candidates were limited to $1,000 (a limit that has since been raised to $2,400), and contributions to Political Action Committees were capped at $5,000. PACs, in turn, were limited to contributing $5,000 to candidates. The law also limited total giving in an election cycle (no person may give more than $115,500 over two years to candidates and PACs combined), and placed a host of limits on the sizes of various other contributions.

The Supreme Court pulled back some of these limits in the 1976 case Buckley v. Valeo, holding that FECA's limits on expenditures made independently of a candidate violated the First Amendment. The decision further confined regulation so that it covered only expenditures that "expressly advocated" the election or defeat of a candidate, using specific words such as "vote for" or "vote against." This allowed for heavy spending on "issue ads" that might criticize or praise a candidate but stop short of expressly urging a vote one way or the other.

The 2002 McCain-Feingold law attempted to cut off this spending, which became known as "soft money." Among its many provisions, McCain-Feingold prohibited political parties from accepting any unregulated contributions, and prohibited corporate or union spending on any cable, broadcast, or satellite communication that mentioned a candidate within 30 days of a primary or 60 days of a general election. The law applied to non-profit membership corporations, such as the Sierra Club or the National Rifle Association, as well as to for-profit ­corporations. This is the law that Citizens United is alleged to have violated.

Even this account understates the complexity of the law. In an amicus brief filed in the Citizens United case, eight former FEC commissioners note that the FEC has now promulgated regulations for 33 specific types of political speech, and for 71 different types of "speakers." The statute and accompanying FEC regulations total more than 800 pages; the FEC has published more than 1,200 pages in the Federal Register explaining its decisions; and it has issued more than 1,700 advisory opinions since its creation in 1976.

Considered in detail, each step in the effort to limit campaign spending turns out to advantage the party that sought it. If its own numbers are insufficient to pass the legislation (as was the case with McCain-­Feingold in 2002), then it seeks to broaden its base by adding incumbent-­protection sweeteners to attract enough members of the opposing party to create a bipartisan majority. John Samples notes that McCain-­Feingold drew most of its support from Democrats — who, he argues, saw long-term electoral disaster in the growing Republican fundraising edge, which was increasing after Republicans won the presidency in 2000. But to gain a legislative majority, the minority Democrats had to gain Republican votes; Samples finds that the Republicans who supported McCain-Feingold were, by and large, those most in danger of losing their seats. For them, the incumbent-benefit protections of the law made it irresistible.

Samples makes the Madisonian observation that "politicians use political power to further their own goals rather than the public ­interest....Campaign finance laws might be, in other words, a form of ­corruption." Noting that "scholars date the largest decline in congressional electoral competition from 1970" and that the Federal Election ­Campaign Act — the foundation of modern campaign-finance law — was passed in 1972, Samples points out that "the decline in ­electoral competition and the new era of campaign finance regulation are virtually conterminous."

This is no accident. Since the passage of the FECA, the average incumbent spending advantage over challengers in U.S. House races has soared from approximately 1.5-to-1 to nearly 4-to-1. Incumbents begin each cycle with higher name recognition and a database of past contributors, making it easier to raise more money through small contributions from more people. They also typically make the decision to run earlier than challengers do — since a challenger often waits to see if the incumbent will run before making his choice — so they have more time to raise small contributions. And because campaign-finance regulations essentially require that candidates fill their coffers in small increments, the law clearly advantages the incumbents who passed it.

The effect of campaign-finance regulations has therefore been to help the people who passed them and to strengthen special interests, rather than to cleanse American politics of the influence of self-­interested ­factions. Even the well-meaning reformers, it appears, have failed at their stated goals.

A FAILURE IN PRACTICE

Campaign-finance reform has not managed either to promote political equality or prevent corruption. And data show that one reason campaign-­finance regulations are of little value in attacking corruption is that contributions simply don't corrupt politicians. In a 2003 article in the Journal of Economic Perspectives, three MIT scholars — ­Stephen ­Ansolabehere, James Snyder, Jr., and John de Figueiredo — surveyed nearly 40 peer-reviewed studies published between 1976 and 2002. "­[I]­n three out of four instances," they found, "campaign contributions had no statistically significant effects on legislation or had the ‘wrong' sign — ­suggesting that more contributions lead to less support." Given the difficulty of publishing "non-results" in academic journals, the authors suggested in another paper, "the true incidence of papers written showing campaign contributions influence votes is even smaller." ­Ansolabehere and his colleagues then performed their own detailed study, which also found that "legislators' votes depend almost entirely on their own beliefs and the preferences of their voters and their party," and that "contributions have no detectable effects on legislative behavior."

Truly corrupt legislators will, after all, be lured by the prospect of personal financial benefits, not merely holding office (since most ­legislators, at least at the congressional level, could make more money doing other things). Those on the recent who's-who list of corrupt politicians were all brought down by their love of money: Louisiana Democratic congressman William Jefferson was caught with $90,000 in bribe money stashed in his freezer; Ohio's Bob Ney enjoyed an all-expenses-paid golf outing in Scotland on the dime of disgraced lobbyist Jack Abramoff, and accepted thousands of dollars in gambling chips from a foreign businessman; California's Duke Cunningham solicited bribes and bought, among other things, a yacht; and Illinois governor Rod Blagojevich sought lucrative positions on corporate boards for himself and his wife. These politicians were corrupted by money and gifts given directly to them, not by funds provided to pay for pamphlets and ads.

Most legislators run for office because they have strong political beliefs, and they are surrounded most of their days by aides and ­constituents with similarly strong beliefs. On reflection, far from being counterintuitive, it seems only logical that legislators would not want to betray their political principles — or those of the electorate — for a campaign contribution. After all, votes — not dollars — are what ultimately get put into ballot boxes. And it would make little sense to anger one's constituents for a contribution that can only be used to try to
win those constituents back.

By insisting that campaign contributions corrupt members of Congress and the legislative process despite the repeated failure of dozens of systematic studies to find any evidence of such corruption, reform advocates ask us to set aside important speech rights without proving the need for doing so. Their assumption that the sheer scope of campaign spending somehow proves that our system is corrupted simply has no basis in evidence — and fails entirely to keep political spending in ­perspective. Total political spending in the U.S. in 2008 — for state, local, and federal races — amounted to approximately $4.5 billion. By comparison, the nation's largest single commercial advertiser, Proctor & Gamble, spent about $5 billion on advertising in the same year.

The second widely stated goal of "reform" is to promote political equality. Reformers argue that some people and organizations have more money to spend on political activity than others do, and that it is unfair to allow this discrepancy to give the wealthy a major advantage. But inequality is not unique to money: Some people have more time to devote to political activity, while others gain political influence because they have a special flair for organizing, speaking, or ­writing. It is not clear how political equality is enhanced when a Harvard law ­student can spend his summer volunteering on a campaign while a small-­business owner must spend his working.

In the political arena, money is a means by which those who lack talents or other resources with direct political value are able to participate in politics beyond voting. It thus increases the number of people who are able to exert some form of political influence. Limitations on monetary contributions therefore elevate those with more free time — such as retirees and students — over those (like most working people) who have less time, but more money. Such regulation also favors people skilled in political advertising over those skilled in growing corn or building homes; it favors skilled writers over skilled plumbers; it favors those, such as athletes and entertainers, whose celebrity gives them a public megaphone over people like stockbrokers and investors, who lack a public platform for their views. And this is before we arrive at the influence of media and other elites. Under the rules established by the "reform" regime, editorial-page editors, columnists, and talk-show hosts may endorse candidates — but others may not pay to take out an ad of equal size or length to explicitly endorse their candidates.

Easing the restrictions on campaign contributions would not ­constrain any of these other forms of political support. Rather, allowing more contributions simply permits more people to participate in the ­system — thus diffusing influence, rather than concentrating it. Campaign­-finance reform, then, actually undermines the effort to ­promote equal access to the political arena.

Campaign-finance reform hasn't succeeded in achieving various ­secondary goals often attributed to it, either. For example, the McCain-Feingold law included the "Stand by Your Ad" provision, which now requires candidates for federal office to state in each ad: "I'm So-and-So, and I approved this message." The idea was that forcing candidates to take direct responsibility for what they say would reduce negative advertising. Of course, it's worth questioning whether negative advertising should be reduced: As Bruce Felknor, the former head of the Fair Political Practices Committee, observed as far back as the 1970s, "without attention-grabbing, cogent, memorable negative campaigning almost no challenger can hope to win unless the incumbent has been found guilty of a heinous crime." But even leaving this question aside, the provision has failed miserably to curb negative campaigning. In 2008, for example, researchers at the University of Wisconsin found that more than 60% of Barack Obama's ads, and more than 70% of ads for John McCain — that great crusader for restoring integrity to our politics — were negative. Meanwhile, the required statement takes up almost 10% of every costly 30-second ad — reducing a candidate's ability to say anything of substance to voters.

Some also argue that reform will reduce the amount of time elected officials must spend fundraising, thus allowing them to devote more time to their official responsibilities. It turns out, though, that the campaign-­finance regulations themselves are the primary reason for the extensive time spent fundraising. Raising large amounts of money in small contributions is much more time-consuming than raising fewer large contributions.

Given these circumstances, it is almost impossible to argue that campaign-finance reform has improved government. Governing ­magazine — in connection with the (pro-campaign finance reform) Pew Charitable Trusts — regularly ranks state governments on the quality of their management. In both of Governing's last two studies, in 2005 and 2008, Utah and Virginia were ranked the best-governed states in the nation. Utah and Virginia also tied for first place in the first Governing survey, from 1999, and Utah ranked first in the second study in 2001. What do these two states have in common? Among other things, they appear on the short list of states that have no limits on campaign spending and contributions. Meanwhile, states such as Arizona and Maine — which have enacted full taxpayer financing of their state races — score unimpressive marks. In terms of management, Governing ranked Arizona in the middle of the pack, tied for 14^th with 17 other states. Maine was ranked next to last — ahead of only New Hampshire. This alone does not prove an inverse relationship between campaign-finance laws and good governance, of course, but it does help to show the absence of a direct relationship. At the very least, campaign-finance restrictions do not seem to improve government.

As campaign-finance reform has failed to achieve its goals, it has also exacted serious costs. Studies have shown that political spending helps voters to learn about candidates, to locate them on the ideological ­spectrum, and to be better informed about issues and contests. Reducing the amount that may be spent, and constraining the ways it may be used, can thus hurt the quality of political discourse. More ­important, the laws involve serious restrictions on the exercise of fundamental rights.

RESTRICTING RIGHTS

For years, advocates of campaign-finance regulation have worked to establish a reputation as plucky underdogs: the nation's moral ­conscience, fighting the good fight against powerful special interests. They did this even as the leading reform groups spent some $200 million in the 1990s and early in this decade to pass the McCain-Feingold bill. In addition to liberal donors like the Pew Charitable Trusts, the Carnegie Foundation, and the Joyce Foundation, the groups' financial backers included several large corporations and firms, among them Bear Stearns, Philip Morris, and Enron. Yet somehow the reformers successfully branded their opponents as the purveyors and defenders of a corrupt system, bent on protecting it for personal gain. This gambit won the reformers some moral authority, which they wielded to great effect — making deep inroads with Congress, the press, and the public.

This is why the unexpected turn in the oral argument of the ­Citizens United case caused such a stir (and such concern among campaign-finance-reform advocates). Americans, like most free people, react with visceral disgust to the notion of banning books. It is seen as a fundamental violation of the freedom of speech and the open exchange of ideas. To equate campaign-finance reform with book-banning is to threaten the moral high ground of the case for campaign-finance limits. Ceding that high ground would be very costly for reformers, since their efforts have produced so little in the way of demonstrable results.

But there is simply no question that restricting the freedoms guaranteed in the Bill of Rights — no less than side-stepping the limits on government power established by the Constitution itself — is inseparable from the movement's goals. Restrictions on campaign contributions and spending affect core First Amendment freedoms of speech, press, and assembly. While the Supreme Court has quite correctly never held that "money is speech," it has recognized, equally correctly, that limiting political spending serves to limit speech (by restricting citizens' ability to deliver their political messages). In fact, only one of the 19 Supreme Court justices to serve in the past 30 years — John Paul Stevens — has ever argued that political campaign and expenditure limits should not be treated as First Amendment concerns. Those who doubt that basic constitutional rights are at stake should imagine how they would react if the Supreme Court were to interpret the free exercise clause as allowing the faithful to hold their religious beliefs, but not to spend money to rent a church hall, purchase hymnals, or engage in church missions. Presumably, the move would be seen as much more than a mere regulation of property.

These limits on expression do not affect only wealthy donors or prominent candidates. On the contrary: Groups without a broad base of support are the ones that rely most heavily on large donors to make their voices heard. Almost by definition, political minorities, ­newcomers, and outcasts will find it harder to reach enough people to raise the money they need through many small contributions. Their base of support is simply too narrow. One can analogize the process to that of raising capital in financial markets: If no investor could put more than $5,000 into a company, large-scale IPOs would become a thing of the past. Established companies might be able to raise large amounts of capital from tens of thousands of small investors, but capital-intensive start-ups would be doomed.

So it is with political entrepreneurs, who would get nowhere without large donors. In the 1990s, for example, large-scale spending by Ross Perot gave voice to millions of Americans who were concerned that the major parties were failing to address the national deficit. Perot's spending did not "drown out" ordinary citizens, but rather helped them to be heard. In 2004, early contributions from a few big donors to the Swift Boat Veterans for Truth allowed the group to get its message on the air at a time when the national media were ignoring it. Once the group's first ads were seen by the public, the organization was bombarded with hundreds of thousands of small donations — and of course millions more supported or were influenced by the group's message. Similarly, large contributions by George Soros to MoveOn.org gave the organization the ability to contact millions of Americans and develop one of the most phenomenal grassroots political machines in American history.

Not surprisingly, it is often upon the most authentically grassroots candidacies and campaigns that the burden of regulation weighs ­heaviest. For example, in 2006, a group of neighbors in the unincorporated community of Parker North, Colorado, joined together to fight annexation into the neighboring city of Parker. Because they printed yard signs, made copies of a flyer, and formed an e-mail discussion group, they were charged with operating as an unregistered political committee. Three years later, their case remains entangled in the courts. And when Mac Warren ran for Congress in Texas in 2000, he spent just $40,000 on his campaign — roughly half of it his own money. All of his campaign materials contained the name and address of his campaign committee. But two pieces of literature failed to contain the required notice that the literature was paid for by the committee — and for that omission, Warren's long-shot campaign was fined $1,000 by the Federal Election Commission.

WORSE THAN THE DISEASE

As Madison understood, some people will always try to use government for their private aims. But with the Madisonian restraints on government rent-seeking largely discarded, campaign-finance regulation becomes a futile and misguided effort — one that, as Madison argued, is not only bound to fail, but also bound to make matters worse.

A classic example is the Tillman Act and its ban on corporate ­contributions. The law was easily evaded, it turns out, by having corporations make "expenditures" independently of campaigns, or by having executives make personal contributions reimbursed by their companies. And when the Tillman Act was extended to include unions in 1947, unions and corporations formed the first political action committees to collect contributions from members, shareholders, and managers to use for political purposes.

Later, when the Federal Election Campaign Act imposed dramatic contribution limits, parties and donors discovered "soft money" — ­unregulated contributions that could not be used directly for candidate advocacy, but could be used for "party-building" ­activities. Such party-building ­activities soon came to include "issue ads" — thinly veiled attacks on the ­opposition, or praise for one's own ­candidates — that stopped just short of urging people to vote for or against a candidate (instead typically ending with "Call Congressman John Doe, and tell him to support a better minimum wage for America's workers"). When the McCain-Feingold bill banned soft money, the parties — especially the Democrats — effectively farmed out many of their traditional functions to activist groups such as ACORN and MoveOn. When McCain-Feingold sought to restrain interest-group "issue ads" by prohibiting ads that mention a candidate from appearing within 60 days of an election, groups responded by running ads just outside the 60-day ­window. The National Rifle Association responded by launching its own satellite radio station to take advantage of the law's exception for broadcasters. Citizens United began to make movies.

Preventing this type of "circumvention" of the law has been a fixation of the "reform community" from the outset. Yet each effort has led to laws more restrictive of basic rights, more convoluted, and more detached from Madison's insights. Each effort also appears to be self-defeating, since the circumvention argument knows no bounds. As Madison would have appreciated, every time we close off one avenue of political participation, politically active Americans will turn to the next most effective legal means of carrying on their activity. That next most effective means will then become the loophole that must be closed.

This is how the Citizens United case found its way to the Supreme Court. When the case was reargued in September, solicitor general Elena Kagan — taking poor Malcolm Stewart's place at the podium — assured the Court that the government had never taken action against a book, and presumably never would. But in fact, after the election of 2004, the Federal Election Commission had conducted a two-year ­investigation of George Soros for failing to report as campaign expenditures the costs of distributing an anti-Bush book. The agency ultimately voted not to ­prosecute, but its authority to do so was never in question. And Kagan did not back away from the government's position that it had the authority to ban books should they, at some point, become a problem.

As the Supreme Court ponders whether campaign-finance ­restrictions assault Americans' First Amendment rights, academic champions of such "reform" efforts are laying the groundwork for yet more ­regulation. Legal scholars such as Harvard's Mark Tushnet, Ohio State's Ned Foley, and Loyola Law School's Richard Hasen — publisher of the "Election Law Blog" — have all argued that true reform will require open censorship of the press in order to assure political equality. Yale law professor Owen Fiss has argued that "we may sometimes find it necessary to ‘restrict the speech of some elements of our society in order to enhance the relative voice of others,' and that unless the [Supreme] Court allows, and sometimes even requires the state to do so, we as a people will never truly be free."

Until Citizens United, such Orwellian newspeak was largely buried in obscure academic journals. Malcolm Stewart's sin was to state openly the implications of campaign-finance reform — and, in doing so, to strip away the veneer of "good government" and moral authority so carefully cultivated by reform advocates (and so important to their power). As a result, Stewart might have launched the beginning of the end for America's failed experiment to limit factions by destroying the liberty that allows for them in the first place. When the Supreme Court decides the case, it will have the opportunity to reassert the wisdom of Madison's deep insight into human nature — and to protect those liberties that, while they may make factions possible, also define the republic designed to contain them.

Bradley A. Smith is the Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School in Columbus, Ohio, and chairman of the Center for Competitive Politics. He served on the Federal Election Commission from 2000 to 2005.

from the Wall Street Journal, 2010-May-4, by William McGurn:

When Apple Calls the Cops
The First Amendment doesn't only belong to journalists.

Jason Chen is a newsman. Or is he?

That's just one question raised by the raid on Mr. Chen's home by the San Mateo County, Calif., Sheriff's Office, which carted off some computers and other electronic equipment. The search warrant appears to be the result of an investigation into whether Mr. Chen broke the law when he bought an iPhone prototype that an Apple engineer left in a bar where he was celebrating his birthday.

Because Mr. Chen reported on the new iPhone for his website, Gizmodo.com, the seizure of his computers has renewed a heated debate about whether bloggers are real journalists. Traditionally, many in the mainstream press have disparaged bloggers, though in this case at least some press organizations—including the parent company that runs Mr. Chen's blog—argue that he is a full-time journalist whose home is his newsroom. The irony is how few connect Mr. Chen's First Amendment freedoms to those for corporations that were recently upheld in a landmark Supreme Court ruling.

The case was Citizens United v. Federal Election Commission. Citizens United is a nonprofit corporation that produced a documentary on Hillary Clinton. It sought to distribute the film via video-on-demand back when she was running in the Democratic presidential primaries. When a lower court agreed with the FEC that the McCain-Feingold restrictions applied to the Hillary film, the group appealed and won at the Supreme Court this past January.

Not long after, in his State of the Union Address, Barack Obama disparaged members of the Supreme Court sitting before him by accusing them of opening "the floodgates for special interests." Many focused on the president's rudeness. More troubling was his message: What President Obama was really saying is that the Wall Street Journal and ABC News and your hometown daily should be free to print or broadcast what they want during an election. But not organizations like Citizens United.

The High Court wisely rejected that logic. Writing for the majority, Justice Anthony Kennedy said that "The First Amendment protects speech and speaker, and the ideas that flow from each." In other words, the government can't restrict First Amendment rights based on the identity of the speaker."

Steve Simpson, a lawyer for the Institute for Justice, a libertarian public interest law firm, puts it this way: "Once the government gets in the business of deciding who can speak based on identity, it will then necessarily be involved in deciding what viewpoints get heard."

The classic view of the First Amendment holds all Americans are entitled to its rights by virtue of citizenship. These days, alas, too many journalists and politicians assume that a free press should mean special privileges for a designated class. The further we travel in this direction, the more the government will end up deciding which Americans qualify and which do not.

It's not just Mr. Chen. Two weeks ago in New Jersey, a state appeals court ruled that a hockey mom who blogs is not a journalist for the purposes of protecting her sources. The woman was being sued for derogatory comments she posted on a message board about a company that supplies software for the porn industry. At the federal level, meanwhile, a "shield law" protecting journalists from revealing their sources remains bogged down in Congress as legislators are forced to define who is legitimately a journalist and who is not.

Mr. Simpson points to another irony: Legislation now being pushed by Sen. Chuck Schumer (D., N.Y.) to scale back the Supreme Court's January decision would limit political speech for government contractors, for companies that owe TARP money, and for those that pass some threshold for foreign ownership.

It's an interesting proposition. I wonder: How many among the press who favor these chains being wrapped around corporations have thought through the implications for news organizations? The implications will be especially interesting if Congress ever does get around to approving that bailout for failing newspapers that the president says he's at least open to.

In Mr. Chen's case, all this may be moot if his troubles really have to do with buying property that is considered stolen under California law. In its reporting on the case, Gizmodo has already admitted paying $5,000 for the iPhone prototype. If the criminal case comes down to stolen property, whether or not he is deemed a bona fide journalist may not make much difference.

The larger point is that the best guarantee of good, independent journalism has always been the willingness of reporters and editors and publishers to run with the truth, protect their sources, and accept the consequences—even jail, if it comes to that. In short, we'll all be better served by a First Amendment that remains a fundamental right for all rather than a class privilege for some.

from the New York Times, 2010-Apr-25, printed 2010-Apr-26, p.A23, by Ross Douthat:

Not Even in South Park?

Two months before 9/11, Comedy Central aired an episode of “South Park” entitled “Super Best Friends,” in which the cartoon show's foul-mouthed urchins sought assistance from an unusual team of superheroes. These particular superfriends were all religious figures: Jesus, Krishna, Buddha, Mormonism's Joseph Smith, Taoism's Lao-tse — and the Prophet Muhammad, depicted with a turban and a 5 o'clock shadow, and introduced as “the Muslim prophet with the powers of flame.”

That was a more permissive time. You can't portray Muhammad on American television anymore, as South Park's creators, Trey Parker and Matt Stone, discovered in 2006, when they tried to parody the Danish cartoon controversy — in which unflattering caricatures of the prophet prompted worldwide riots — by scripting another animated appearance for Muhammad. The episode aired, but the cameo itself was blacked out, replaced by an announcement that Comedy Central had refused to show an image of the prophet.

For Parker and Stone, the obvious next step was to make fun of the fact that you can't broadcast an image of Muhammad. Two weeks ago, “South Park” brought back the “super best friends,” but this time Muhammad never showed his face. He “appeared” from inside a U-Haul trailer, and then from inside a mascot's costume.

These gimmicks then prompted a writer for the New York-based Web site revolutionmuslim.com to predict that Parker and Stone would end up like Theo van Gogh, the Dutch filmmaker murdered in 2004 for his scathing critiques of Islam. The writer, an American convert to Islam named Abu Talhah Al-Amrikee, didn't technically threaten to kill them himself. His post, and the accompanying photo of van Gogh's corpse, was just “a warning ... of what will likely happen to them.”

This passive-aggressive death threat provoked a swift response from Comedy Central. In last week's follow-up episode, the prophet's non-appearance appearances were censored, and every single reference to Muhammad was bleeped out. The historical record was quickly scrubbed as well: The original “Super Best Friends” episode is no longer available on the Internet.

In a way, the muzzling of “South Park” is no more disquieting than any other example of Western institutions' cowering before the threat of Islamist violence. It's no worse than the German opera house that temporarily suspended performances of Mozart's opera “Idomeneo” because it included a scene featuring Muhammad's severed head. Or Random House's decision to cancel the publication of a novel about the prophet's third wife. Or Yale University Press's refusal to publish the controversial Danish cartoons ... in a book about the Danish cartoon crisis. Or the fact that various Western journalists, intellectuals and politicians — the list includes Oriana Fallaci in Italy, Michel Houellebecq in France, Mark Steyn in Canada and Geert Wilders in the Netherlands — have been hauled before courts and “human rights” tribunals, in supposedly liberal societies, for daring to give offense to Islam.

But there's still a sense in which the “South Park” case is particularly illuminating. Not because it tells us anything new about the lines that writers and entertainers suddenly aren't allowed to cross. But because it's a reminder that Islam is just about the only place where we draw any lines at all.

Across 14 on-air years, there's no icon “South Park” hasn't trampled, no vein of shock-comedy (sexual, scatalogical, blasphemous) it hasn't mined. In a less jaded era, its creators would have been the rightful heirs of Oscar Wilde or Lenny Bruce — taking frequent risks to fillet the culture's sacred cows.

In ours, though, even Parker's and Stone's wildest outrages often just blur into the scenery. In a country where the latest hit movie, “Kick-Ass,” features an 11-year-old girl spitting obscenities and gutting bad guys while dressed in pedophile-bait outfits, there isn't much room for real transgression. Our culture has few taboos that can't be violated, and our establishment has largely given up on setting standards in the first place.

Except where Islam is concerned. There, the standards are established under threat of violence, and accepted out of a mix of self-preservation and self-loathing.

This is what decadence looks like: a frantic coarseness that “bravely” trashes its own values and traditions, and then knuckles under swiftly to totalitarianism and brute force.

Happily, today's would-be totalitarians are probably too marginal to take full advantage. This isn't Weimar Germany, and Islam's radical fringe is still a fringe, rather than an existential enemy.

For that, we should be grateful. Because if a violent fringe is capable of inspiring so much cowardice and self-censorship, it suggests that there's enough rot in our institutions that a stronger foe might be able to bring them crashing down.

from the Wall Street Journal, 2010-Apr-27, by Ayaan Hirsi Ali:

'South Park' and the Informal Fatwa
The veiled threats against the Comedy Central show's creators should be taken very seriously.

'South Park" is hilarious, right? Not any more.

Last week, Zachary Adam Chesser—a 20-year-old Muslim convert who now goes by the name Abu Talhah Al-Amrikee—posted a warning on the Web site RevolutionMuslim.com following the 200th episode of the show on Comedy Central. The episode, which trotted out many celebrities the show has previously satirized, also "featured" the Prophet Muhammad: He was heard once from within a U-Haul truck and a second time from inside a bear costume.

For this apparent blasphemy, Mr. Amrikee warned that co-creators Trey Parker and Matt Stone "will probably end up" like Theo van Gogh. Van Gogh, readers will remember, was the Dutch filmmaker who was brutally murdered in 2004 on the streets of Amsterdam. He was killed for producing "Submission," a film that criticized the subordinate role of women in Islam, with me.

There has been some debate about whether Mr. Stone and Mr. Parker should view the Web posting as a direct threat. Here's Mr. Amrikee's perspective: "It's not a threat, but it really is a likely outcome," he told Foxnews.com. "They're going to be basically on a list in the back of the minds of a large number of Muslims. It's just the reality." He's also published the home and office addresses of Messrs. Stone and Parker, as well as images of Van Gogh's body.

According to First Amendment experts, technically speaking this posting does not constitute a threat. And general opinion seems to be that even if this posting was intended as a threat, Mr. Amrikee and his ilk are merely fringe extremists who are disgruntled with U.S. foreign policy; their "outrage" merits little attention.

This raises the question: How much harm can an Islamist fringe group do in a free society? The answer is a lot.

Mohammed Bouyeri, a Dutch-Moroccan Muslim first thought to have been a minor character in radical circles, killed Theo van Gogh. Only during the investigation did it emerge that he was the ringleader of the Hofstad Group, a terrorist organization that was being monitored by the Dutch Secret Service.

The story was very similar in the case of the Danish cartoons of the Prophet Muhammad. The cartoons, drawn by Kurt Westergaard, were published in September 2005 to little notice but exploded five months later into an international drama complete with riots and flag-burnings. The man behind this campaign of outrage was an Egyptian-born radical imam named Ahmed Abu-Laban.

Prior to this conflagration, Mr. Abu-Laban was seen as a marginal figure. Yet his campaign ended up costing Denmark businesses an estimated $170 million in the spring of 2006. And this doesn't include the cost of rebuilding destroyed property and protecting the cartoonists.

So how worried should the creators of "South Park" be about the "marginal figures" who now threaten them? Very. In essence, Mr. Amrikee's posting is an informal fatwa. Here's how it works:

There is a basic principle in Islamic scripture—unknown to most not-so-observant Muslims and most non-Muslims—called "commanding right and forbidding wrong." It obligates Muslim males to police behavior seen to be wrong and personally deal out the appropriate punishment as stated in scripture. In its mildest form, devout people give friendly advice to abstain from wrongdoing. Less mild is the practice whereby Afghan men feel empowered to beat women who are not veiled.

By publicizing the supposed sins of Messrs. Stone and Parker, Mr. Amrikee undoubtedly believes he is fulfilling his duty to command right and forbid wrong. His message is not just an opinion. It will appeal to like-minded individuals who, even though they are a minority, are a large and random enough group to carry out the divine punishment. The best illustration of this was demonstrated by the Somali man who broke into Mr. Westergaard's home in January carrying an axe and a knife.

Any Muslim, male or female, who knows about the "offense" may decide to perform the duty of killing those who insult the prophet. So what can be done to help Mr. Parker and Mr. Stone?

The first step is for them to consult with experts on how to stay safe. Even though living with protection, as I do now in Washington, D.C., curtails some of your freedom, it is better than risking the worst.

Much depends on how far the U.S. government is prepared to contribute to their protection. According to the Danish government, protecting Mr. Westergaard costs the taxpayers $3.9 million, excluding technical operating equipment. That's a tall order at a time of intense fiscal pressure.

One way of reducing the cost is to organize a solidarity campaign. The entertainment business, especially Hollywood, is one of the wealthiest and most powerful industries in the world. Following the example of Jon Stewart, who used the first segment of his April 22 show to defend "South Park," producers, actors, writers, musicians and other entertainers could lead such an effort.

Another idea is to do stories of Muhammad where his image is shown as much as possible. These stories do not have to be negative or insulting, they just need to spread the risk. The aim is to confront hypersensitive Muslims with more targets than they can possibly contend with.

Another important advantage of such a campaign is to accustom Muslims to the kind of treatment that the followers of other religions have long been used to. After the "South Park" episode in question there was no threatening response from Buddhists, Christians and Jews—to say nothing of Tom Cruise and Barbra Streisand fans—all of whom had far more reason to be offended than Muslims.

Islamists seek to replace the rule of law with that of commanding right and forbidding wrong. With over a billion and a half people calling Muhammad their moral guide, it is imperative that we examine the consequences of his guidance, starting with the notion that those who depict his image or criticize his teachings should be punished.

In "South Park," this tyrannical rule is cleverly needled when Tom Cruise asks the question: How come Muhammad is the only celebrity protected from ridicule? Now we know why.

Ms. Ali, a former member of the Dutch parliament, is the author of "Nomad: From Islam to America—A Personal Journey through the Clash of Civilizations," which will be published next month by Free Press.

from the Washington Examiner, 2010-Apr-20:

To Clinton, criticism is terrorism

Former President Bill Clinton has warned in speeches and in a New York Times op-ed commemorating the April 19, 1995, Oklahoma City terrorist bombing that "there is a big difference between criticizing a policy or a politician and demonizing the government that guarantees our freedoms and the public servants who enforce our laws." Clinton even defined "demonizing the government" by pointing out that the Oklahoma City bombers were motivated by "the belief that the greatest threat to American freedom is our government, and that public servants do not protect our freedoms, but abuse them." Sound like any group you've heard about recently?

Just as he did in 1995, Clinton is again peddling the argument that a new wave of domestic terrorism is coming this time because millions of Tea Partying Americans have during the past year or more taken to the streets to protest, often loudly, many of the policies advanced by President Obama, Senate Majority Leader Harry Reid, House Speaker Nancy Pelosi, and the Democratic majority in Congress. What Clinton neglects to say, however, is that criticism of Obamacare, the economic stimulus program, corruption in Congress, out-of-control federal spending, and an exploding national debt is widely shared among moderates, independents, and conservatives, among many Democrats as well as Republicans. That is why recent public opinion surveys found that 80 percent of Americans no longer trust their government, while majorities nearly as big say their congressmen don't deserve to be re-elected, and disapproval of the president's job performance is headed toward the 60 percent mark.

If Clinton and other liberal Democrats who agree with him truly believe that the words of Tea Partiers and other critics of the Obama presidency will inspire acts of terrorism, it only seems logical to conclude that they would also endorse official suppression of such speech. They need look no further for a precedent than the 1798 "Act to Punish Certain Crimes Against the United States" -- one of the Alien & Sedition Acts. That law made it illegal for any person to "write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them." Thankfully, Thomas Jefferson, after whom Clinton is named, and a new Congress elected in protest of that law, promptly repealed it. It's Jefferson's descendants carrying the protest signs today.

from USA Today, 2010-Apr-29, by Aamer Madhani, with David Jackson contributing:

Obama blasted, 13 nations cited on religious freedom

A bipartisan U.S. commission on religious freedom says President Obama is softening his stand on protecting the right to one's faith at a time when religious persecution is on the rise, according to an annual report to be released today.

The 11th annual report by the U.S. Commission on International Religious Freedom says Obama's recent call for nations to respect "freedom of worship" rather than "religious freedom" allows regimes to claim they are not oppressing certain religions if those faiths exist in a form acceptable to the regime.

"When you start narrowing the discussion, the signal the administration is sending to the international community is that as long as they prop up a few churches or houses of worship (of minority faiths), there isn't going to be a problem," Leonard Leo, the chairman of the commission, told USA TODAY.

The report also criticizes the administration for failing to nominate an ambassador-at-large for religious freedom.

The ambassador-at-large post, which falls under the State Department, is a requirement of a 1998 law that mandated religious freedom be an aim of U.S. diplomacy.

The commission was established to monitor religious freedom and issue an annual report on U.S. efforts in that area. Commission members are appointed by Congress and the White House. It recommends which countries should be named "countries of particular concern" (or CPCs) for egregious violations and suggests penalties.

Among the 13 countries that the State Department has already named CPCs are Burma, China, Iran, North Korea and Saudi Arabia. The label requires the administration to consider whether to levy sanctions against the nations.

The 2010 annual report notes that Obama spoke about the importance of religious freedom in speeches in Turkey and Cairo early in his term. But since then, Obama has stopped using the term, it says.

The White House disagreed. "The president has spoken clearly and unequivocally about his support for religious freedom," White House spokesman Tommy Vietor said.

Steven Groves, an analyst at the Heritage Foundation, a conservative Washington think tank, said the change in the phrase raises a question about the administration's commitment to confront regimes in the Middle East and elsewhere, especially in Iraq and Iran where minority Christian and Muslim sects have been oppressed and even attacked.

"The term religious freedom carries with it a certain understanding in the international community that is a much broader right than the freedom of worship," Groves said.

The commission report slams U.S.-supported nations, such as Iraq and Pakistan, for failing to protect members of minority faiths who have been targeted with violence or discrimination.

In April 2009 in Ankara, Obama said that "freedom of religion and expression lead to a strong and vibrant civil society that only strengthens the state."

In subsequent speeches in China and Japan, Obama appeared to dial back his vision on religious freedom, according to the report. He referred to "freedom of worship" in Japan on Nov. 14 and used the same phrase in a town hall meeting with Chinese students two days later.

from the American Constitution Society, 2010-Apr-6, by Sherwin Siy:

The Trouble with ACTA

The Anti Counterfeiting Trade Agreement, or ACTA, has received a fair bit of attention in the technology press and elsewhere, more so than might have been anticipated by a trade agreement. Its staunchest opponents warn that it threatens basic freedoms of speech and due process, and jeopardizes access to effective medicines around the world. Its most vehement supporters claim that without it, thousands of American jobs will succumb to the whims of pirates and counterfeiters. Academics have raised constitutional concerns [See below -AMPP Ed.] about both its process and substance, while the President has offered it up as a tool to "crack down on practices that blatantly harm our businesses." At Public Knowledge, we remain gravely concerned about its potential effects on the way we access the Internet and use the media we buy.

So what is this ACTA? A simple trade agreement? A nefarious circumvention of domestic law and legislative procedure? Something in between? And what does it actually do? The fact that such basic questions about ACTA exist and persist points to one of its most prominent and central flaws: its lack of transparency. Only the basics are offered on the U.S. Trade Representative's (USTR) website-that it is to be a "plurilateral" trade agreement between a number of countries, designed to combat the infringement of intellectual property. More recently released "fact sheets" from the USTR provide outlines for the agreement's topics of discussion, including proposals on civil and criminal enforcement, border measures, and Internet issues. (The website also features letters of endorsement for the as-yet undisclosed agreement from proponents.). Importantly, ACTA is being implemented in the U.S. as a sole executive agreement, and not a treaty of a congressional-executive agreement that would require legislative debate, consent, or approval.

As for its actual substance, the text of ACTA remains, officially, a secret. Freedom of Information Act (FOIA) requests on the text itself or drafts thereof have been rebuffed with claims that disclosure would reveal "foreign government information" that was given to the U.S. under a confidentiality agreement. An early draft of a section of the "Internet chapter" was disclosed to a small number of industry representatives and a smaller number of civil society advocates (myself among the latter), but under a non-disclosure agreement that prevents me, or any of those other people, from discussing and debating the provisions we saw openly.

The rationale for this secrecy is not particularly clear. While draft text offered by other parties might fall into the category of foreign government information, it is becoming increasingly clear that foreign governments involved in the negotiations are interested in disclosing the text. (The European Parliament, for one, has passed a resolution calling for the text to be made public.). The other reason offered for this secrecy is that it is habitual in trade agreements not to disclose negotiating positions. Yet ACTA's status as a trade negotiation seems less based in the nature of its substance than in the convenience that this designation provides. Unlike other free trade agreements, ACTA deals solely with intellectual property (IP) -- a relatively specific (but broadly significant) aspect of law and policy -- and not with any questions of tariffs, export limitations, or any other of the other areas that might necessitate negotiating parties keeping their positions in private negotiations. To the contrary, ACTA appears to contain mostly requirements for the IP laws -- requirements not limited to the goals of enforcing copyrights and trademarks -- of participating countries. Those requirements include providing for statutory damages, various types of secondary infringement, and strongly suggest enforcement mechanisms like the controversial "graduated response" or "three-strikes" rules.

We know this because a series of leaks, which include what appear to be full text and country positions. Even as the USTR assures the public that the agreement won't (and as an executive agreement, certainly can't) change U.S. law, the leaked text includes provisions that require particular interpretations of U.S. law-much of it judicially-made case law subject to ongoing interpretation and evolution. For example, one part of the Internet chapter requires member countries to include doctrines of secondary liability for infringement, using definitions and terms that can easily be more expansive than what exists in current domestic law. While this may seem like a minor detail, the determinations of such minor details are the stuff that multi-billion dollar lawsuits like the Viacom/Google litigation are made of.

Even without legislative action by Congress, differences like these can have a real influence on the course of domestic law, as international agreements are used as persuasive authority in statutory interpretation. And the history of IP law and its continual expansion give us reason to be at least somewhat suspicious that ACTA might be a form of "policy laundering." This was the case with the Digital Millennium Copyright Act, the provisions of which, after failing to capture Congress' interest, were incorporated into the WIPO Internet Treaties and then brought back to the U.S. as international obligations. The fact that ACTA conveniently was raised as a trade issue-in a forum where negotiations are more closed-has raises suspicions that this history of opportunistic forum-shifting might be repeating itself.

But the potential effects of ACTA go beyond merely nudging interpretations of U.S. law in a new direction. Acceding to a new international agreement would hamper attempts to amend some of the flaws in our current law, locking us into a system that already has apparent flaws. ACTA's effects on the laws of other countries should also be taken into account, as we want to ensure that IP laws don't unduly hamper the free speech of other countries' citizens, or, to take a more commercial tack, that IP laws don't subject US technology companies, like the makers of digital recording devices or hosting websites, to overbroad copyright liability.

None of this is intended to stand in the way of ACTA's stated goals of reducing infringement and enforcing IP laws. But while we can all agree that we do want to reduce fraudulent goods and counterfeiting, ACTA's leaked text seems to indicate that it could do much more. We could cynically assume that this is the result of a hidden purpose -- if not by its negotiators, then by those seeking to influence them. Or more charitably, these substantial flaws are the result of a lack of open, public debate on these issues.

Which brings us back to the necessary first problem with ACTA that needs to be solved before the others can be addressed -- the issue of transparency. The lack of transparency not only prevents advocates from any side from engaging in an informed, intelligent debate on the issues, it leads to a process that necessarily has an artificially constrained view of the values at stake. An agreement as broad and far-reaching as ACTA seems to be needs to be subject to public scrutiny. If sunlight is the best disinfectant, than its lack may well encourage flaws to fester, threatening not just the health of the agreement, but also of our laws and policies.

Sherwin Siy is Deputy Legal Director and the Kahle/Austin Promise Fellow at Public Knowledge, where he focuses on emerging copyright issues and international effects on IP and technology policy.

from the Washington Post, 2010-Mar-26, by Jack Goldsmith and Lawrence Lessig:

Anti-counterfeiting agreement raises constitutional concerns

The much-criticized cloak of secrecy that has surrounded the Obama administration's negotiation of the multilateral Anti-Counterfeiting Trade Agreement was broken Wednesday. The leaked draft of ACTA belies the U.S. trade representative's assertions that the agreement would not alter U.S. intellectual property law. And it raises the stakes on the constitutionally dubious method by which the administration proposes to make the agreement binding on the United States.

The goal of the trade pact is to tighten enforcement of global intellectual property rules. The leaked draft, though incomplete in many respects, makes clear that negotiators are considering ideas and principles not reflected in U.S. law.

ACTA could, for example, pressure Internet service providers -- such as Comcast and Verizon -- to kick users offline when they (or their children) have been accused of repeated copyright infringement because of content uploaded to sites such as YouTube. It also might oblige the United States to impose criminal liability on those who "incite" copyright violation. The draft more generally addresses "IP infringement" and thus could extend some of its rules to trademark and possibly patent law in ways that, after inevitable international compromises, will depart from U.S. law. It also contemplates creating an international "oversight council" to supervise (and possibly amend) aspects of the agreement.

These proposals might or might not make sense. But they ought at least be subject to public deliberation. Normal constitutional procedures would require the administration to submit the final text of the agreement for Senate approval as a treaty or to Congress as a "congressional-executive" agreement. But the Obama administration has suggested it will adopt the pact as a "sole executive agreement" that requires only the president's approval.

Such an assertion of unilateral executive power is usually reserved for insignificant matters. It has sometimes been employed in more important contexts, such as when Jimmy Carter ended the Iran hostage crisis and when Franklin Roosevelt recognized and settled expropriation claims with the Soviet Union.

The Supreme Court, however, has never clarified the limits on such agreements. Historical practice and constitutional structure suggest that they must be based on one of the president's express constitutional powers (such as the power to recognize foreign governments) or at least have a long historical pedigree (such as the president's claims settlement power, which dates back over a century).

Joining ACTA by sole executive agreement would far exceed these precedents. The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.

The administration has suggested that a sole executive agreement in this instance would not trample Congress's prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected. In any event, an anti-counterfeiting agreement made on the president's own authority could affect domestic law in at least three ways:

First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent state law and possibly federal law. Second, the agreement could invalidate state law that conflicts with its general policies under a doctrine known as obstacle preemption, even if the terms are not otherwise judicially enforceable. Third, a judicial canon requires courts to interpret ambiguous federal laws to avoid violations of international obligations. This means courts will construe the many ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.

If the president proceeds unilaterally here, ACTA will be challenged in court. But the best route to constitutional fidelity is for Congress or the Senate to protect its constitutional prerogatives. When the George W. Bush administration suggested it might reach a deal with Russia on nuclear arms reduction by sole executive agreement, then-Sen. Joe Biden wrote to Secretary of State Colin Powell insisting that the Constitution required Senate consent and implicitly threatening inter-branch retaliation if it was not given. The Bush administration complied.

Congress should follow Biden's lead. If the president succeeds in expanding his power of sole executive agreement here, he will have established a precedent to bypass Congress on other international matters related to trade, intellectual property and communications policy.

These mostly secret negotiations have already violated the Obama administration's pledge for greater transparency. Embracing this deal by sole executive agreement would repudiate its pledge to moderate assertions of executive power. Congress should resist this attempt to evade the checks established by our Framers.

Jack Goldsmith and Lawrence Lessig are professors at Harvard Law School. Goldsmith is co-author of "Who Controls the Internet?" Lessig is the author of "Remix: Making Art and Commerce Thrive in the Hybrid Economy."

from the Washington Post, 2010-Apr-14, by Dana Milbank:

Obama's disregard for media reaches new heights at nuclear summit

World leaders arriving in Washington for President Obama's Nuclear Security Summit must have felt for a moment that they had instead been transported to Soviet-era Moscow.

They entered a capital that had become a military encampment, with camo-wearing military police in Humvees and enough Army vehicles to make it look like a May Day parade on New York Avenue, where a bicyclist was killed Monday by a National Guard truck.

In the middle of it all was Obama -- occupant of an office once informally known as "leader of the free world" -- putting on a clinic for some of the world's greatest dictators in how to circumvent a free press.

The only part of the summit, other than a post-meeting news conference, that was visible to the public was Obama's eight-minute opening statement, which ended with the words: "I'm going to ask that we take a few moments to allow the press to exit before our first session."

Reporters for foreign outlets, many operating in repressive countries, got the impression that the vaunted American freedoms are not all they're cracked up to be.

Yasmeen Alamiri from the Saudi Press Agency got this lesson in press freedom when trying to cover Obama's opening remarks as part of a limited press "pool": "The foreign reporters/cameramen were escorted out in under two minutes, just as the leaders were about to begin, and Obama was going to make remarks. . . . Sorry, it is what it is."

Alamiri's counterparts from around the world had similar experiences. Arabic-language MBC TV's Nadia Bilbassy had this to say of Obama's meeting with the Jordanian king: "We were there for around 30 seconds, not enough even to notice the color of tie of both presidents. I think blue for the king."

Lalit K. Jha of the Press Trust of India, at Obama's meeting with the Pakistani prime minister, reported, "In less than a minute, the pool was asked to leave." The Yomiuri Shimbun correspondent found that she was "ushered out about 30 seconds" after arriving for Obama's meeting with the Malaysian prime minister. Emel Bayrak of Turkey's TRT-Turk went to Obama's meeting with the president of Armenia but "we had to leave the room again after less than 40 seconds."

"When you only see the president for 15 or 20 seconds without him asking if you have any questions, it's very frustrating," said Laura Haim of France's Canal+, which persuaded the White House to include foreign outlets in the press pool. "It's very important for this president, who wants to restore the image of the United States, to have more access."

Obama's official schedule for Tuesday would have pleased China's Central Committee. Excerpts: "The President will attend the Heads of Delegation working lunch. This lunch is closed press . . . The President will meet with Prime Minster Erdogan of Turkey. This meeting is closed press. . . . The President will attend Plenary Session II of the Nuclear Security Summit. This session is closed press."

Reporters, even those on the White House beat for two decades, said it was the most restrictive set of meetings they had ever seen in Washington. They complained to both the administration and White House Correspondents' Association, which will discuss the matter Wednesday with White House press secretary Robert Gibbs.

The restrictions have become a common practice for the Obama White House. When Israeli Prime Minister Benjamin Netanyahu came to the White House a couple of weeks ago, reporters were kept away. Soon after that, Obama signed an executive order on abortion, again without any coverage.

Over the weekend, Obama broke with years of protocol and slipped off to a soccer game without the "protective" pool that is always in the vicinity of the president in case the unthinkable occurs. Obama joked about it later to Pakistan's prime minister, saying reporters "were very upset."

In "bilateral" meetings with foreign leaders, presidents usually take questions, or at least trade statements. But at most of Obama's, there were only written "readouts":

Canada: "The president and the prime minister noted the enduring strength of our bilateral partnership." India: "The two leaders vowed to continue to strengthen the robust relationship between the people of their countries." Pakistan: "President Obama began by noting that he is very fond of Pakistan."

Reporters, many in a "filing center" about a quarter-mile away from the leaders' meetings, relied on dispatches from colleagues allowed in as the press pool. The dispatches, over three days, were uniform: "They were too far away to hear conversation. . . . Again, Obama had nothing to say of substance that pooler heard. . . . We were in for all of 30 seconds. No news; no quotes and again no statements. . . . Same deal folks."

Finally, Obama walked over to a group of reporters Monday afternoon. Would he give them an account of his meetings? "I'll let somebody else do it," he said with a smile.

from the Wall Street Journal, 2010-Apr-19, by L. Gordon Crovitz:

Is Internet Civility an Oxymoron?
Unmoderated, anonymous comments on Web sites create more noise than wisdom.

For those of us tempted to hope that new technology might improve human nature, the Web has proved a disappointment. The latest online reality: comment sections so uncivilized and uninformative that it's clear the free flow of anonymous comments has become way too much of a good thing.

The common practice is for news and other Web sites to treat all comments equally, whether made anonymously or using real names, via obscenities or reasoned debate. The hope was that people would be civil. Instead, many comment areas have become wastelands of attacks and insults.

"Too many of us like to think that we have made great progress in human relations," wrote Doug Feaver earlier this month in the Washington Post. "Unmoderated comments provide an antidote to such ridiculous conclusions." Mr. Feaver writes a blog called dot.comments that covers what readers are saying on the Post's site.

Part of the problem is that people who conceal their names seem to feel free to say things they never would if their identities were known. There are obvious cases—dissidents living in authoritarian countries—where anonymity is needed. But as Miami Herald columnist Leonard Pitts Jr. wrote recently, message boards dominated by anonymous comments often become "havens for a level of crudity, bigotry, meanness and plain nastiness that shocks the tattered remnants of our propriety."

There are remedies. Popular commentators on many sites and blogs go by their own names or at least by recognizable noms de plume, so their comments can be tracked. Sites letting readers rank the reputation of comment writers also help.

Some edgier Web sites have been leaders in taming message boards. Gawker.com last year put in place a system that gives preferred placements for comments from people who get high marks among the site's readers and editors. Founder Nick Denton explained, "It's our party; we get to decide who comes." At first, the number of comments dropped off, but comments then doubled over the past nine months as readers vied to become trusted commentators.

Peer News, a new site launching in Hawaii and funded by eBay founder Pierre Omidyar, will not permit comments at all. Editor John Temple said anonymity had so reduced responsibility that comments sections have been dominated by "racism, hate, ugliness" and "reflect badly on news organizations that have them."

Other media outlets permit comments but filter them to give readers control over which ones they see. The Wall Street Journal's Web site gives readers the option of seeing only comments from paying subscribers (which is how I first review responses to these columns). The Washington Post announced this month it soon will rank "trusted commentators" based on their complying with guidelines and using real names. Readers will be able to access comments from less trusted commentators, but only if they click further to do so.

By now, there's an entire vocabulary to describe bad behavior, from flaming (hostile interactions between people on comment boards) to astroturfing (anonymous postings made to appear as grass-roots efforts that are actually organized political or PR efforts).

Used properly, the Web can deliver crowd-sourced useful information. As the "balloon boy" story was under way last year, National Public Radio's online commenters posted complex mathematical equations showing that the claim about a boy floating in a helium balloon his father had built could not be true. Here's what passes for flaming on NPR.org: "Show your math!"

A Web site launched this month called Unvarnished goes so far as to make anonymous comments its business model. It invites "community-contributed, business-focused assessments of professional performance" of named individuals, with commenters kept anonymous, which means readers have no way to assess their interests or biases. The subjects of comments can't remove them.

Michael Arrington of TechCrunch.com objected to this approach, writing sarcastically, "It's time for a centralized, well-organized place for anonymous mass defamation on the Internet." He figures that "we're going to be forced to adjust as a society," to forgive indiscretions and to get smarter about ignoring comments from sources whose credibility is low.

The Web is a great liberator, giving millions of people the ability to offer opinions with the ease once reserved for, say, newspaper columnists. The downside is that comment overload and anonymity create more noise than wisdom. Since it's now clear human nature hasn't improved with the transition to digital media, we should cheer efforts to make it as easy for readers to decide which commenters to trust as it has become to post the comments.

Technology, for all its benefits, is no substitute for readers' own judgments.

from the Asssociated Press, 2010-Apr-21, by David Bauder:

Muslim group warns 'South Park' creators of death

NEW YORK — A radical Muslim group has warned the creators of "South Park" that they could face violent retribution for depicting the prophet Muhammad in a bear suit during last week's episode.

The website RevolutionMuslim.com has since been taken down, but a cached version shows the message to "South Park" creators Trey Parker and Matt Stone. The article's author, Abu Talhah Al-Amrikee, said the men "outright insulted" the religious leader.

The posting showed a gruesome picture of Theo Van Gogh, a Dutch filmmaker who was shot and stabbed to death in an Amsterdam street in 2004 by a fanatic angered by his film about Muslim women. The film was written by a Muslim woman who rejected the Prophet Muhammad as a guide for today's morality.

"We have to warn Matt and Trey that what they are doing is stupid and they will probably wind up like Theo Van Gogh for airing this show," Al-Amrikee wrote. "This is not a threat, but a warning of the reality of what will likely happen to them."

The posting listed the addresses of Comedy Central's New York office and Parker and Stone's California production office. It also linked to a Huffington Post article that described a Colorado retreat owned by the two men.

CNN, which first reported the posting, said the New York-based website is known for postings in support of jihad, or holy war, against the West and Osama bin Laden.

Al-Amrikee told The Associated Press that the posting was made to raise awareness of the issue and to see that it does not happen again. Asked if Parker and Stone should feel threatened by it, he said "they should feel threatened by what they did."

He said he was disappointed that publicity about the posting focused more on the potential danger to the producers but admitted, "I could shoulder some blame" for it.

He said he "can't answer that legally" when asked if his group favored jihad. But he praised bin Laden.

"We look up to him and admire him for the sacrifices he has given for the religion," he said.

Last week's episode, the 200th for the cheeky and often vulgar cartoon, was intended to feature many of the personalities and groups that Parker and Stone insulted during the series' run.

In 2006, Comedy Central banned the men from showing an image of Muhammad on their show. They had intended to comment on the controversy created by a Danish newspaper's publishing of caricatures of the Islamic leader. Muslims consider any physical representation of their prophet to be blasphemous.

Instead, "South Park" showed an image of Jesus Christ defecating on President Bush and the American flag.

Comedy Central and the show's producers would not comment.

from the Wall Street Journal's Political Diary, 2010-Apr-12, by John Fund:

The Iron Fist Behind the Moonbeam

Polls show that one of the biggest obstacles facing Jerry Brown in his comeback bid to become governor of California is the sour memory older voters have of his eight years in the job between 1975 and 1983. Mr. Brown is roughly tied with Republican businesswoman Meg Whitman in general election poll matchups.

That may explain why Mr. Brown reacted so harshly to a TV ad criticizing his gubernatorial record briefly aired by the California Chamber of Commerce last week. The ad pointed out that Mr. Brown had opposed the now-legendary tax-cutting Proposition 13 and oversaw a dramatic increase in state spending. Reporters say both Mr. Brown and his wife Anne Gust, former CEO of clothing company The Gap, responded by placing calls to chamber members asking them to demand that the spot be taken off the air.

The ad was indeed suddenly pulled. Chamber head Al Zaremberg says his group "accomplished what we tried to accomplish" while acknowledging that "we probably got a little more attention than we expected." He confirmed that Mr. Brown, now the state's attorney general in charge of enforcing a great deal of business regulation, had "called members of our board."

With the Brown ad yanked, the chamber is running a more subdued spot suggesting viewers visit the Chamber's Web site for "facts and answers about our future." None of the state's candidates for governor are mentioned by name. The incident is a vivid illustration of the power of government regulators to silence or neuter any unwelcome political messages coming from the businesses under their heel.

from the Wall Street Journal, 2010-Jan-22:

A Free Speech Landmark
Campaign-finance reform meets the Constitution.

Freedom has had its best week in many years. On Tuesday, Massachusetts put a Senate check on a reckless Congress, and yesterday the Supreme Court issued a landmark decision supporting free political speech by overturning some of Congress's more intrusive limits on election spending.

In a season of marauding government, the Constitution rides to the rescue one more time.

Justice Anthony Kennedy wrote yesterday's 5-4 majority opinion in Citizens United v. Federal Election Commission, which considered whether the government could ban a 90-minute documentary called "Hillary: the Movie" that was set to run on cable channels during the 2008 Presidential campaign. Because it was funded by an incorporated group and was less than complimentary of then-Senator Hillary Clinton, the film became a target of campaign-finance limits.

The 2002 Bipartisan Campaign Finance Act, aka McCain-Feingold, banned corporations and unions from "electioneering communications" within 30 days of a primary or 60 days of a general election. Yesterday, the Justices rejected that limit on corporate spending as unconstitutional. Corporations are entitled to the same right that individuals have to spend money on political speech for or against a candidate.

Justice Kennedy emphasized that laws designed to control money in politics often bleed into censorship, and that this violates core First Amendment principles. "Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence," he wrote. The ban on corporate expenditures had a "substantial, nationwide chilling effect" on political speech, he added.

In last year's oral argument for Citizen's United, the Court got a preview of how far a ban on corporate-funded speech could reach. Deputy Solicitor General Malcolm Stewart explained that, under McCain-Feingold, the government had the authority to "prohibit the publication" of corporate-funded books that called for the election or defeat of a candidate.

That was a shock and awe moment at the Court, as it also should have been to a Washington press corps that has too often been a cheerleader for campaign-spending limits. Mr. Stewart was telling a truth already familiar to campaign-finance lawyers and the speech police at the Federal Election Commission. Former FEC Commissioner Hans von Spakovsky recalled yesterday that in 2004 the agency investigated whether a book written by George Soros critical of George W. Bush violated campaign laws. Liberals as much as conservatives should worry about laws that allow such investigations.

The Court's opinion is especially effective in dismantling McCain-Feingold's arbitrary exemption for media corporations. Thus a corporation that owns a newspaper—Dow Jones or the New York Times—retains its First Amendment right to speak freely. "At the same time, some other corporation, with an identical business interest but no media outlet in its ownership structure, would be forbidden to speak or inform the public about the same issue," wrote Justice Kennedy. "This differential treatment cannot be squared with the First Amendment."

For instruction and sheer entertainment, we also recommend Justice Antonin Scalia's concurring opinion that demolishes Justice John Paul Stevens's argument in dissent that corporations lack free speech rights because the Founding Fathers disliked them. "If so, how came there to be so many of them?" Mr. Scalia writes, in one of his gentler lines.

The landmark decision—which overturned two Supreme Court precedents—has already sent the censoring political class into orbit. President Obama was especially un-Presidential yesterday, putting on his new populist facade to call it "a major victory for big oil, Wall Street banks, health insurance companies" and other "special interests." Mr. Obama didn't mention his union friends as one of those interests, but their political spending will also be protected by the logic of this ruling. The reality is that free speech is no one's special interest.

New York Senator Chuck Schumer vowed to hold hearings, and the Naderite Public Citizen lobby is already calling for a constitutional amendment that bans free speech for "for-profit corporations." Liberalism's bullying tendencies are never more on display than when its denizens are at war with the speech rights of its opponents.

Perhaps one day the Court will go even further and overturn Buckley v. Valeo, the 1976 decision that was its original sin in tolerating limits on campaign spending. The Court did yesterday uphold disclosure rules, so a sensible step now would be for Congress to remove all campaign-finance limits subject only to immediate disclosure on the Internet. Citizens United is in any event a bracing declaration that Congress's long and misbegotten campaign-finance crusade has reached a Constitutional dead end.

from the Wall Street Journal, 2010-Feb-24:

Repealing the First Amendment
The campaign finance crowd has more ideas for limiting speech.

It didn't take long for Congress to try an end-run around the Supreme Court's landmark January decision in Citizens United v. FEC. With a campaign finance bill due to be introduced this week, Democrats are proposing to repeal the First Amendment, at least for some people.

Senator Chuck Schumer of New York and Representative Chris Van Hollen of Maryland want to prevent any company with more than 20% of foreign shareholders from spending money in U.S. elections, ban TARP recipients and government contractors from campaign spending, and require CEOs to pop up at the end of television commercials to "approve this message" just like politicians.

Maryland Democrat Donna Edwards and Michigan Democrat John Conyers are going further and proposing to amend the Constitution so it bars corporate free speech. John Kerry and Arlen Specter are also on board for a First Amendment rewrite. At least these Constitutional amenders are honest about their goals and what it requires to be legal.

Not so Messrs. Schumer and Van Hollen, who want to sneak their speech bans by degrees into legislation. While current law already prevents foreign corporations from participating in U.S. elections, their proposal would silence some five million Americans who work for domestic subsidiaries of foreign companies and whose money is generated in the U.S. As a Constitutional matter, that amounts to telling some Americans that they may not engage in political speech—a formula the Supreme Court has rejected in such other recent cases as Davis v. FEC.

The Democrats don't include unions in their speech bans, though the Supreme Court recently liberated unions from campaign-finance rules too. As former Federal Election Commission member Hans von Spakovsky points out, the Service Employees International Union often boasts of its hefty percentage of Canadian members. Should it be barred from donating to President Obama?

As for restricting campaign spending by government contractors, the Supreme Court explicitly laid out in Citizens United that the only rational basis for such a limit is corruption or the appearance of corruption. Independent spending of the kind the Court allowed doesn't count here because, unlike direct contributions to candidates, there is no potential for kickbacks. As the Center for Competitive Politics points out, restricting all contractors also runs afoul of the Constitution because the government provides its employees (teachers, doctors and so on) with benefits, and it may not make those things conditional on the contractors forfeiting their right to free speech.

We've long supported disclosure for campaign contributions, so voters can judge for themselves if certain donations are corrupting. But Mr. Schumer's version of disclosure is designed to discourage speech with complex regulation, including a new and separate disclosure regime with the Securities and Exchange Commission.

As for CEO appearances in advertisements, will trial lawyer donors have to do the same? How about SEIU chief Andy Stern? The double standard for unions and business betrays Mr. Schumer's real goal, which is a partisan fund-raising advantage for Democrats.

As a practical matter, all of this continues the game of whack-a-mole that the campaign-finance restrictionists have pursued for decades to little avail. They haven't stopped the flow of money into campaigns or produced cleaner government, but they have made fund-raising far more complex and legally difficult for donors and candidates. These new efforts are destined for a similar fate if they ever make it into law—and we hope Republicans filibuster them.

Citizens United blew a huge hole in the campaign finance rules, and there is no Constitutional way to refill it. The campaign-finance restrictionists should give up their misbegotten and illegal regulatory model and try deregulation and transparency instead. States like Virginia and Utah have no contribution limits but require disclosure and are among the best-run states in such traditional hallmarks of good government as economic health and development. The First Amendment has worked pretty well for 230 years. We don't need a rewrite.

from the New York Times, 2010-Feb-25, by Rachel Donadio, with Eric Sylvers contributing reporting from Milan, and Eric Pfanner from Paris:

Larger Threat Is Seen in Google Case

ROME — Three Google executives were convicted of violating Italian privacy laws on Wednesday, the first case to hold the company's executives criminally responsible for the content posted on its system.

The verdict, though subject to appeal, could have sweeping implications worldwide for Internet freedom: It suggests that Google is not simply a tool for its users, as it contends, but is effectively no different from any other media company, like newspapers or television, that provides content and could be regulated.

The ruling further complicates the business environment for Google in Europe, where it faces a wave of antitrust complaints. And it comes shortly after Google threatened to withdraw from China, citing sophisticated attacks by hackers there and Chinese demands that it restrict information available to local users.

Google's enormous search and advertising business depends heavily on its reach into every corner of the global Internet and on providing users access to as much digital content as possible, regardless of its origins or ownership.

The Italian move to hold the company or its executives responsible for text, photographs or videos made available by third parties through Google and its online services, like YouTube, poses a significant challenge to the company's business model, along with those of other Internet companies like Facebook and Twitter.

In Italy, where Prime Minister Silvio Berlusconi owns most private media and indirectly controls public media, there is a strong push to regulate the Internet more assertively than it is controlled elsewhere in Europe. Several measures are pending in Parliament here that seek to impose various controls on the Internet. Critics of Mr. Berlusconi say the measures go beyond routine copyright questions and are a way to stave off competition from the Web to public television stations and his own private channels — and to keep a tighter grip on public debate.

“It's a deliberate effort to control the means of communication,” said Juan Carlos de Martin, the founder of the Nexa Center at Turin's Polytechnic University, which studies Internet use in Italy.

Italy has one of the lowest rates of Internet use and e-commerce in Europe, and experts warned that the ruling on Wednesday could erode the nation's position further and limit information to young people, who watch television less than their parents.

In Milan, Judge Oscar Magi sentenced the Google executives in absentia to six-month suspended sentences for violation of privacy. Prosecutors said Google did not act fast enough to remove from the site a widely viewed video posted in 2006 showing a group of teenage boys harassing an autistic boy.

But Judge Magi, who has 90 days to issue his reasoning, cleared the Google executives of defamation charges. The three were Peter Fleischer, chief privacy counsel; David Drummond, senior vice president and chief legal officer; and George Reyes, a former chief financial officer. A fourth defendant, Arvind Desikan, charged only with defamation, was acquitted.

Internet activists and the American ambassador to Italy cried foul about the ruling, which some likened to punishing the mailman for delivering a nasty letter.

A spokesman for Google, Bill Echikson, called the ruling “astonishing” and said the company would appeal. In its blog, Google added that the ruling “attacks the very principles of freedom on which the Internet is built.”

Prosecutors said Google waited to remove the video until after complaints to the police by Vivi Down, an Italian group representing people with Down syndrome, whose name was mentioned by the boys in the video.

Google said it removed the video within two hours of receiving a formal complaint from the Italian police, two months after the video was first posted.

The boys, all minors, were not charged by prosecutors, but were sentenced by a different judge to community service. Prosecutors named the Google executives because Italian law holds corporate executives responsible for a company's actions.

Google maintains that the ruling contradicted a European Union directive on electronic commerce that gives service providers safe harbor from liability for the content they host.

But prosecutors argued that because Google handled user data — and used content to generate advertising revenue — it was a content provider, not a service provider, and therefore broke Italian privacy law. It prohibits the use of someone's personal data with the intent of harming him or making a profit.

“To say this is about censorship has a big media effect, but is false,” said Alfredo Robledo, one of the prosecutors. “This is about finding a balance between free enterprise and the protection of human dignity.”

Still, the upshot of the ruling, if it prevails on appeal, is that Google will be expected in Italy to monitor the content it hosts. Mr. Echikson, the Google spokesman, said that would be impossible considering that 20 hours of video are uploaded to its site every minute.

The American ambassador to Italy, David Thorne, said he was “disappointed” by the ruling.

“We disagree that Internet service providers are responsible prior to posting for the content uploaded by users,” he said in a statement, adding that Secretary of State Hillary Rodham Clinton had said that “free Internet is an integral human right that must be protected in free societies.”

Mr. Robledo said that a company like Google could easily find ways to monitor its content, and that it should not profit from advertising revenue generated from content that violated privacy laws. He said if Google had found a way to create filters in China, it could do the same in Italy, not to monitor political content “but to protect human dignity.”

Google disagreed.

“If company employees like me can be held criminally liable for any video on a hosting platform, when they had absolutely nothing to do with the video in question, then our liability is unlimited,” said one of the three executives, Mr. Fleischer.

The Google ruling comes amid other proposed legislation that would seek to bureaucratize the Internet in Italy, including the highly contested Italian version of a European directive that would compel online broadcasters to seek the same licensing agreements as broadcast television. Google lobbied for changes to the proposal.

Paolo Romani, a deputy communications minister who sponsored the measure, said the issue was copyright protection. “It has nothing to do with the fact that our prime minister also owns television stations,” he said. “It's in Berlusconi's interest not to be accused of conflict of interest.”

Another proposal pending in Italy, tucked into a bill on wiretapping, would require blogs to publish corrections within 48 hours, as newspapers are required to do, while a third would make sites responsible for anonymous comments posted on them.

Paolo Gentiloni, a leading opposition member and a former communications minister, said Internet regulation was inevitably political. Today in Italy, he said, “political power is in the hands of people who do TV, not the Internet.”

“The slower broadband is, the better it is for a broadcasting-oriented government,” he added.

Others warned that Italy's red tape — including the Google ruling — could stifle free expression. Mr. de Martin, of the Nexa Center, said that universities and companies might not want to run the risk of opening Web forums if they would be criminally liable for their contents.

“If you bureaucratize it even a little, you eliminate thousands or millions of people who don't feel like making the effort,” he said.

from the Washington Post, 2010-Mar-25, by Ellen Nakashima and Cecilia Kang:

Network Solutions, GoDaddy cease registering Web sites in China

Two major Internet domain name registration companies have ceased registering Web sites in China in response to intrusive new government rules that require applicants to provide extensive personal data, including photographs of themselves.

GoDaddy.com, the world's largest domain name registration company, and Network Solutions, based in Herndon, objected to policies that were imposed by China in December.

The rules, Go Daddy said, are an effort by China to increase monitoring and surveillance of Web site content and could put individuals who register their sites with the firm at risk. The company also said the rules will have a "chilling effect" on new domain name registrations.

The decisions come amid a showdown between China and Google, which recently announced it will no longer censor search results on its site in the country. Analysts and human rights advocates have warned that China's insistence on censorship and control over information is becoming a serious barrier to trade.

Go Daddy announced its decision at a congressional hearing on Wednesday.

"Go Daddy and Google deserve more than praise for doing the right thing in China -- they deserve our government's support," said Rep. Christopher H. Smith (R-N.J.), who has sponsored a bill that would prevent U.S. companies from sharing personal user information with "Internet-restricting" countries.

In December, China began to enforce a new policy that required any registrant of a new .cn domain name to provide a color, head-and-shoulders photograph and other business identification, including a Chinese business registration number and physical, signed registration forms. That data was to be forwarded to the China Internet Network Information Center (CNNIC), a quasi-governmental agency. Most domain name registries require only a name, address, telephone number and e-mail address.

"We were immediately concerned about the motives behind the increased level of registrant verification being required," Christine N. Jones, general counsel of the Go Daddy Group, told the Congressional-Executive Commission on China. "The intent of the procedures appeared, to us, to be based on a desire by the Chinese authorities to exercise increased control over the subject matter of domain name registrations by Chinese nationals."

Go Daddy has been registering domain names since 2000 and has more than 40 million domain names under management.

Jones said China was the first government to retroactively seek additional verification and documentation of registrants.

Jones also said Go Daddy customers with Chinese domain names have recently been attacked more frequently than in the past. The sites targeted tend to be those "deemed not appropriate" by Beijing -- sites that contain content about the Tiananmen Square uprising or human rights, for instance.

"When our sites get shut down in China, we are never told why . . . and it's impossible to know why," Jones said.

The Chinese Embassy in Washington did not respond to a request for comment.

Network Solutions said it stopped taking new accounts in China last December, according to spokeswoman Susan Wade.

"Of course the decision affects our businesses, but it also didn't make business sense to operate under their change of procedures," she said.

Arvind Ganesan, business and human rights director at Human Rights Watch, said China's new rules are yet another example of the country tightening its censorship policies and undermining the ability of U.S. companies to operate freely.

"The underlying intent is if you're engaging in political speech, we want to know who's engaging in it and what Web site is behind it," Ganesan said. "This is a way the Chinese government can send a chilling message to people that they shouldn't speak freely online. It's forcing us companies to be both the censor and the spy on behalf of the Chinese government."

Jones said Go Daddy's decision to stop registering new domains was unrelated to Google's recent decision.

"With all due respect, this has nothing to do with Google," she said. She added that the company had been deliberating what it would do about its business in China before Google's announcement.

"We decided we didn't want to be agents of China," she said.

At Wednesday's hearing, Alan Davidson, Google's director of public policy, said governments worldwide should develop new rules to combat unfair trade barriers online and should make Internet freedom part of the criteria for receiving development aid. He noted that the number of governments that routinely censor the Internet has grown from a handful in 2002 to more than 40 today.

from the Wall Street Journal, 2010-Jan-14, by Patrick Caddell and Douglas E. Schoen:

Don't Shoot the Pollster
Attacks on Scott Rasmussen and Fox News show a disturbing attitude toward dissent.

Polling is both an art and a science, but recently it's also become a subject of political intimidation.

One shot was fired by White House Press Secretary Robert Gibbs on Dec. 8, when he dismissed Gallup's daily tracking of President Obama's job approval. It had hit a record low of 47%, and Mr. Gibbs called the results meaningless:

"If I was a heart patient and Gallup was my EKG I'd visit my doctor. If you look back I think five days ago. . . there was an 11 point spread, now there's a one point spread. . . I'm sure a six-year-old with a crayon could do something not unlike that. I don't put a lot of stake in, never have, in the EKG that is the daily Gallup trend. I don't pay a lot of attention to meaninglessness."

Polling is a science because it requires a range of sampling techniques to be used to select a sample. It is an art because constructing a sample and asking questions is something that requires skill, experience and intellectual integrity. The possibility of manipulation—or, indeed, intimidation—is great.

A recent case in point is what has happened to Scott Rasmussen, an independent pollster we both work with, who has an unchallenged record for both integrity and accuracy. Mr. Rasmussen correctly predicted the 2004 and 2008 presidential races within a percent, and accurately called the vast majority of contested Senate races in 2004 and 2006. His work has sometimes been of concern for Republicans, particularly when they were losing congressional seats in 2004 and 2006.

Most recently, Mr. Rasmussen has been the leader in chronicling the decline in the public's support for President Obama. And so he has been the target of increasingly virulent attacks from left-wing bloggers seeking to undermine his credibility, and thus muffle his findings. A Politico piece, "Low Favorables: Democrats Rip Rasmussen," reported on the attacks from blogs like the Daily Kos, Swing State Project, and Media Matters.

"Rasmussen Caught With Their Thumb on the Scale," cried the Daily Kos last summer. "Rasmussen Reports, You Decide," the blog Swing State Project headlined not long ago in a play on the Fox News motto.

"I don't think there are Republican polling firms that get as good a result as Rasmussen does," Eric Boehlert, a senior fellow with the progressive research outfit Media Matters, said in a Jan. 2 Politico article. "His data looks like it all comes out of the RNC."

Liberals have also noted that Rasmussen's daily presidential tracking polls have consistently placed Mr. Obama's approval numbers around five percentage points lower than other polling outfits throughout the year. This is because Rasmussen surveys likely voters, who are now more Republican in orientation than the overall electorate. (Gallup and other pollsters survey the entire adult population.) On other key issues like health care, Rasmussen's numbers have been echoed by everyone else.

Mr. Rasmussen, who is avowedly not part of the Beltway crowd in Washington, has been willing to take on issues like ethics and corruption in ways no other pollsters have been able to do. He was also one of the first pollsters to stress people's real fear of the growing size of government, the size of the deficit, and the concern about spending at a time when these issues were not really on Washington's radar screen.

The reaction against him has been strident and harsh. He's been called an adjunct of the Republican Party when in fact he has never worked for any political party. Nor has he consulted with any candidates seeking elective office.

The attacks on Rasmussen and Gallup follow an effort by the White House to wage war on Fox News and to brand it, as former White House Director of Communications Anita Dunn did, as "not a real news organization." The move backfired; in time, other news organizations rallied around Fox News. But the message was clear: criticize the White House at your peril.

As pollsters for two Democratic presidents who served before Barack Obama, we view this unprecedented attempt to silence the media and to attack the credibility of unpopular polling as chilling to the free exercise of democracy.

This is more than just inside baseball. As practicing political consultants, both of us have seen that the established parties try to stifle dissent among their political advisers and consultants. The parties go out of their way to try to determine in advance what questions will be asked and what answers will be obtained to reinforce existing party messages. The thing most feared is independence, which is what Mr. Rasmussen brings.

Mr. Gibbs's comments and the recent attempts by the Democratic left to muzzle Scott Rasmussen reflect a disturbing trend in our politics: a tendency to try to stifle legitimate feedback about political concerns—particularly if the feedback is negative to the incumbent administration.

Mr. Caddell served as a pollster for President Jimmy Carter. Mr. Schoen, who served as a pollster for President Bill Clinton, is the author of "The Political Fix" just out from Henry Holt.

from the Wall Street Journal, 2010-Jan-8, by Jaron Lanier:

World Wide Mush

In his new book, "You Are Not A Gadget," online pioneer Jaron Lanier explains how the Internet has gone off course; a chorus of voices makes everything flat—and scary

All too many of today's Internet buzzwords— including "Web 2.0," "Open Culture," "Free Software" and the "Long Tail"—are terms for a new kind of collectivism that has come to dominate the way many people participate in the online world. The idea of a world where everybody has a say and nobody goes unheard is deeply appealing. But what if all of the voices that are piling on end up drowning one another out?

There's no escaping collectivism in our online world. If you search about most any topic online, for instance, you will likely be directed first to Wikipedia, a collective effort. Google Wave, a new communication tool that is intended to supplant email, encourages you to blur personal boundaries by editing what someone else has said in a conversation with you, and you can watch each other as you type so nobody gets a private moment to consider a thought before posting. And if you listen to music online, there's a good chance your listening will be guided by statistical analysis of Internet crowd preferences.

Most people know me as the "father of Virtual Reality technology." In the 1980s and 1990s, I was a young computer scientist and entrepreneur working on how to apply virtual reality to things like surgical simulation. But I was also part of a circle of friends who tried to imagine how computers would fit into the peoples' lives, including how people might make a living in the future. Our dream came true, in part. It turns out that millions of people are ready to contribute instead of sitting passively on the couch watching television. On the other hand, we made a huge mistake in making those contributions unpaid, and often anonymous, because those bad decisions robbed people of dignity. I am appalled that our old fantasies have become so entrenched that it's hard to get anyone to remember that there are alternatives to a framework that isn't working.

Here's one problem with digital collectivism: We shouldn't want the whole world to take on the quality of having been designed by a committee. When you have everyone collaborate on everything, you generate a dull, average outcome in all things. You don't get innovation.

If you want to foster creativity and excellence, you have to introduce some boundaries. Teams need some privacy from one another to develop unique approaches to any kind of competition. Scientists need some time in private before publication to get their results in order. Making everything open all the time creates what I call a global mush.

There's a dominant dogma in the online culture of the moment that collectives make the best stuff, but it hasn't proven to be true. The most sophisticated, influential and lucrative examples of computer code—like the page-rank algorithms in the top search engines or Adobe's Flash— always turn out to be the results of proprietary development. Indeed, the adored iPhone came out of what many regard as the most closed, tyrannically managed software-development shop on Earth.

Actually, Silicon Valley is remarkably good at not making collectivization mistakes when our own fortunes are at stake. If you suggested that, say, Google, Apple and Microsoft should be merged so that all their engineers would be aggregated into a giant wiki-like project—well you'd be laughed out of Silicon Valley so fast you wouldn't have time to tweet about it. Same would happen if you suggested to one of the big venture-capital firms that all the start-ups they are funding should be merged into a single collective operation.

But this is exactly the kind of mistake that's happening with some of the most influential projects in our culture, and ultimately in our economy.

Digital collectivism might seem participatory and democratic, but it's painting us into a corner from which we will have to concoct an awkward escape. It is strange to me that this isn't more obvious to many of my Silicon Valley colleagues.

The U.S. made a fateful decision in the late 20th century to routinely cede manufacturing and other physical-world labors to foreign competitors so that we could focus more on lucrative, comfortable intellectual activities like design, entertainment and the creation of other types of intellectual property. That formulation still works for certain products that remain within a system of proprietary control, like Apple's iPhone.

Unfortunately, we were also making another decision at the same time: that the very idea of intellectual property impedes information flow and sharing. Over the last decade, many of us cheered as a lot of software, music and news became free, but we were shooting ourselves in the collective feet.

On the one hand we want to avoid physical work and instead benefit from intellectual property. On the other hand, we're undermining intellectual property so that information can roam around for nothing, or more precisely as bait for advertisements. That's a formula that leaves no way for our nation to earn a living in the long term.

The "open" paradigm rests on the assumption that the way to get ahead is to give away your brain's work—your music, writing, computer code and so on—and earn kudos instead of money. You are then supposedly compensated because your occasional dollop of online recognition will help you get some kind of less cerebral work that can earn money. For instance, maybe you can sell custom branded T-shirts.

We're well over a decade into this utopia of demonetized sharing and almost everyone who does the kind of work that has been collectivized online is getting poorer. There are only a tiny handful of writers or musicians who actually make a living in the new utopia, for instance. Almost everyone else is becoming more like a peasant every day.

And it's going to get worse. Before too long—in 10 years, I'd guess—cheap home robots will be able to make custom T-shirts from free designs off the Internet. When that day comes, then a T-shirt's design will be no more valuable than recorded music is today.

The T-shirt-making robot is only one example of a general principle. As technology gets better and better, more and more jobs will essentially become threatened, just like today's jobs for reporters or recording musicians.

One of the bright spots in the employment picture for the U.S. is in health-care jobs, such as those related to elder care. But the Japanese are developing health-care robots to anticipate the needs of their aging population. When those robots get good and cheap, which they probably will within a couple of decades, a lot of health-care jobs in the U.S. will either go away or become much less well-paid.

This isn't how things should be. Improving technology is supposed to create ever more comfortable and cerebral jobs for people. Some kind of intellectual-property system is the only way Americans, or people anywhere, can earn money in the long, long term, as technology gets very good.

The owners of big computer resources on the Internet, like Google, will be able to make money from the open approach for a long time, of course, by routing advertisements, but middle-class people will be increasingly asked to accept a diet of mere kudos. No one should feel insulated from this trend. Poverty has a way of trickling up. Once everyone is aggregated, what will be left to be advertised?

All too often, a youthful perspective falls prey to the fallacy of collectivism. I fell prey to it myself. In my early 20s, I lived in collective households and belonged to food co-ops, as did most of my friends. I recall these things now as harmless diversions, more of a way of extending the experience of childhood than an attempt at revolution.

Youthful fascination with collectivism is in part simply a way to address perceived "unfairness." If everyone shares, then a young person arriving on the scene fresh will not have less than an older person who has been around for a while.

This is all harmless enough, but the pattern can be manipulated in dangerous ways. I don't want our young people aggregated, even by a benevolent social-networking site. I want them to develop as fierce individuals, and to earn their living doing exactly that. When they work together, I hope they'll do so in competitive, genuinely distinct teams so that they can get honest feedback and create big-time innovations that earn royalties, instead of spending all their time on crowd-pleasing gambits to seek kudos. This is not just so that they and their children will thrive, but so that they won't become a mob, which, as history has shown us again and again, is a vulnerability of human nature.

Jaron Lanier is known as the father of virtual-reality technology and has worked on the interface between computer science and medicine, physics, and neuroscience. This essay is adapted from his book "You Are Not a Gadget," due out next week from Knopf.

from the Wall Street Journal, 2010-Jan-31:

Carlos the Brand
The Jackal has a brand to protect.

Life for terrorists is improving in the U.S., with the Detroit bomber enjoying his right to remain silent and negotiate a plea bargain, while Khalid Sheikh Mohammed and his Guantanamo mates head for a civilian trial. At least we can say America hasn't gone as far as France to accommodate enemy combatants.

On Thursday, a court outside Paris will rule on a claim lodged by one Ilich Ramírez Sánchez. Better known as Carlos the Jackal, the 60-year-old Venezuelan was the Osama bin Laden of the 1970s and 1980s. On behalf of Palestinian and various Marxist-Leninist causes, Ramírez organized and carried out a series of notable terrorist attacks. The French finally nabbed him from a Sudanese hospital in 1994 and jailed him for life for the murder of two French policemen and a Lebanese informant. Carlos the Jackal now spends his time invoking his rights under the French constitution.

In the case before the court in Nanterre, he and long-time lawyer Isabelle Coutant-Peyre, who also married him, are suing a French production company for the right to review and "correct and edit" a forthcoming made-for-TV film about him entitled "Carlos." Ms. Coutant-Peyre alleges the filmmakers are out to "demolish Carlos." Her client wants to protect the intellectual property rights to his name and "biographical image." The court has taken this case seriously enough to hear it.

A lawyer for the film company, Film en Stock, asked the Libération daily in Paris, "How could we possibly tarnish the image of Carlos when he himself claims to have killed some 2,000 people?" There's also the small matter of a right to free press and speech that should, one would assume, shield the filmmakers from a litigious terrorist.

Still, the compatriot who Venezuela's Hugo Chávez last year hailed as "a revolutionary soldier" may be on to something. Carlos has an experienced nose for the zeitgeist. How long can it be before some American lawyer tries to safeguard KSM's "biographical image"?

from the Wall Street Journal, 2010-Jan-28, by Eric Felten:

On Thin Ice: Two Russians Skate Off the Reservation
A loin-clothed homage to Aboriginal peoples backfires.

Russian figure-skaters Oksana Domnina and Maxim Shabalin, who have been favorites to win gold medals at next month's Vancouver Olympics, thought they had found an admirably multicultural theme for their ice-dancing routine—an homage to aboriginal peoples. In it, they leap and dance and spin to a hip-hoppy track of sampled didgeridoo sounds while wearing loincloths over bodysuits painted with pseudotribal designs.

They have now learned the hard way that the politics of multiculturalism are tricky: The pair were denounced last week by Australian Aboriginal activists who don't like outsiders dabbling in their traditions. Bev Manton, chairwoman of the New South Wales Aboriginal Land Council, declared the skaters had co-opted "a foreign culture, and used [it] inappropriately."

Who can argue with that? After all, there is rarely anything indisputably appropriate in figure skating, an endeavor famous for mawkish overemoting and sequined unitards. The Russians' aboriginal fantasy is hardly the first or most egregious lapse of taste on ice.

But the Aborigines' complaint goes far beyond the assertion that the skaters' routine is corny or crass. The more serious accusation here is that the Russians are infringing on the cultural property of Aborigines. "We see it as stealing Aboriginal culture," said Sol Bellear, a member of the Aboriginal Land Council. "It is yet another example of the Aboriginal people of Australia being exploited." Ms. Manton said the performance is "not acceptable to Aboriginal people" because it is "offensive."

***

James O. Young, professor of philosophy at the University of Victoria in British Columbia and author of the book "Cultural Appropriation and the Arts," doesn't see it that way. I asked him about the kerfuffle and he said that for Aborigines to take offense at such a hapless effort at cross-cultural kitsch is rather like a Parisian boulanger getting in a huff when an American tries to ask for a croissant in fractured French. That is, it's unreasonable.

The Aboriginal gripe is a variation on an argument that has nagged jazz and popular music in America for most of a century. We've been told not to celebrate the endless cross-pollination of musical cultures, not to see it as a welcome force for integration in the old melting pot, but to view it instead as theft. For example, the "blues is black man's music, and whites diminish it at best or steal it at worst," wrote jazz critic and Rolling Stone magazine editor Ralph J. Gleason in 1968. "In any case, they have no moral right to use it."

Gleason was unintentionally belittling the blues. To say that a style, an idiom, or a cultural aesthetic is the province of a race or ethnicity is to give it a status beneath that of art. Would we be elevating Beethoven's odes if we asserted that orchestral romanticism is the sole province of Teutons? When he was a young man, jazz saxophonist Phil Woods expressed to bebop trumpeter Dizzy Gillespie his worry that, as a white man emulating Charlie "Bird" Parker, he was misappropriating an idiom to which he had no claim. "You can't steal a gift," Gillespie replied. "Bird gave the world his music, and if you can hear it you can have it."

Hipster-band-of-the-moment Vampire Weekend liberally borrows from the staccato arpeggios of African pop, much as Paul Simon did with his "Graceland" album. The preppy Columbia University grads who make up the group have created something new and different out of the mash-up of cultures, a genre that, with postmodern irony, they call "Upper West Side Soweto." We can furrow our brows and harrumph that they have inappropriately co-opted a foreign idiom, or we can marvel at the endlessly jumbled global culture that mixes Locust Valley garb with township grooves.

***

T.S. Eliot endorsed the idea of artistic theft, with the caveat that "bad poets deface what they take, and good poets make it into something better, or at least something different." I don't think we need to demand that cultural interlopers make something "better" than the sources that inspire them. That would be the real insult—borrowing on the premise that one will be improving upon the original. Instead, it should be enough that a poem or a song or a dance or a play makes for something different—even if it is different in the excruciating way that the joke auditions on "American Idol" give us different takes on famous pop songs. Goodness knows the Russian Olympic skaters have done at least that much (unless there is a thriving tradition of Aboriginal ice ballet in Australia that I've somehow missed).

Aboriginal activists met earlier this week to weigh their options and decided that the Russian ice-dancing routine "while offensive to Aboriginal people, is not illegal." That's a relief—though we can expect the Russian pair to be treated as cultural criminals at the Olympics nonetheless. Which is a shame, because even as we celebrate the great multiplicity and variety of cultures in the world, there is a case to be made that we all share in them.

"My people," writes Princeton philosophy professor Kwame Anthony Appiah, "made the Great Wall of China, the Chrysler Building, the Sistine Chapel: these things were made by creatures like me, through the exercise of skill and imagination." By "my people" Mr. Appiah means that biggest and most catholic of tribes, "human beings."

from the Wall Street Journal, 2010-Jan-13, by Rebecca MacKinnon:

Google Gets On the Right Side of History
No more censored searches to please the Chinese government.

One night in the mid-1990s when I was working as a journalist in Beijing, I went out to dinner with some Chinese friends. I had just finished reading a book called "The File" by the British historian Timothy Garton Ash. It's about what happened in East Berlin after the Berlin Wall came down and everybody could see the files the Stasi had been keeping all those years. People discovered who had been ratting on whom—in some cases neighbors and co-workers, but also lovers, spouses and even children. After I described the book to my Chinese dinner companions—a hip and artsy intellectual crowd—one friend declared: "Some day the same thing will happen in China, then I'll know who my real friends are."

The table went silent.

China today is very different from Soviet-era Eastern Europe. It's unlikely that its current political system—or its system for blocking foreign Web sites known widely as the "great firewall"—will crumble like the Berlin Wall any time soon. Both are supported and enabled by the current geopolitical, commercial and investment climate in ways that Soviet-era Eastern Europe and the Iron Curtain never were.

I do believe, however, that in my lifetime the Chinese people may learn more about some of the conversations that have taken place over the past decade between Internet company executives and Chinese authorities. When that happens, they will know who sold them out and who was most eager to help the Chinese Communist Party in building a blinkered cocoon of disinformation around their lives—and in some cases deaths.

This censored environment makes it easier for the Chinese government to lie to its people, steal from them, turn a blind eye when they are poisoned with tainted foodstuffs, and cover up their children's deaths due to substandard building codes. It is a constant struggle, and sometimes literally a crime, for people to share information about such matters or to use the Internet to mobilize against corruption and malfeasance.

That is the information environment that China's business elites, many of whom have gotten rich running Internet and telecommunications companies, are responsible for helping to build and maintain. For now they are national heroes, having made great (and lucrative) efforts on behalf of China's economic growth and global competitiveness, making China a force to be reckoned with on the global stage. But if history takes some unexpected turns—and that's the one thing you can count on Chinese history doing—it won't always be on their side.

By announcing it will no longer censor its Chinese search engine and will reconsider its presence in China, Google has taken a bold step onto the right side of history.

Four years ago when Google entered the Chinese market and launched Google.cn, Chinese bloggers called it the "neutered Google." At the time, Google executives said the decision to bow to the Chinese government's censorship demands had been made after heated internal debates. They said they had weighed the positives and negatives and concluded Chinese Internet users were better off with the neutered Google than with no Google. They drew a red line under search and said they would not bring any other Google products containing users' personal information—including email and blogging—into China. They held to that line.

Over the past four years I tested Google.cn from time to time and compared its search results with the Chinese market leader, Baidu. I found that Google.cn tended to censor search results somewhat less than Baidu. This supported Google's argument that it at least gave Chinese Internet users more information than the domestic alternatives.

Google executives also pointed out that a notice appeared at the bottom of every page of censored results on Google.cn, informing users that some information was being hidden from them at the behest of Chinese authorities. In this way, the logic went, they were at least being honest with the Chinese public about the fact that Google was helping their government put blinkers on them.

The company's effort to walk a fine line between Chinese regulators and free speech critics ended up being unsustainable. Anticensorship activists still viewed its compromise as contributing to the spread of censorship around the world. On the other hand, the compromise was also unacceptable to Chinese authorities, who were unhappy that Google wasn't censoring as heavily as Baidu. Last year Google came under a series of attacks in the state-run media for failing to censor porn adequately when users—horror of horrors—typed smutty phrases into the search box.

As Google considers exactly what it will do next now that it has refused to censor, some Chinese users are expressing support and sending flowers, others are upset, and others are thumbing their noses, good riddance. Competitors are gloating. Google is in for a rough few months ahead. In the longer run, history will reveal to the Chinese people who their real friends have been.

Ms. MacKinnon is a fellow with the Open Society Institute. She is writing a book about China and the Internet.

from the Wall Street Journal, 2010-Jan-13, p.A1, by Jessica E. Vascellaro, Jason Dean and Siobhan Gorman with Andrew Browne and Ben Worthen contributing:

Google Warns of China Exit Over Hacking
Cyber Attack Targeted as Many as 34 Firms, Email of Human-Rights Activists; Investigators Probe Link to Chinese Government

Google Inc. said it may leave China after an investigation found the company had been hit with major cyber attacks it believes originated from the country -- a move that would amount to a high-profile rebuke of China by a major U.S. firm.

The attack targeted as many as 34 different companies or other entities, according to two people familiar with the investigation, which has been under way for weeks.

Investigators are probing whether the attack is linked to the Chinese government or intelligence services, one person familiar with the investigation said. The attack has piqued the interest of U.S. intelligence agencies, including the National Security Agency, this person added.

Google said it suffered a "highly sophisticated and targeted attack on our corporate infrastructure originating from China" in mid-December, which it said resulted in "the theft of intellectual property." The company said it found evidence to suggest that a primary goal of the attackers was accessing the Gmail accounts of Chinese human-rights activists.

A company spokesman declined to identify the other companies affected, saying only that it was in the process of notifying the companies and working with U.S. authorities. A spokeswoman for Adobe Systems Inc. said Tuesday that the software company experienced an attack that appeared to be related to the attacks Google described.

For Google to withdraw from China would be an extremely rare repudiation by a Western company of what is almost universally seen in business circles as one of the world's most important markets. The country has 338 million Internet users as of June, more than any other country. Even the public suggestion that it is considering such a move is likely to infuriate Chinese authorities. Google's statement could complicate matters for other tech companies sensitive to being seen as accomplices of the Chinese government.

Google said it will be talking with Beijing in coming weeks about how it might operate in China without censorship, long a thorn in the side of Western Web companies operating there. "We have decided we are no longer willing to continue censoring our results" on Google's China Web site, Google.cn, the company's chief legal officer, David Drummond, said in the post.

"We recognize that this may well mean having to shut down Google.cn, and potentially our offices in China," he wrote.

Chinese officials couldn't immediately be reached for comment. The government in the past has repeatedly defended its handling of the Internet, and has rejected accusations that China is responsible for cyber attacks against foreign entities.

Google's statement was hotly debated within the senior ranks of the company, according to two people familiar with the matter. Google Chief Executive Eric Schmidt was concerned about the potential backlash, but operating in China has been a concern of Google co-founder Sergey Brin in particular, these people said.

Google launched its Chinese-language google.cn search engine in 2006, agreeing to censor some of its results, a move that drew fire from human-rights groups and Web-industry officials who are critical of any restrictions on the Internet. Tensions between Google and the Chinese government began soon, escalating in 2009 when China reprimanded Google and accused it of having pornography on its sites. Google's video-sharing site, YouTube, has also been largely inaccessible within China since around March.

Google's move comes as it has been in negotiations with Chinese officials over various Google services in China. Last year, to placate Chinese officials, Google agreed to remove some links on its China homepage.

The company said only two Gmail accounts appeared to have been accessed. A spokesman said none of Google's services experienced significant disruptions.

"These attacks and the surveillance they have uncovered -- combined with the attempts over the past year to further limit free speech on the Web -- have led us to conclude that we should review the feasibility of our business operations in China," Mr. Drummond wrote.

If Google decides to stay, it runs the risk that its threat to withdraw will worsen its already rocky relationship with Chinese authorities, who wield ultimate power over all Internet companies doing business there and could, ultimately, force Google's departure anyway. Google's business in China goes beyond its search service -- Chinese wireless carriers, for example, have been planning to sell mobile phones using the U.S. company's Android operating system.

Human-rights advocates praised Google. The company's decision "spotlights the importance of freedom of expression and privacy online," Human Rights Watch said in a statement.

The attacks appear to have been launched from at least six Internet addresses located in Taiwan, which is a common strategy used by Chinese hackers to mask their origin, said James Mulvenon, director of the Center for Intelligence Research and Analysis at Defense Group Inc. a national-security firm.

They also hijacked the Internet address of a San Antonio-based firm, Rackspace, which is one of the largest Internet-hosting companies in the U.S. They siphoned off the stolen data from Google and other companies to the San Antonio site before sending it overseas, Mr. Mulvenon said. A Rackspace official said, "A server at Rackspace was compromised, disabled, and we actively assisted in the investigation of the cyber attack, fully cooperating with all affected parties."

The attackers used at least seven different types of attack code in their effort to identify and steal data from Google, said Rafal Rohozinski, a principal at the SecDev Group, a Canadian security consulting firm that discovered a major Chinese spying operation on the Dalai Lama last year.

The attack on Google is similar to an earlier one that affected computers belonging to the office of the Dalai Lama and many foreign embassies, people familiar with the episode say. In that incident, dubbed GhostNet by the researchers who detected it, victims were sent emails that appeared to come from someone they knew, but were really sent by a hacker. When the recipient opened an attached document, a piece of computer code installed itself on the victim's computer allowing the hacker to take control of the computer.

In a statement, Secretary of State Hillary Clinton said, "We have been briefed by Google on these allegations, which raise very serious concerns and questions. We look to the Chinese government for an explanation. The ability to operate with confidence in cyber space is critical in a modern society and economy." An administration official said there were no reports of federal systems being affected by the attack.

Google's revenue in China is relatively small, with analysts estimating only a few percentage points of Google's nearly $22 billion in 2008 revenue came from the nation. But the country's massive number of Internet users has made it strategically important for Google, as it tried to extend its dominance in search and search advertising around the globe.

Search market in China reached revenue of two billion yuan ($293 million) in the third quarter of 2009, 28% higher than a year earlier. As of that quarter, Google had 31.3% market share, compared with Baidu's 63.9%. Their competitors now all have less than 1% market share, according to Analysys International.

Google suffered another setback in September when Kai-Fu Lee, the high-profile former Microsoft Corp. executive it had hired in 2005 to lead its China operation, left for his own Chinese Internet-investment venture.

Google may go the way of other Internet companies, such as eBay Inc. and Yahoo Inc., which abandoned expansion plans in China in recent years -- although none of them in the publicly critical way that Google is suggesting. Both transferred their China businesses to local players in exchange for equity stakes.

Foreign Internet companies have all struggled in China both against tough commercial competition and also government regulation and censorship. The common assumption, however, is that no matter how onerous the limitations and challenges faced by foreign companies in China, the market is too big to walk away from.

Google would be the most high-profile Western company in recent years to draw a line under the kind of compromises it is prepared to make. A number of foreign companies exited China after the Chinese army crushed protesters around Tiananmen Square in 1989. But they mostly came back in the following years.

from the Guardian of London, 2010-Jan-24, by Tania Branigan in Beijing and agencies:

China accuses US of online warfare in Iran
Iran election unrest an example of US 'naked political scheming' behind free speech facade, says Communist party editorial

The United States used "online warfare" to stir up unrest in Iran after last year's elections, the Chinese Communist party newspaper claimed today, hitting back at Hillary Clinton's speech last week about internet freedom.

An editorial in the People's Daily accused the US of launching a "hacker brigade" and said it had used social media such as Twitter to spread rumours and create trouble.

"Behind what America calls free speech is naked political scheming. How did the unrest after the Iranian election come about?" said the editorial, signed by Wang Xiaoyang. "It was because online warfare launched by America, via YouTube video and Twitter microblogging, spread rumours, created splits, stirred up and sowed discord between the followers of conservative reformist factions."

Washington said at the time of the unrest that it had asked Twitter, which was embraced by Iranian anti-government protesters, to remain open. Several social media sites, including YouTube, Facebook and Twitter, have been blocked in China in the last year.

The editorial asked rhetorically whether obscenity or activities promoting terrorism would be allowed on the net in the US. "We're afraid that in the eyes of American politicians, only information controlled by America is free information, only news acknowledged by America is free news, only speech approved by America is free speech, and only information flow that suits American interests is free information flow," it added.

It attacked the decision to cut off of Microsoft's instant messaging services to nations covered by US sanctions, including Cuba, Iran, Syria, Sudan and North Korea, as violating America's stated desire for free information flow. Washington later said that such services fostered democracy and encouraged their restoration.

China initially gave a low-key response to Google's announcement that it was no longer willing to censor google.cn. The internet giant said it had reached its decision following a Chinese-originated cyber attack targeting the email accounts of human rights activists, and in light of increasing online censorship.

Clinton's direct challenge to China, in a speech that had echoes of the cold war with its references to the Berlin wall and an "information curtain", led Beijing to warn that US criticism could damage bilateral relations. Clinton called on China to hold a full and open investigation into the December attack on Google.

In an interview carried by several Chinese newspapers today, Zhou Yonglin, deputy operations director of the national computer network emergency response technical team, said: "Everyone with technical knowledge of computers knows that just because a hacker used an IP address in China, the attack was not necessarily launched by a Chinese hacker."

US diplomats sought to reach out to the Chinese public by briefing bloggers in China on Friday. They held a similar meeting during Barack Obama's visit in November.

from Reuters, 2010-Jan-26, by Ben Blanchard with additional reporting by Chris Buckley and editing by Jeremy Laurence:

Chinese media scorn U.S. for "politicizing" Google affair

BEIJING - Chinese state media stepped up their war of words with the United States over Internet control on Tuesday, with a top newspaper claiming a U.S. conspiracy and saying China can live without Google.

Two weeks ago the world's biggest search engine provider, Google Inc., threatened to shut its Chinese Google.cn portal and to pull back from China, citing problems of censorship and sophisticated hacking from within the country.

The Obama administration has backed Google's criticisms, and on Thursday Secretary of State Hillary Clinton urged China to drop Internet censorship and investigate the claims of hacking, which some experts have said could have been organized by Beijing.

After first fending off the criticisms from Google and Washington with tight-lipped restraint, Chinese officials and state-run media have launched a torrent of scorn that has the hallmarks of a concerted counter-campaign.

The country's top newspaper warned that the Internet row was hurting broader bilateral relations -- which have also been strained by trade disputes, U.S. arms sales to Taiwan, and the possibility that President Barack Obama will meet the Dalai Lama, who Beijing calls a separatist.

"These statements and actions disregard reality and harm China's national image, upsetting the healthy and stable development of Sino-U.S. ties," the People's Daily, the ruling Communist Party's chief mouthpiece, said in a commentary on the Internet dispute.

"It is not difficult to see the shadow of the U.S. government behind the politicization of the Google affair."

Washington had exploited Google's claims "in an effort to restrict China's right to protect its national security and interests on the Internet."

Google has said it wants talks with the Chinese government about solving its complaints.

But the People's Daily added a note of uncertainty about Google's hopes. "Perhaps Google has already realized that China can do without Google, but without China, Google does not have a future," it said.

ORCHESTRATED COUNTER-ATTACK

The outpouring of criticism, echoed in other prominent Chinese newspapers, suggests Clinton's speech riled Beijing's wary leaders, who have long said the West is bent on undermining Communist Party power.

China's propaganda authorities regularly unleash the domestic press, which all comes under state control, to defend policies at tense times, especially when Beijing comes under pressure from abroad.

"The media criticism is certainly orchestrated to send a message from the Chinese government, but it's also trying to shift the target from Google to the U.S. government," said Li Datong, a former senior editor with the China Youth Daily who was shunted aside after complaining of censorship.

"That doesn't mean there's no room for compromise, but in public the Chinese government never likes being seen as going soft," Li told Reuters.

China defends its Internet controls as necessary to protect minors, though many other sensitive issues are also prevented from appearing, such as references to 1989's bloody crackdown on pro-democracy demonstrations around Tiananmen Square.

China has blocked sites like Facebook, Twitter and Google's YouTube following ethnic riots in restive Xinjiang and Tibet.

Beijing has denied the hacking accusations, saying instead that it is a major victim of hackers.

from USA Today, 2009-Oct-19, by Jonathan Turley:

Just say no to blasphemy laws

Perhaps in an effort to rehabilitate the United States' image in the Muslim world, the Obama administration has joined a U.N. effort to restrict religious speech. This country should never sacrifice freedom of expression on the altar of religion.

Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion. This growing movement has reached the United Nations, where religiously conservative countries received a boost in their campaign to pass an international blasphemy law. It came from the most unlikely of places: the United States.

While attracting surprisingly little attention, the Obama administration supported the effort of largely Muslim nations in the U.N. Human Rights Council to recognize exceptions to free speech for any "negative racial and religious stereotyping." The exception was made as part of a resolution supporting free speech that passed this month, but it is the exception, not the rule that worries civil libertarians. Though the resolution was passed unanimously, European and developing countries made it clear that they remain at odds on the issue of protecting religions from criticism. It is viewed as a transparent bid to appeal to the "Muslim street" and our Arab allies, with the administration seeking greater coexistence through the curtailment of objectionable speech. Though it has no direct enforcement (and is weaker than earlier versions), it is still viewed as a victory for those who sought to juxtapose and balance the rights of speech and religion.

A 'misused' freedom?

In the resolution, the administration aligned itself with Egypt, which has long been criticized for prosecuting artists, activists and journalists for insulting Islam. For example, Egypt recently banned a journal that published respected poet Helmi Salem merely because one of his poems compared God to a villager who feeds ducks and milks cows. The Egyptian ambassador to the U.N., Hisham Badr, wasted no time in heralding the new consensus with the U.S. that "freedom of expression …has been sometimes misused" and showing that the "true nature of this right" must yield government limitations. …

His U.S. counterpart, Douglas Griffiths, heralded "this joint project with Egypt" and supported the resolution to achieve "tolerance and the dignity of all human beings." While not expressly endorsing blasphemy prosecutions, the administration departed from other Western allies in supporting efforts to balance free speech against the protecting of religious groups.

Thinly disguised blasphemy laws are often defended as necessary to protect the ideals of tolerance and pluralism. They ignore the fact that the laws achieve tolerance through the ultimate act of intolerance: criminalizing the ability of some individuals to denounce sacred or sensitive values. We do not need free speech to protect popular thoughts or popular people. It is designed to protect those who challenge the majority and its institutions. Criticism of religion is the very measure of the guarantee of free speech — the literal sacred institution of society.

Blasphemy prosecutions in the West appear to have increased after the riots by Muslims following the publication of cartoons disrespecting prophet Mohammed in Denmark in 2005. Rioters killed Christians, burned churches and called for the execution of the cartoonists. While Western countries publicly defended free speech, some quietly moved to deter those who'd cause further controversies through unpopular speech.

In Britain, it is a crime to "abuse" or "threaten" a religion under the Racial and Religious Hatred Act 2006. A 15-year-old boy was charged last year for holding up a sign outside a Scientology building declaring, "Scientology is not a religion, it is a dangerous cult. "In France, famed actress Brigitte Bardot was convicted for saying in 2006 that Muslims were ruining France in a letter to then-Interior Minister (and now President) Nicolas Sarkozy. This year, Ireland joined this self-destructive trend with a blasphemy law that calls for the prosecution of anyone who writes or utters views deemed "grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage."

'Blasphemy' incidents

Consider just a few such Western "blasphemy" cases in the past two years:

• In Holland, Dutch prosecutors arrested cartoonist Gregorius Nekschot for insulting Christians and Muslims with cartoons, including one that caricatured a Christian fundamentalist and a Muslim fundamentalist as zombies who want to marry and attend gay rallies.

• In Canada, the Alberta human rights commission punished the Rev. Stephen Boission and the Concerned Christian Coalition for anti-gay speech, not only awarding damages but also censuring future speech that the commission deems inappropriate.

• In Italy, comedian Sabina Guzzanti was put under criminal investigation for joking at a rally that "in 20 years, the pope will be where he ought to be — in hell, tormented by great big poofter (gay) devils, and very active ones."

• In London, an aide to British Foreign Secretary David Miliband was arrested for "inciting religious hatred" at his gym by shouting obscenities about Jews while watching news reports of Israel's bombardment of Gaza.Also, Dutch politician Geert Wilders was barred from entering Britain as a "threat to public policy, public security or public health" because he made a movie describing the Quran as a "fascist" book and Islam as a violent religion.

• In Poland, Catholic magazine Gosc Niedzielny was fined $11,000 for inciting "contempt, hostility and malice"by comparing the abortion of a woman to the medical experiments at Auschwitz.

The "blasphemy" cases include the prosecution of writers for calling Mohammed a "pedophile" because of his marriage to 6-year-old Aisha (which was consummated when she was 9). A far-right legislator in Austria, a publisher in India and a city councilman in Finland have been prosecuted for repeating this view of the historical record.

In the flipside of the cartoon controversy, Dutch prosecutors this year have brought charges against the Arab European League for a cartoon questioning the Holocaust.

What's next?

Private companies and institutions are following suit in what could be seen as responding to the Egyptian-U.S. call for greater "responsibility" in controlling speech. For example, in an act of unprecedented cowardice and self-censorship, Yale University Press published The Cartoons That Shook the World, a book by Jytte Klausen on the original Mohammed cartoons. Yale, however, (over Klausen's objections) cut the actual pictures of the cartoons. It was akin to publishing a book on the Sistine Chapel while barring any images of the paintings.

The public and private curtailment on religious criticism threatens religious and secular speakers alike. However, the fear is that, when speech becomes sacrilegious, only the religious will have true free speech. It is a danger that has become all the more real after the decision of the Obama administration to join in the effort to craft a new faith-based speech standard. It is now up to Congress and the public to be heard before the world leaves free speech with little more than a hope and a prayer.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY's board of contributors.

from CNN, 2010-Jan-2:

Irish atheists use Bjork, Mark Twain to challenge blasphemy law

An Irish atheist group has published a series of quotations on religion in an attempt to challenge a blasphemy law that went into effect on New Year's Day.

The 25 "blasphemous" quotations include the words of Jesus, Mohammed, Mark Twain, Salman Rushdie and Bjork.

Atheist Ireland published the list on its Web site Friday. It says it aims to challenge the law, which makes blasphemy a crime punishable by a €25,000-($35,800) fine.

"Despite these quotes being abusive and insulting in relation to matters held sacred by various religions, we unreservedly support the right of these people to have published or uttered them," the group said on the site.

"We unreservedly support the right of any Irish citizen to make comparable statements about matters held sacred by any religion without fear of being criminalized, and without having to prove to a court that a reasonable person would find any particular value in the statement."

Lawmakers in staunchly Catholic Ireland passed the law in July, but it came into force January 1.

A person breaks the law by saying or publishing anything "grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion."

Those found guilty of breaking the blasphemy law may try to defend themselves by proving that a reasonable person would find literary, artistic, political, scientific or academic value in what they said or published, the law says.

Atheist Ireland called the law "silly and dangerous," because it provides an incentive for religious outrage.

"We believe in the golden rule: that we have a right to be treated justly, and that we have a responsibility to treat other people justly," the group said.

"Blasphemy laws are unjust: They silence people in order to protect ideas. In a civilized society, people have a right to to express and to hear ideas about religion even if other people find those ideas to be outrageous."

The group urged the Irish government to repeal the law. It also asked lawmakers for a referendum on removing all references to God from the Irish constitution.

from the Wall Street Journal, 2009-Dec-20, by Rachel Ehrenfeld:

The British Threat to American Free Speech
The U.S. Congress is considering legislation to protect American writers from the threat of suppressive libel lawsuits in the U.K.

The recent movement to change British libel laws to allow for greater freedom of expression has its origins in New York City and New York State.

I am a New York-based scholar specializing in research on terror financing and economic warfare. In my book, "Funding Evil: How Terrorism is Financed—and How To Stop It," I alleged that Saudi billionaire Khalid bin Mahfouz funded al Qaeda, Hamas and other terrorists organizations through his charitable fronts.

In 2005, Mr. Mahfouz sued me for libel in London, where my book had never been published or marketed. He chose London due to its antiquated libel laws, which are plaintiff-friendly. As recently noted by New York Times correspondent Sara Lyall, London is known as the "Libel Mecca" of the world, and Mr. Mahfouz was the most notorious abuser of the British system. A one-man wrecking crew of Americans' free speech rights, Mr. Mahfouz exploited British libel laws and courts, threatening or suing more than 40 writers and publishers, including many Americans. These cases were never tried on the merits. Mr. Mahfouz's litigiousness and deep pockets helped to silence and intimidate Americans and others who tried to expose his terrorist connections.

Except for me.

I refused to acknowledge the jurisdiction of the British courts, asserting my rights as a U.S. citizen. Unimpressed, the British judge rendered a default judgment in favor of Mr. Mahfouz. I was ordered to pay the Saudi more than $225,000, publish apologies in major international newspapers, and destroy all copies of my book internationally.

I sued in New York to prevent enforcement of the British judgment in the United States, petitioning the court to declare that the foreign judgment violated my First Amendment rights and was therefore unenforceable.

When the New York courts ruled that they could not assert jurisdiction over Mr. Mahfouz, New York legislators, led by Assemblyman Rory Lancman (a Democrat) and Dean Skelos (a Republican), introduced the Libel Terrorism Protection Act (aka "Rachel's Law"). The law, passed in April 2008, protects New York-based publishers and writers from the enforcement of foreign libel judgments obtained in jurisdictions lacking First Amendment-level protections for freedom of expression. Since then, California, Florida and Illinois have passed similar laws.

But these laws provide only patchwork protection, leaving U.S. writers in 46 other states vulnerable to repressive foreign libel laws. Even the recent movement to change British libel laws will not remove the Sword of Damocles dangling over American academicians, reporters, producers, scientists, and everyone who publishes in print and on the Internet. The threat emanates not only from Britain, but from many other countries as well. It extends to an infinite number of issues, including national security, the travel industry, and science and medicine.

Two recent cases demonstrate the urgent need for the enactment of national protection against suppressive foreign libel suits.

Joseph Sharkey, a New Jersey-based freelance travel journalist, is being sued in Brazil for "insulting the dignity" of the nation in the aftermath of a lethal plane crash that he and few others survived. Mr. Sharkey, who criticized Brazil's incompetent air control on his blog, was sued for defamation, and the Brazilian government is moving to criminalize his case.

In Toronto, Canada, Pennsylvania-based writer Paul L. Williams is being sued for libel because he revealed that al Qaeda members who attended the McMaster's College of Engineering in Hamilton, Ontario, apparently left the school in 2004 with 180 pounds of nuclear waste. Those al Qaeda members have been designated as terrorists by the United States, and each has a $5 million bounty on his head. Yet McMaster's University is suing Mr. Williams for libel. His trial is scheduled for April.

Messrs. Sharkey and Williams and all Americans can be protected from such frivolous foreign libel suits by the Free Speech Protection Act 2009, now pending in Congress. The bill (S. 449), proposed by Senators Arlen Specter and Joseph Lieberman, and co-sponsored by Charles Schumer and Ron Wyden, stems from New York's Rachel's Law, and has sharper teeth. It prevents the enforcement of foreign libel judgments, providing for legal expenses and—possibly—for damages.

As Mr. Sharkey's and Mr. Williams' cases show, The Free Speech Protection Act is urgently needed. Since the bill enjoys wide bipartisan support and requires no budgetary allocations, there is no reason for delay.

Now that the British are considering reforming their libel laws to include protection similar to American laws, the U.S. should continue to lead the world in the protection of freedom of expression.

Ms. Ehrenfeld is the director of the American Center for Democracy and the Economic Warfare Institute and the author of several books on terror financing.

from the Becket Fund for Religious Liberty via the Wall Street Journal, 2009-Dec-11, by Luke Goodrich:

Europe's Religion Delusion
According to the European Court of Human Rights, it is fine for government schools to expel students for wearing religiously mandated clothing.

Three children walk into a European state school—a Muslim, a Sikh, and an atheist. The Muslim and the Sikh are expelled because they wear religious clothing: a headscarf for the Muslim girl, and a turban for the Sikh boy. The atheist is welcomed into the school, but feels uncomfortable because her classroom has a crucifix on the wall. Whose religious freedom has been violated?

If you said the Muslim and the Sikh, you are wrong—at least according to the European Court of Human Rights. The Court recently shocked Europe by striking down an Italian law that put a crucifix on the wall of every state classroom. (Lautsi v. Italy) According to the Court, the presence of a crucifix interfered with students' right to choose their own religion (or nonreligion).

Just four months ago, however, the same Court upheld a French law that forbids children from wearing any religious symbols in French government schools. (J. Singh v. France) Under that law, 14-year-old Jasvir Singh, a devout Sikh, was expelled from school for wearing a keski—a small, cloth under-turban similar to the Jewish yarmulke. He was forced to complete his schooling at a more tolerant Catholic school.

Similarly, just a few years ago, the Court upheld a Turkish university's ban on wearing the Islamic headscarf. (Şahin v. Turkey) Under the ban, Leyla Şahin, a devout Turkish Muslim, was prohibited from taking her exams or enrolling in additional classes; she was forced to move to Austria to finish her medical studies.

In short, according to the European Court of Human Rights—which, by international treaty, has binding authority on human rights issues over all 47 countries in the Council of Europe—it is fine for government schools to expel students for wearing religiously mandated clothing; but if the school instead welcomes all children while displaying a crucifix on the wall, it violates the freedom of religion and belief.

The inconsistency of these decisions is fairly obvious. The more interesting question is, What drives the Court's inconsistency?

The common theme in these cases is that the Court views religious expression as a threat to a free, democratic society. In the Turkish Muslim case, the Court justified the headscarf ban on the ground that it was necessary to protect the public order and the freedom of others. Specifically, allowing a student to wear a headscarf would threaten Turkey's commitment to secularism, make other students uncomfortable, and undermine the principle of gender equality. The same arguments (minus gender equality) justified the French ban on the Sikh keski.

Similarly, in the Italian crucifix case, the Court rejected the notion, advanced by Italy, that the crucifix was a symbol of Italian history, identity, and culture and thus furthered the principles of equality, liberty, and tolerance. Rather, in the Court's view, the presence of a crucifix in a state classroom would be "disturbing" to atheists and religious minorities.

In short, the Court views religious expression not primarily as a social good, but as a threat to democratic society—a source of division, oppression, and conflict. States are fully justified in pursuing an aggressive program of secularism because secularism is, in the Court's words, "the guarantor of democratic values," "the meeting point of liberty and equality," and a bulwark against "external pressure from extremist movements." Similarly, any attempts by the government (such as Italy) to acknowledge the value of religion—as a fundamental aspect of human history, identity, and culture, and a force for equality, liberty, and tolerance—are inherently suspect.

The view of religion as a threat is, of course, common. "New atheists," such as Richard Dawkins, are one manifestation of that view; he dubs the Catholic Church a "disgusting institution," one of the "greatest force[s] for evil in the world." But new atheists are not the only ones. Others cite a history of religious wars, Muslim oppression of women, or Christian skepticism of science as proving the dangers of religion. Backwards, superstitious, and bigoted, a threat to science and progress: religion is a divisive, intolerant force that governments should tame.

There are two possible responses to this view. One is to attack the premise, arguing that, no, religion really is a force for social good. Religion motivated 19th century abolitionists; religion gave us Mother Teresa; religion permeates the Louvre.

But might there be reasons to protect religious freedom even assuming religion is harmful? I offer three. First, a practical one: suppressing religion may exacerbate the very problems it is designed to solve. History shows that religion does not disappear when governments try to suppress it. It goes underground, sometimes erupting more violently than if it were not suppressed.

Second, empowering governments to deem religion harmful, and therefore suppress it, opens the door to tyranny. Freedom of religion and freedom of expression are inextricably linked. If the government can deem religion harmful and suppress it in the name of public order, it can do the same to other ideas. It is no coincidence that many of the 20th century's most tyrannical governments—Stalin's Russia, Mao's China, Pol Pot's Cambodia—made suppression of religion a centerpiece of their administration.

Finally, suppressing religion—even when done in the name of freedom and equality—strikes at the heart of human dignity, which is the foundation of all human rights. Every human being is born with a "religious" impulse—the urge to seek truth, to embrace the truth as one finds it, and to order one's life accordingly. As the Universal Declaration of Human Rights says, "All human beings are born free" and are "endowed with reason and conscience." Absent a serious threat of violence or imminent harm, suppressing religion interferes with people's ability to be fully human, to seek and embrace the truth as they understand it.

A serious commitment to human rights requires governments to respect the religious impulse—even if much of society thinks religious beliefs are wrong, silly, or even harmful. If the European Court of Human Rights cannot get past its fear of religion, its jurisprudence will only become more incoherent, and all human rights more fragile.

Mr. Goodrich is the Deputy National Litigation Director for The Becket Fund for Religious Liberty. The Becket Fund has represented Anglicans, Agnostics, Buddhists, Christians, Hindus, Jews, Muslims, Sikhs, and Zoroastrians, among others, in lawsuits in the United States and around the world.

from the Telegraph of London, 2010-Jan-6:

France 'to criminalise shouting at your wife'
Married couples could be arrested and charged for insulting each other under a new law in France banning 'psychological violence'.

The proposed legislation would punish partners who 'overstep the mark' during verbal spats in the home.

The law would apply to husbands and wives, as well as cohabiting couples.

It is expected to cover every kind of slur from repeated rude remarks about a partner's appearance, false allegations of infidelity and threats of physical violence.

Police are being urged to issue a caution in the first instance of a reported crime, but repeat offenders could face a fine, electronic tagging or jail.

The law, being put forward by the prime minister, Francois Fillon, is aimed at protecting women who are the main victims of abuse in the home.

But men would also have the right to report their wives for verbal abuse.

Mr Fillon said: "It's an important move forward as the creation of this offence will let us tackle the most insidious situations, the ones that leave no physical scars but which still injure the victims inside."

But some experts have called the law a gimmick that will be impossible to enforce, and that the government should not be interfere in non-violent domestic squabbles.

Anne Giraud, a psychologist, said: "Squabbling couples will allege all kinds of things about each other, but they won't necessarily be true.

"The police are likely to be called out more and more when this law comes into force this year, but often it will be a case of one person's word against the other.

"Psychological violence is a very serious matter, but punishing it through the courts is a very different matter altogether."

Pierre Bonnet, a sociologist, added: "Next they will be making rudeness a crime, and the police and courts will be overrun with work."

In 2008, 157 French women and seven French men were killed by their spouses or partners, with hundreds more injured in outbursts of domestic violence. Mr Fillon said the new law had the support of the majority of the government and could come into force within six months.

from the Jerusalem Post, 2009-Dec-4, by Matthew Wagner and Herb Keinon:

Jews back Muslims on minaret ban

Citing religious discrimination, a diverse coalition of Jewish organizations is objecting to Switzerland's ban of minarets on local mosques.

Swiss voters this week approved by a strong majority a referendum outlawing the construction of minarets. The measure, pushed by the right-wing Swiss People's Party (SVP), was supported by 57 percent of the population.

However, Jewish organizations, realizing that a crackdown on Islam could have repercussions for Jews as well, have come to the defense of Muslim worshipers, arguing that the Swiss's move was unjustifiable.

Rabbi Pinchas Dunner, executive director of the Conference of European Rabbis, an Orthodox organization, said "a war on religious freedom cannot defeat Islamic extremists. The best weapon against radical Islam is support for moderate elements in the Muslim community and promoting interfaith dialogue."

In contrast, the Anti-Defamation League tied the move to religious discrimination against Jews.

"This is not the first time a Swiss popular vote has been used to promote religious intolerance," said the ADL in a press release. "A century ago, a Swiss referendum banned Jewish ritual slaughter, in an attempt to drive out its Jewish population."

Noting that the "Swiss government opposed the initiative during the campaign and underscored its commitment to religious freedom in a statement after the vote," the ADL urged Swiss leaders to "be vigilant" in their "defense of religious freedom, even though the SVP is the largest party in the Swiss Parliament and has two of the seven government ministries."

The American Jewish Committee's David Harris echoed these statements. "The referendum result amounts to an attack on the fundamental values of mutual respect," he said.

"While there are certainly understandable concerns in Europe over Islamist extremism, these cannot be legitimately addressed through a blanket assault on Muslim communities and their religious symbols," he added.

Meanwhile, it appeared that Italy might hold an anti-minaret referendum of its own.

Roberto Caldeoli, leader of Italy's right-wing Northern League party, said, "Respect for other religions is important, but we must put the brakes on Muslim propaganda, or else we will end up with an Islamic political party."

French Ambassador Christophe Bigot told The Jerusalem Post that "Muslims, like Catholics, like Jews, should be allowed to worship the way they wish. So why limit construction of mosques?

"What is important in Europe is to work for moderate Islam, for an Islam that is based on education, openness and freedom. The decision of the Swiss state will be to limit the activities of the worshipers.

"I don't think this is very helpful. This promotes the idea that we have a problem with Muslims. We don't have problem with Muslims. We have problem with Islamists, and Islamists and Muslims are two radical differences. And this kind of decision blurs the lines."

Asked if France's ban on the burka was not the same, Bigot answered, "A minaret is part of the mosque, and the Muslims go to the mosque if they are religious. A very small percentage of women wear the burka. And here we are talking about a very, very isolated minority among Muslims."

Asked if the burka ban was an infringement of religious freedom, Bigot replied that "religious freedom has to be combined with the duties of every citizen, and among the duties of every citizen - this is the French perception - there is kind of a minimum agreement of shared values, and among them is that every woman has the same rights as every man.

"And, as we know, the burka most times is imposed on women by men. So just from this perspective we don't think burka is appropriate. This is not a free act, it is an imposed situation placed on them."

Asked if the minaret ban could spread to other European countries, Bigot said that "the issue is different in France. The discussion we have is how do you finance the construction of mosques, and how do you create a national Islam.

"How much are we able to curb the influence of foreign countries on Islam in France. This we think is a valid debate, because we want a French Islam; we don't want an Islam that is importing values form parts of the world completely disconnected from European values."

Hegumen Filaret (Bulekov), a Moscow Patriarchate representative at the Council of Europe, voiced support for Switzerland's ban.

"Accusing Switzerland that it is somehow discriminating against the Islamic minority would be at least lopsided," Filaret told Interfax new service.

"The issue of minarets is not an issue of religious freedom, but it is an issue of political presence of people of a certain faith and ethnic background in a country. Taking into account a rapid rate of Islamization, visible signs of Muslims' presence would have, in particular, a political tint," he said.

from the Jewish Telegraphic Agency, 2010-Jun-1:

New Zealand Bans Kosher Slaughter

Sydney, Australia — New Zealand has banned shechita, the kosher slaughter of animals.

The country's new animal welfare code, which took effect last Friday, mandates that all animals for commercial consumption be stunned prior to slaughter to ensure that they are treated “humanely and in accordance with good practice and scientific knowledge.”

The regulation has shocked the Jewish community.

“This decision by the New Zealand government, one which has a Jewish prime minister, is outrageous,” said Rabbi Moshe Gutnick, acting president of the Organization of Rabbis of Australasia. “We will be doing everything possible to get this decision reversed.”

Gutnick, who travels frequently to New Zealand to oversee shechita, added that “One of the last countries I would have expected to bring in this blatantly discriminatory action would have been New Zealand.”

David Zwartz, the chairman of the Wellington Jewish Council, agreed.

“I am sure there will objections made that this action is an infringement of the right of Jews to observe their religion,” he said.

Agriculture Minister David Carter rejected a recommendation that shechita be exempt from the new code.

The National Animal Welfare Advisory Committee did recommend a dispensation for kosher slaughter in 2001, but the new code does not allow any exemptions.

Among other countries that have banned shechita are Iceland, Norway and Sweden.

from the Telegraph of London, 2009-Nov-29, by Sanjeev Bhaskar:

What did 'Life of Brian' ever do for us?

Monty Python's 1979 film, ‘Life of Brian’, is rightly considered a comedy classic. But, thirty years on, it wouldn’t be made today, argues Sanjeev Bhaskar.

It is 30 years since Monty Python gave us Life of Brian. For those few who are unaware of it (perhaps too young, or recently emerged from a coma), this is the story of an ordinary chap called Brian Cohen who is constantly mistaken for being the long-awaited Messiah. His misfortune is that he is born at the same time as – and in the next stable to – Jesus Christ.

Although the Pythons intended the film to be a satire on blind faith and organised religion, they could not have imagined the extent of the furore it would cause on its release. A campaign condemning the film on the grounds of blasphemy – led by Mary Whitehouse and the Christian values organisation, The Festival of Light – resulted in the film being banned in parts of Britain and the whole of Ireland and Norway. In the US, meanwhile, protesters gathered outside cinemas.

However, 30 years on, that same film is regularly touted as the funniest British comedy of all time, and is now quoted by everyone from politicians (Tony Blair in his 2004 Labour party conference speech referenced the “What have the Romans ever done for us?” scene) to the bishop who told me he is always reciting lines from the film to his friends.

I first tried to watch the film on a pirated VHS at a friend’s house in late 1979; it turned out to be quite a bizarre experience. The picture and sound quality were terrible, and the diabetic friend had a sudden drop in blood sugar and kicked us all out after about 20 minutes. But I’d seen enough to know that I wanted to see the rest. So I borrowed a copy from someone else, and became hooked. I remain utterly hooked to this day.

The origin of Life of Brian was typically Python. After the success of the film Monty Python and the Holy Grail, the group were inundated by questions about their next project. On a promotional trip to Paris, Eric Idle and Terry Gilliam got legless, and Idle said the title for their next film should be “Jesus Christ – Lust for Glory”. This tickled the collective Python funny bone and they started looking into a potential comedy about Christ.

“I was originally against doing a biblical film because I thought the costumes would be so boring,” says Terry Jones. But the group recognised the kernel of something interesting and started researching the subject. However, as Jones points out, they all realised that “Christ was a very good bloke, saying a lot of very good things that we all agreed with. Humour wasn’t in Christ at all.”

The team flew to Barbados for a working holiday. They kept office hours, enjoyed the sun and entertained guests including Keith Moon, Mick Jagger and, er, Des O’Connor, who popped round to play charades. After two weeks, they had a draft screenplay.

Mindful of the potentially incendiary content, they sent the script to a canon at St George’s Chapel at Windsor Castle. He agreed that the script was not blasphemous and said that it was “extracting the maximum comedy out of false religion and religious illusions”. He even suggested adding the now-celebrated scene in which someone is stoned to death for being blasphemous.

EMI was to finance the film, but days before production was due to start, the CEO, Lord Delfont, finally read the script and got cold feet. The script was then rejected by every major movie studio before Idle and producer John Goldstone turned to former Beatle George Harrison, who quickly secured the required $4 million.

With a solid script and the parts cast (Graham Chapman took the title role, after the others talked Cleese out of playing it), production finally began in Tunisia, with Jones as director. It was, by all accounts, a happy shoot, although there were classic Pythonesque moments. Jones recalls directing a scene while dressed as a hermit when Michael Palin said: “Do you realise that you’re stark naked?” Indeed, all Jones had to cover his modesty was a long beard.

It was decided that the controversial final scene in which Brian is crucified should end with a song, for which Idle wrote the now classic Always Look on the Bright Side of Life.

But was the scene fun to shoot? Idle laughs: “Being Python, there were about 30 people being crucified but only three ladders. So, if anyone wanted to relieve himself between takes, you got, ‘Over here quickly, please – I’ve got to get down!’”

The film premiered in America in August 1979 and immediately caused a brouhaha. The Rabbinical Alliance declared the film “foul, disgusting and blasphemous”. The Lutheran Council described it as “profane parody”. Not to be outdone, the Catholic Film Monitoring Office made it a sin even to see the film. Audiences, however, loved it, making Brian the most successful British movie in North America that year.

To counter the mounting protests in Britain, an ingenious advertising campaign was launched featuring the mothers of John Cleese and Terry Gilliam. Muriel Cleese said that if the film didn’t do well, and as her son was on a percentage, she may very well be evicted from her nice retirement home – and that the move might kill her. She won an award for the ad.

Mary Whitehouse failed to prove that the film was blasphemous, particularly since Christ and Brian are distinctly shown as different people. Nevertheless, a number of local councils banned it – including some that didn’t even have a cinema. The result was coach parties being organised in places such as Cornwall (where it was banned) to cinemas in Exeter (where it wasn’t). The Swedish marketed the film as “so funny it was banned in Norway”.

Time can be rather harsh on comedies, but Life of Brian holds up very well after 30 years, and still has the power to shock. However, current tastes and sensitivities make it highly unlikely that a comedy group would even attempt making a film like Brian today.

That said, the film’s view of blind faith seems as apposite as ever, and the closing song has come to represent a sort of British resilience – laughing in the face of adversity. It has been appropriated by football fans, chosen as the final song at funerals, and, movingly, during the Falklands War, the sailors on the damaged HMS Sheffield sang it while awaiting rescue. Like many others, I chose it as one of my Desert Island Discs.

One of my favourite off-screen anecdotes is related by Eric Idle about the cameo appearance by Spike Milligan, who happened to be holidaying in the area where Brian was being shot. After improvising his lines, they realised that Spike had disappeared – still in costume. Much later, on the way back to the hotel, they spotted Spike, who had been pulled over by the police. One of the actors leapt from the bus to exclaim: “It’s all right – he’s with us.” The only problem was the actor was still dressed as a centurion.

* Sanjeev Bhaskar presents He’s Not the Messiah, He’s a Very Naughty Boy on Radio 2 at 10.30pm on Tuesday

from the Associated Press, via the Boston Herald, 2009-Nov-9:

NH guarantees part of loan to Claremont newspaper

CLAREMONT, N.H. — The state of New Hampshire is guaranteeing part of a loan to the new owner of the Claremont Eagle Times newspaper.

Last Wednesday New Hampshire's Executive Council approved without debate the "working capital loan guarantee," which will be administered by the state's Business Finance Authority.

The Valley News of Lebanon says the authority and the state would be liable for $187,500 of a $250,000 loan from the Connecticut River Bank to the paper's owner, Eagle Printing.

The Claremont-based newspaper ceased publishing on July 10, putting 95 people out of work. In September it was bought by Sample News Group of Pennsylvania, which rehired about 25 people.

The new Eagle Times resumed publishing on Oct. 12.

___

Information from: Lebanon Valley News, http://www.vnews.com

from the Wall Street Journal, 2009-Nov-12, by Kimberley A. Strassel:

The EPA's Paranoid Style
Employee arguments against cap-and-trade legislation aren't welcome.

Give the Environmental Protection Agency credit: At least it practices equal opportunity censorship of its employees.

Dr. Alan Carlin, a 37-year agency veteran, was muzzled earlier this spring. Dr. Carlin offered a report poking holes in the science underlying the theory of manmade global warming. His superior, Al McGartland, complained the paper did "not help the legal or policy case" for Team Obama's decision to regulate carbon, told him to "move on to other issues," and forbade him from discussing it outside the office.

Now come Laurie Williams and Allan Zabel, married, and each with more than 20 years tenure at the EPA. They too are dismayed by Democrats' approach to climate, though for different reasons. Dedicated environmentalists, they created a 10-minute YouTube video arguing Congress's convoluted cap-and-trade bill was a "big lie" that is too weak. They instead propose imposing taxes, lots of them, on fossil fuels.

Their views aren't new. Earlier this year the duo sent a letter to Congress making the same case. The video has been out for some time, and the pair got clearance from the EPA before they ran it. Mr. Zabel in the opening notes that "nothing in this video is intended to represent the views of EPA or the Obama Administration." It wasn't until the couple ran a high-profile op-ed in the Washington Post in October that the agency nerved out.

A few days after the op-ed, Ms. Williams and Mr. Zabel were contacted by an EPA ethics official telling them to remove the video or face "disciplinary action." EPA says the clearance was subject to "ethics guidelines," which it claims the couple violated. The agency said the video could go back up if it was altered to remove a picture of an EPA building, and to delete mentions of their EPA employment. In particular, Mr. Zabel was not to say that he'd worked on cap-and-trade issues.

Meet the Obama EPA, and its new suppressing, paranoid style. It was the president who once ripped the Bush administration for silencing scientific critics, and it was EPA Administrator Lisa Jackson who began her tenure promising the agency would operate like a "fishbowl." But that was before EPA realized how vastly unpopular is its plan to usurp Congress and regulate the economy on its own, based on its bizarre finding that CO2 is a danger to health.

Faced with unhappy members of Congress, dissenting employees, an opposition business community, and a backlash on the science, Mrs. Jackson is no longer a fan of open government. The goal now is to rush the agency regulations through as quickly as possible, squashing threatening dissent and deflecting troublesome questions.

Reps. Jim Sensenbrenner and Darrell Issa recently put out a report documenting the EPA's slippery handling of its carbon rule, in which it truncated the process and dismissed contrary views. The Chamber of Commerce has been waiting all year for a response to its request for a hearing into the science underlying the regulation. Not a peep.

Alaska Sen. Lisa Murkowski in September requested a discussion with the agency about carbon regulation and legislation. That discussion has yet to happen. Louisiana Sen. David Vitter recently quizzed Mrs. Jackson about a provision in Congress's climate legislation that would give the president awesome power over energy regulation. Mrs. Jackson said it was a "premature" discussion. "The EPA is playing dirty to get green," says Rep. Sensenbrenner. "The agency can't be allowed to silence its scientists just because what they say threatens to delay its political agenda."

There is a legitimate debate over what right administrations have to clamp down on rebel staffers, yet the EPA's stomp on dissenting views appears unprecedented. Dr. Carlin says he's been treated "relatively well" since the blow-up. Yet he has been forbidden from working on climate or attending climate seminars. When asked how this compares to previous administrations, Mr. Carlin says that years ago he actually believed the science was "correct"—a position that put him at odds with the Bush administration.

Mr. Carlin knew one of his top supervisors back then disagreed with him. "At no time did he say don't work on it, don't express these views which are contrary to mine. And he in effect allowed me to work on climate change for five years. . . . I had no problems until March of this current year."

The problem for the EPA is that the Williams-Zabel dust-up is growing, and underlining the gap between the agency's transparency rhetoric and reality. The very media and activists who ran hit jobs on Mr. Carlin are, of course, now furious the agency is quieting card-carrying environmentalists. Public Employees for Environmental Responsibility, a left-leaning outfit that represents scientists has latched on to the Williams-Zabel video, is lamenting that "EPA is abusing ethics rules to gag two conscientious employees" and promising to assist with any litigation.

If the EPA were so proud of this power grab, it ought to be eager to have a discussion, right?

from the New York Times, 2009-Nov-9, printed 2009-Nov-10, p.A22, by John M. Broder and Leslie Kaufman:

Environmental Agency Warns 2 Staff Lawyers Over Video Criticizing Climate Policy

The Environmental Protection Agency has directed two of its lawyers to makes changes to a YouTube video they posted that is critical of the Obama administration’s climate change policy.

The agency, citing federal policies, told the two lawyers, Laurie Williams and Allan Zabel, who are married and based in San Francisco, that they could mention their E.P.A. affiliation only once; must remove language specifying Mr. Zabel’s expertise and their years of employment with the agency; and must remove an image of the agency’s office in San Francisco.

They have been told that if they do not edit the video to comply with the policy, they could face disciplinary action.

The video, titled “The Huge Mistake,” was produced and posted in September. But the agency did not issue its warning until The Washington Post published a widely cited opinion article by the couple on Oct. 31 that raised concerns, echoing those in the video, about cap-and-trade legislation that the Obama administration supports.

Ms. Williams and Mr. Zabel say cap and trade, in which the government sets a limit on gases that contribute to global warming and then lets companies trade permits to meet it, can be easily gamed by industry and fail to reduce the emissions linked to global warming.

On Thursday, Mr. Zabel said, regional ethics officers with the agency met with him to express concerns about the video and to demand that it be taken down by the next day. Ms. Williams was traveling and did not take part in the meeting.

E.P.A. officials said the agency did not object to the content of the video or the op-ed article or challenge the couple’s right to express their opinions. But they said that government ethics rules required them to state that the opinions were their own and not those of the agency.

“E.P.A. has nearly 18,000 employees, and all of them are free to — and many do — publicly express their views on issues of the day, including issues that are central to E.P.A.’s mission,” Scott Fulton, the agency’s general counsel, said in a statement. However, the video did say the opinions were those of Mr. Williams and Ms. Zabel and were not meant to represent the agency.

In addition, Mr. Williams and Ms. Zabel say they quickly removed the video from their Web site and YouTube. But they said that others had copied the video and put it up on separate YouTube accounts and that it is still easily found.

from the Wall Street Journal's Environmental Capital blog, 2009-Nov-9, by Keith Johnson:

Is the Environmental Protection Agency trying to stifle dissenting views on climate change?

The EPA has told two longtime agency veterans and outspoken critics of the administration's cap-and-trade plan to remove any references to the agency in their critiques and to get approval for any future “outside writing projects.” That includes removing their critical video from You Tube.

Laurie Williams and Allan Zabel, a married couple and EPA lawyers in San Francisco, have been railing against cap-and-trade proposals for a while. Most recently, they had a sharply-worded op-ed in the Washington Post that said current legislation would be ineffective and even counterproductive.

The couple stressed that the views they expressed were their own—not the agency's. But they also stressed that their years of experience with the EPA, and specifically working on other cap-and-trade programs, informed their views.

Now Public Employees for Environmental Responsibility has jumped into the fray. The organization, which groups public-sector employees concerned with environmental questions, has re-posted the banned video and come out in defense of the two attorneys:

“EPA is abusing ethics rules to gag two conscientious employees who have every right to speak out as citizens,” stated PEER Executive Director Jeff Ruch, who has re-posted the original video and its script. “EPA reversed itself because someone in headquarters had a tantrum about their Washington Post essay.”

When Ms. Williams and Mr. Zabel first started publicly criticizing cap-and-trade, in the spring of 2008, the EPA gave them a green light. As we noted at the time, “An EPA spokeswoman confirmed that the agency cleared the couple to write the letter, `provided that it was written in their personal capacity and were not speaking on behalf of the agency.'”

We've asked the EPA for comment today.
UPDATE: This from EPA General Counsel Scott Fulton:

EPA has nearly 18,000 employees and all of them are free to – and many do - publicly express their views on issues of the day, including issues that are central to EPA's mission. The only requirement is that employees adhere to the government’s ethical regulations, which are in place to ensure that EPA and other agencies maintain the highest possible ethical standards at all times.

One EPA official said that the agency’s response wasn’t due to the content of the attorneys’ writings, but to the way they highlighted their EPA experience in making their arguments, which runs counter to agency rules federal regulations.

The lawyers' criticism hasn't always gone down well in environmental circles, because many greens worry the pair are providing more ammunition to critics of climate legislation. But even folks who shudder at the lawyers' argments worry that the current spat doesn't look good for free speech, notes Dave Roberts at Grist.

from the Washington Post, 2009-Oct-23, by Charles Krauthammer:

Fox wars
The 'post-partisan' president makes an enemies list

Rahm Emanuel once sent a dead fish to a live pollster. Now he's put a horse's head in Roger Ailes's bed.

Not very subtle. And not very smart. Ailes doesn't scare easily.

The White House has declared war on Fox News. White House communications director Anita Dunn said that Fox is "opinion journalism masquerading as news." Patting rival networks on the head for their authenticity (read: docility), senior adviser David Axelrod declared Fox "not really a news station." And Chief of Staff Emanuel told (warned?) the other networks not to "be led [by] and following Fox."

Meaning? If Fox runs a story critical of the administration -- from exposing "green jobs" czar Van Jones as a loony 9/11 "truther" to exhaustively examining the mathematical chicanery and hidden loopholes in proposed health-care legislation -- the other news organizations should think twice before following the lead.

The signal to corporations is equally clear: You might have dealings with a federal behemoth that not only disburses more than $3 trillion every year but is extending its reach ever deeper into private industry -- finance, autos, soon health care and energy. Think twice before you run an ad on Fox.

At first, there was little reaction from other media. Then on Thursday, the administration tried to make them complicit in an actual boycott of Fox. The Treasury Department made available Ken Feinberg, the executive pay czar, for interviews with the White House "pool" news organizations -- except Fox. The other networks admirably refused, saying they would not interview Feinberg unless Fox was permitted to as well. The administration backed down.

This was an important defeat because there's a principle at stake here. While government can and should debate and criticize opposition voices, the current White House goes beyond that. It wants to delegitimize any significant dissent. The objective is no secret. White House aides openly told Politico that they're engaged in a deliberate campaign to marginalize and ostracize recalcitrants, from Fox to health insurers to the U.S. Chamber of Commerce.

There's nothing illegal about such search-and-destroy tactics. Nor unconstitutional. But our politics are defined not just by limits of legality or constitutionality. We have norms, Madisonian norms.

Madison argued that the safety of a great republic, its defense against tyranny, requires the contest between factions or interests. His insight was to understand "the greater security afforded by a greater variety of parties." They would help guarantee liberty by checking and balancing and restraining each other -- and an otherwise imperious government.

Factions should compete, but they should also recognize the legitimacy of other factions and, indeed, their necessity for a vigorous self-regulating democracy. Seeking to deliberately undermine, delegitimize and destroy is not Madisonian. It is Nixonian.

But didn't Teddy Roosevelt try to destroy the trusts? Of course, but what he took down was monopoly power that was extinguishing smaller independent competing interests. Fox News is no monopoly. It is a singular minority in a sea of liberal media. ABC, NBC, CBS, PBS, NPR, CNN, MSNBC vs. Fox. The lineup is so unbalanced as to be comical -- and that doesn't even include the other commanding heights of the culture that are firmly, flagrantly liberal: Hollywood, the foundations, the universities, the elite newspapers.

Fox and its viewers (numbering more than those of CNN and MSNBC combined) need no defense. Defend Fox compared to whom? To CNN -- which recently unleashed its fact-checkers on a "Saturday Night Live" skit mildly critical of President Obama, but did no checking of a grotesquely racist remark that CNN falsely attributed to Rush Limbaugh?

Defend Fox from whom? Fox's flagship 6 o'clock evening news out of Washington (hosted by Bret Baier, formerly by Brit Hume) is, to my mind, the best hour of news on television. (Definitive evidence: My mother watches it even on the odd night when I'm not on.) Defend Fox from the likes of Anita Dunn? She's been attacked for extolling Mao's political philosophy in a speech at a high school graduation. But the critics miss the surpassing stupidity of her larger point: She was invoking Mao as support and authority for her impassioned plea for individuality and trusting one's own choices. Mao as champion of individuality? Mao, the greatest imposer of mass uniformity in modern history, creator of a slave society of a near-billion worker bees wearing Mao suits and waving the Little Red Book?

The White House communications director cannot be trusted to address high schoolers without uttering inanities. She and her cohorts are now to instruct the country on truth and objectivity?

from the Wall Street Journal, 2009-Oct-22, by Kimberley A. Strassel:

The Chicago Way
The Chamber of Commerce is only the latest target of the Chicago Gang in the White House.

They pull a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. That's the Chicago way.

–Jim Malone,

"The Untouchables"

When Barack Obama promised to deliver "a new kind of politics" to Washington, most folk didn't picture Rahm Emanuel with a baseball bat. These days, the capital would make David Mamet, who wrote Malone's memorable movie dialogue, proud.

A White House set on kneecapping its opponents isn't, of course, entirely new. (See: Nixon) What is a little novel is the public and bare-knuckle way in which the Obama team is waging these campaigns against the other side.

In recent weeks the Windy City gang added a new name to their list of societal offenders: the Chamber of Commerce. For the cheek of disagreeing with Democrats on climate and financial regulation, it was reported the Oval Office will neuter the business lobby. Obama adviser Valerie Jarrett slammed the outfit as "old school," and warned CEOs they'd be wise to seek better protection.

That was after the president accused the business lobby of false advertising. And that recent black eye for the Chamber (when several companies, all with Democratic ties, quit in a huff)—think that happened on its own? ("Somebody messes with me, I'm gonna mess with him! Somebody steals from me, I'm gonna say you stole. Not talk to him for spitting on the sidewalk. Understand!?")

The Chamber can at least take comfort in crowds. Who isn't on the business end of the White House's sawed-off shotgun? First up were Chrysler bondholders who—upon balking at a White House deal that rewarded only unions—were privately threatened and then publicly excoriated by the president.

Next, every pharmaceutical, hospital and insurance executive in the nation was held out as a prime obstacle to health-care nirvana. And that was their reward for cooperating. When Humana warned customers about cuts to Medicare under "reform," the White House didn't bother to complain. They went straight for the gag order. When the insurance industry criticized the Baucus health bill, the response was this week's bill to strip them of their federal antitrust immunity. ("I want you to find this nancy-boy . . . I want him dead! I want his family dead! I want his house burned to the ground!")

This summer Arizona Sen. Jon Kyl criticized stimulus dollars. Obama cabinet secretaries sent letters to Arizona Gov. Jan Brewer. One read: "if you prefer to forfeit the money we are making available to the state, as Senator Kyl suggests," let us know. The Arizona Republic wrote: "Let's not mince words here: The White House is intent on shutting Kyl up . . . using whatever means necessary." When Sens. Robert Bennett and Lamar Alexander took issue with the administration's czars, the White House singled them out, by name, on its blog. Sen. Alexander was annoyed enough to take to the floor this week to warn the White House off an "enemies list."

House Minority Whip Eric Cantor? Targeted for the sin of being a up-and-coming conservative voice. Though even Mr. Cantor was shoved aside in August so the Chicago gang could target at least seven Democratic senators, via the president's campaign arm, Organizing for America, for not doing more on health care. ("What I'm saying is: What are you prepared to do??!!")

And don't forget Fox News Channel ("nothing but a lot of talk and a badge!"). Fox, like MSNBC, has its share of commentators. But according to Obama Communications Director Anita Dunn, the entire network is "opinion journalism masquerading as news." Many previous White House press officers, when faced with criticism, try this thing called outreach. The Chicago crowd has boycotted Fox altogether.

What makes these efforts notable is that they are not the lashing out of a frustrated political operation. They are calculated campaigns, designed to create bogeymen, to divide the opposition, to frighten players into compliance. The White House sees a once-in-a-generation opportunity on health care and climate. It is obsessed with winning these near-term battles, and will take no prisoners. It knows that CEOs are easily intimidated and (Fox News ratings aside) it is getting some of its way. Besides, roughing up conservatives gives the liberal blogosphere something to write about besides Guantanamo.

The Oval Office might be more concerned with the long term. It is 10 months in; more than three long years to go. The strategy to play dirty now and triangulate later is risky. One day, say when immigration reform comes due, the Chamber might come in handy. That is if the Chamber isn't too far gone.

White House targets also aren't dopes. The corporate community is realizing that playing nice doesn't guarantee safety. The health executives signed up for reform, only to remain the president's political piñatas. It surely grates that the unions—now running their own ads against ObamaCare—haven't been targeted. If the choice is cooperate and get nailed, or oppose and possibly win, some might take that bet.

There's also the little fact that many Americans voted for this president in thrall to his vow to bring the country together. It's hard to do that amid gunfire, and voters might just notice.

("I do not approve of your methods! Yeah, well . . . You're not from Chicago.")

from the Times of London, 2009-Oct-28, by Dan Sabbagh:

Mandelson to press on with cutting internet links for download pirates

Lord Mandelson will say today that he intends to press ahead with controversial measures to cut off the internet connections of people caught downloading pirated music, films or television programmes.

The Business Secretary plans to introduce legislation to ensure that serial pirates will have their home internet services “suspended” for short periods as the flagship measure of next month's Digital Economy Bill.

It is understood that a service would be disconnected only after a series of offences, with initial breaches incurring warning letters and subsequent contraventions penalised by “throttling” internet connections to reduce download speeds.

Lord Mandelson's intervention — to be made in a speech this morning to creative industries executives — comes after months of pressure from the music industry, led by Lucian Grainge, chief executive of Universal Music.

Should the measure pass through Parliament, a suspension penalty would mean that parents could be at risk of losing their family internet connection if their children repeatedly used it to violate copyright. Concerns about the impact on families meant that the sanction of disconnection was initially dropped when considered in the run-up to the Digital Britain White Paper.

However, weeks after Digital Britain was published, Lord Mandelson decided that the piracy crisis was so severe that he put disconnection back on the table in August.

His speech comes on the last day of the three-day Cabinet conference, which has heard repeated calls from media company leaders for ministers to take a hard line on internet pirates. The French parliament recently passed a law that would sanction the disconnection of a households' internet connection if the subscriber had been caught illegally downloading music, television or film three times.

Jean-Bernard Levy, chief executive of Vivendi, the Paris-based owner of Universal Music, said that it was imperative that Britain mirrored the French “three strikes” law.

Elio Leoni-Sceti, chief executive of EMI Music, said that Britain needed to introduce a system that mirrored the system of speeding penalties for motorists. “It should be like a penalty on your licence the first time you get caught and on the second time you would be at risk of getting your licence taken away.”

Referring to the disconnection of internet services, Gail Rebuck, the UK chief executive of Random House, the publisher, said: “As a content provider, I am all for the ultimate sanction.”

However, the plan has to navigate opposition from BT and Carphone Warehouse, the internet service providers, which have complained about the costs of implementing the scheme and any other technical measures, and say that it would be almost impossible to enforce because technology makes it possible for serial pirates to disguise their online identities.

Next month's Digital Economy Bill will also focus on digital radio, the regulation of computer games and Channel 4 — with clauses giving the Pan-European Game Information (PEGI) age-rating system for computer games a statutory basis for the first time, legislating for changes to Channel 4's remit and outlining the procedure for radio's migration to a digital format, which could result in FM radio being switched off by 2015.

from the Far Eastern Economic Review, 2009-Oct-12, by Christopher Walker and Sarah Cook:

China's Export of Censorship

The Chinese government's effort to prevent dissident authors from taking part in the prestigious Frankfurt Book Fair, an international showcase for freedom of expression, has offered Germany a close-up view of China's intolerance of dissent.

In September, two Chinese writers, journalist Dai Qing and poet Bei Ling, had their invitations to the fair revoked by German event organizers after China's organizing committee complained. The Chinese delegation threatened a boycott over invitations to the writers for a September symposium promoting the Frankfurt Book Fair, which begins on October 14. China is the "guest of honor" at this year's fair. In the face of this pressure, the event's organizers withdrew the invitations. The writers' participation was ultimately enabled when the German PEN club of independent writers invited the two Chinese dissidents.

While Beijing's coercive behavior caught many Germans off guard, it should not have come as a surprise; the Chinese Communist Party's (CCP) censorship ambitions are neither new, nor limited to Germany. In fact, this action is just the latest example of an ongoing pattern of interference, cooptation and intimidation beyond China's borders used to muzzle voices critical of the Chinese government.

Two days after the opening of the Frankfurt Book Fair, a film festival in Taiwan's second largest city, Kaohsiung, will begin. It, too, has come under pressure to censor. In this instance the issue is a planned screening of “The 10 Conditions of Love,” a documentary about exiled Uighur rights activist Rebiya Kadeer. Chinese authorities assert Kadeer has terrorist links, unsubstantiated claims not accepted by most Western countries or independent analysts. Despite pressure to shelve the film—linked to fears that the city's growing industry servicing mainland tourists could be hurt—the Kaohsiung Film Archive and the organizing committee of the 2009 Kaohsiung Film Festival announced on September 27 that it would go ahead with the screening. A similar series of events unfolded at the Melbourne Film Festival this summer.

In September, Uighur activist Dolkun Isa, who holds German citizenship, was denied entry into South Korea, to take part in a conference on democracy. China is South Korea's largest trading partner. Isa, who fled China in 1997 and obtained asylum in Germany, was held at the Seoul airport without explanation for two days after being denied entry to South Korea.

The Chinese authorities have developed an elaborate arsenal of censorship, including an extensive domestic apparatus of information control. Less appreciated and understood are the methods of interference and intimidation employed to muzzle critical voices abroad. Some of the modern authoritarian techniques the Chinese authorities use for this purpose beyond its borders are detailed in a study, “Undermining Democracy: 21st Century Authoritarians,” recently released by Freedom House, Radio Free Europe/Radio Liberty and Radio Free Asia.

Economic coercion is a principal line of attack in the transnational suppression of issues deemed sensitive by China's rulers. The coercion is applied directly and indirectly.

Instances of direct economic coercion and censorship typically occur when an event has already been planned or already begun. Pressure is then applied by Chinese government representatives on the organizers or local authorities to suppress certain activities or appearances deemed undesirable by the CCP. In such instances, explicit or implicit threats of boycotts, trade sanctions, or withdrawal of Chinese government funding have been used to force the hand of those in charge. The CCP's Frankfurt Book Fair gambit fits this model, given the financial implications of the Chinese government's $15 million investment in the event.

More insidious has been an indirect form of economic intimidation, whereby publications, event organizers or governments engage in self-censorship on topics deemed sensitive to the mainland, a dynamic some have dubbed “pre-emptive kowtowing.” Given their small size, proximity and relationship to the mainland, Hong Kong and Taiwan are particularly vulnerable to this phenomenon.

This June, the Hong Kong edition of Esquire magazine, published by South China Media, pulled a feature story by journalist Daisy Chu on the Tiananmen Square massacre slated to run on the 20th anniversary. In 2008, a prominent legal journal in Hong Kong made a last-minute decision not to publish an article on Tibetan self-determination. A blackout on independent coverage of the Falun Gong is believed to be practiced among certain Hong Kong and Taiwanese outlets whose owners have close ties to Beijing or significant business interests on the mainland.

As China's economic clout and role on the global stage grows, it will inevitably exert greater influence beyond its borders. However, the issue is not whether China—which features one the world's least hospitable environments for free expression—will project influence but what shape this growing power will take. The CCP plans, for instance, to spend billions of dollars on expanding its overseas media operations in a potentially massive show of “soft power.” But whether this enormous investment will simply project the deeply illiberal values that characterize China's domestic media scene to a wider playing field is a question advocates of free expression should seriously ponder.

This critical question, so far, does not provide an encouraging answer.

China's attempts to insinuate itself into Taiwan's media sector, and Beijing's ongoing efforts to limit the vitality of Hong Kong's media, are among the examples of this phenomenon in Asia. The CCP has recently demonstrated its willingness to suppress open expression in Germany and Australia. The United States is not immune to this pressure. The Dalai Lama will be waiting a bit longer for his meeting with President Obama.

The Chinese government's position at the vanguard of efforts to monitor and filter Internet content, using its wealth and technical acumen to devise methods to limit the free and independent flow of information online, also has serious transnational implications for free expression. China effectively serves as an incubator for new media suppression; authoritarian governments around the world carefully watch China's censorship techniques and learn from its innovations.

The community of democratic states must acknowledge the Chinese government's growing media ambitions and efforts to censor beyond its borders. Acquiescence in this challenge will only embolden the Chinese authorities.

Christopher Walker is director of studies and Sarah Cook is an Asia researcher at Freedom House.

from the Wall Street Journal, 2009-Oct-25, by Mary Anastasia O'Grady:

Argentina's Kirchner Targets the Press
As the state-run economy hits the skids, the government responds with a crackdown on the free press.

One way a president can boost poll numbers in a bad economy is to wrest control of the central bank and start printing lots of pesos. There's nothing like cheap financing to restore the market's enthusiasm for buying all sorts of stuff—from stocks to houses—already on sale at fire sale prices. The great reflation will make people feel rich again. A weak currency will also be a short-term boon to exporters, whose profits can then be taxed at ever higher rates. Complainers can be denounced for their greed.

Of course this perpetual motion machine will eventually conk out and when it does, a government that expects to survive will find it necessary to silence its critics. Just ask Argentines, who are living all of this in real time.

After more than five years of heavy state intervention in the economy, Argentina is again sliding into recession. Double-digit inflation is spiraling north and the government is running out of money. In response, President Cristina Kirchner is cracking down on the free press. Argentines are wondering if their democracy will survive.

The story of how Argentina got here is important to recall. The economy was flat on its back after the 2001-2002 collapse of "convertibility," the monetary arrangement that pegged the peso to the dollar. A demoralized nation was looking for a savior.

It thought it found one in Néstor Kirchner. He became president in 2003 and set about to restore the state-run economic model of Juan Peron; the market, he maintained, had failed. Mr. Kirchner took control of the central bank. He demonized the private-sector and investors. Using price controls, subsidies and regulation he made himself a Robin Hood to the masses. The legislature granted him extraordinary powers.

The economy bounced back as one would expect after a harsh contraction, and in 2007 his wife was elected president with 45% of the vote.

Now the illusionists are losing their touch. Not only is the economy going sour, but according to polls, the nation is growing intolerant of what many consider to be the first couple's abuse of power.

Four examples serve to make the point: First, when Mrs. Kirchner attacked the farm sector last year because it resisted her plan to impose high export taxes on its harvests, the nation rallied to the defense of the farmers, much to her surprise. Second, her decision to confiscate privately held pension accounts was loudly denounced as a violation of the rule of law. Third, there is a widespread belief that her government is using the state intelligence service to collect information against the president's "enemies." Fourth, an overwhelming majority of Argentines resent the privileges and jet-set lifestyle of the first family while national living standards plummet.

This popular dissatisfaction showed up at the polls in the June midterm elections, when Mrs. Kirchner's wing of the Peronist party lost badly. Even Mr. Kirchner did not manage to prevail in his bid for a house seat representing the province of Buenos Aires, which should have been a stronghold for the first couple.

Mrs. Kirchner and her husband have decided that they lost because of bad press coverage. They are especially upset with the Clarin media company, which though once a supporter, is now an outspoken critic. In public comments Mr. Kirchner often implies that the government is analyzing the company to see if it might not need to be downsized. In September, tax authorities launched a raid on the Buenos Aires offices of its daily newspaper. Tax authorities later issued an apology for the raid, but the paper maintains that it was an act of intimidation.

Yet the problem of bad press for the Kirchners is much bigger than Clarin. As the antimarket economic model hits the skids, the nation is turning against its architects and a free press will not remain silent. This is why the president forced a media law through the legislature two weeks ago, creating a new "audio-visual" regulatory board controlled by the executive.

The law also grants the executive control over all licensing of the radio spectrum and reserves at least two-thirds of it for state-owned and nongovernmental broadcasters approved by the executive. There is concern that Mrs. Kirchner is now preparing to take over the most important domestic supplier of newsprint and to begin using import licensing to control access to foreign supplies.

Hugo Chávez has become a dictator in Venezuela under the guise of democracy, and he has similarly shut down the free press. Argentines are worried.

Last week in the Argentine daily La Nación, philosopher and writer Santiago Kovadloff summed up opposition sentiment about the government's use of "the law" to consolidate power: "The law has become a beloved tool of corruption," Mr. Kovadloff wrote. "The executive has put it at its service. It manipulates it with skill." And where does that leave society? "Insecurity is no longer a threat. We are in the jungle."

from the Weekly Standard, 2009-Oct-5, by Anne Bayefsky:

You Can't Say That
At the UN, the Obama administration backs limits on free speech.

The Obama administration has marked its first foray into the UN human rights establishment by backing calls for limits on freedom of expression. The newly-minted American policy was rolled out at the latest session of the UN Human Rights Council, which ended in Geneva on Friday. American diplomats were there for the first time as full Council members and intent on making friends.

President Obama chose to join the Council despite the fact that the Organization of the Islamic Conference holds the balance of power and human rights abusers are among its lead actors, including China, Cuba, and Saudi Arabia. Islamic states quickly interpreted the president's penchant for "engagement" as meaning fundamental rights were now up for grabs. Few would have predicted, however, that the shift would begin with America's most treasured freedom.

For more than a decade, a UN resolution on the freedom of expression was shepherded through the Council, and the now defunct Commission on Human Rights which it replaced, by Canada. Over the years, Canada tried mightily to garner consensus on certain minimum standards, but the "reformed" Council changed the distribution of seats on the UN's lead human rights body. In 2008, against the backdrop of the publication of images of Mohammed in a Danish newspaper, Cuba and various Islamic countries destroyed the consensus and rammed through an amendment which introduced a limit on any speech they claimed was an "abuse . . . [that] constitutes an act of racial or religious discrimination."

The Obama administration decided that a revamped freedom of expression resolution, extracted from Canadian hands, would be an ideal emblem for its new engagement policy. So it cosponsored a resolution on the subject with none other than Egypt--a country characterized by an absence of freedom of expression.

Privately, other Western governments were taken aback and watched the weeks of negotiations with dismay as it became clear that American negotiators wanted consensus at all costs. In introducing the resolution on Thursday, October 1--adopted by consensus the following day--the ranking U.S. diplomat, Chargé d'Affaires Douglas Griffiths, crowed:

"The United States is very pleased to present this joint project with Egypt. This initiative is a manifestation of the Obama administration's commitment to multilateral engagement throughout the United Nations and of our genuine desire to seek and build cooperation based upon mutual interest and mutual respect in pursuit of our shared common principles of tolerance and the dignity of all human beings."

His Egyptian counterpart, Ambassador Hisham Badr, was equally pleased--for all the wrong reasons. He praised the development by telling the Council that "freedom of expression . . . has been sometimes misused," insisting on limits consistent with the "true nature of this right" and demanding that the "the media must . . . conduct . . . itself in a professional and ethical manner."

The new resolution, championed by the Obama administration, has a number of disturbing elements. It emphasizes that "the exercise of the right to freedom of expression carries with it special duties and responsibilities . . ." which include taking action against anything meeting the description of "negative racial and religious stereotyping." It also purports to "recognize . . . the moral and social responsibilities of the media" and supports "the media's elaboration of voluntary codes of professional ethical conduct" in relation to "combating racism, racial discrimination, xenophobia and related intolerance." Pakistan's Ambassador Zamir Akram, speaking on behalf of the Organization of the Islamic Conference, made it clear that they understand the resolution and its protection against religious stereotyping as allowing free speech to be trumped by anything that defames or negatively stereotypes religion. The idea of protecting the human rights "of religions" instead of individuals is a favorite of those countries that do not protect free speech and which use religion--as defined by government--to curtail it.

Even the normally feeble European Union tried to salvage the American capitulation by expressing the hope that the resolution might be read a different way. Speaking on behalf of the EU following the resolution's adoption, French Ambassador Jean-Baptiste Mattéi declared that "human rights law does not, and should not, protect religions or belief systems, hence the language on stereotyping only applies to stereotyping of individuals . . . and not of ideologies, religions or abstract values. The EU rejects the concept of defamation of religions." The EU also distanced itself from the American compromise on the media, declaring that "the notion of a moral and social responsibility of the media" goes "well beyond" existing international law and "the EU cannot subscribe to this concept in such general terms."

In 1992 when the United States ratified the main international law treaty which addresses freedom of expression, the government carefully attached reservations to ensure that the treaty could not "restrict the right of free speech and association protected by the Constitution and laws of the United States."

The Obama administration's debut at the Human Rights Council laid bare its very different priorities. Threatening freedom of expression is a price for engagement with the Islamic world that it is evidently prepared to pay.

Anne Bayefsky is a senior fellow at the Hudson Institute, a professor at Touro College, and the editor of EYEontheUN.org.

from the Wall Street Journal, 2009-Oct-17, p.A13, by Peter Berkowitz:

Academia Goes Silent on Free Speech
Yale's decision to censor anti-Muslim cartoons deserved a thoughtful debate. We didn't get one.

Professors have a professional interest in—indeed a professional duty to uphold—liberty of thought and discussion. But in recent years, precisely where they should be most engaged and outspoken they have been apathetic and inarticulate.

Consider Yale. On Oct. 1, the university hosted Danish cartoonist Kurt Westergaard. His drawing of Muhammad with a bomb in his turban became the best known of 12 cartoons published by the Danish newspaper Jyllands-Posten in September 2005. That led to deadly protests throughout the Muslim world. On the same day, at an unrelated event, Yale hosted Brandeis Prof. Jytte Klausen. Her new book, "The Cartoons that Shook the World," was subject in August to a last minute prepublication decision by Yale President Richard Levin and Yale University Press to remove not only the 12 cartoons but also all representations of Muhammad, including respected works of art.

The Westergaard appearance inspired protests. Muslim students condemned Yale's invitation to the cartoonist as religiously and racially insensitive, compared him to Holocaust deniers and white supremacists, and declared his art and utterances hate speech rather than free speech.

Students will be students. It is to be hoped that those who opposed Mr. Westergaard's invitation will learn at Yale that the aim of liberal education is not to guard their sensitivities but to teach them to listen to diverse opinions and fortify them to respond with better arguments to those with whom they disagree.

Mr. Westergaard's appearance did prompt a small faculty-led panel discussion on Oct. 7. It dealt mainly with Muslim reaction to the cartoons, though Prof. Seyla Benhabib said that in Ms. Klausen's position she would have withdrawn the book. But generally the faculty has been unmoved by Yale's censorship of Ms. Klausen's book, which suggests that lessons in the fundamentals of liberty of thought and discussion may be lacking on campus.

To be sure, Yale's censorship—the right word because Yale suppressed content on moral and political grounds—raised difficult questions. Can't rights, including freedom of speech and press, be limited to accommodate other rights and goods? What if reprinting the cartoons and other depictions gave thugs and extremists a new opportunity to inflame passions and unleash violence? Can't the consequences of the cartoons' original publication be understood without reproducing them? Weren't the cartoons really akin, as Yale Senior Lecturer Charles Hill pointed out in a letter to the Yale Alumni magazine, to the depictions of Jews as grotesque monsters that successive American administrations have sought to persuade Arab newspapers to cease publishing? And isn't it true, as Mr. Hill also observed, that Yale's obligation to defend free speech does not oblige it to subsidize gratuitously offensive or intellectually worthless speech?

These are good questions—to which there are good answers.

Rights are subject to limits, but a right as fundamental to the university and the nation as freedom of speech and press should only be limited in cases of imminent danger and not in deference to speculation about possible violence at an indeterminate future date. One can't properly evaluate Ms. Klausen's contention that the cartoons were cynically manipulated without assessing with one's own eyes whether the images passed beyond mockery and ridicule to the direct incitement of violence.

Even if the cartoons exhibited a kinship to anti-Semitic caricatures, it would cut in favor of publication: a scholar would be derelict in his duties if he published a work on anti-Semitic images without including examples. And finally, if Yale chooses to publish a rigorous analysis of the Danish cartoon controversy, which affected the national interest and roiled world affairs, then the university does incur a scholarly obligation to include all the relevant information and evidence including the cartoons at the center, regardless of whether they are in themselves gratuitously offensive and intellectually worthless.

The wonder is that Yale's censorship has excited so little debate at Yale. The American Association of University Professors condemned Yale for caving in to terrorists' "anticipated demands." And a group of distinguished alumni formed the Yale Committee for a Free Press and published a letter protesting Yale's "surrender to potential unknown billigerents" and calling on the university to correct its error by reprinting Ms. Klausen's book with the cartoons and other images intact. But the Yale faculty has mostly yawned. Even the famously activist Yale Law School has, according to its director of public affairs, sponsored no programs on censorship and the university.

Alas, there is good reason to suppose that in its complacency about threats to freedom on campus the Yale faculty is typical of faculties at our leading universities. In 2006, even as the police had barely begun their investigation, Duke University President Richard Brodhead lent the prestige of his office to faculty members' prosecution and conviction in the court of public opinion of three members of the Duke lacrosse team falsely accused of gang raping an African-American exotic dancer. It turned out they were being pursued by a rogue prosecutor. To be sure, it was only a vocal minority at Duke who led the public rush to judgment. But the vast majority of the faculty stood idly by, never rising to defend the presumption of innocence and the requirements of fair process. Perhaps Duke faculty members did not realize or perhaps they did not care that these formal and fundamental protections against the abuse of power belong among the conditions essential to the lively exchange of ideas at the heart of liberal education.

Similarly, in 2005, Harvard President Lawrence Summers sparked a faculty revolt that ultimately led to his ouster by floating at a closed-door, off-the-record meeting the hypothesis—which he gave reasons for rejecting only a few breaths after posing it—that women were poorly represented among natural science faculties because significantly fewer women than men are born with the extraordinary theoretical intelligence necessary to succeed at the highest scientific levels. Before he was forced to resign, Mr. Summers did his part to set back the cause of unfettered intellectual inquiry by taking the side of his accusers and apologizing repeatedly for having dared to expose an unpopular idea to rational analysis. Apart from a few honorable exceptions, the Harvard faculty could not find a principle worth defending in the controversy over Mr. Summer's remarks.

As the controversies at Yale, Duke and Harvard captured national attention, professors from other universities haven't had much to say in defense of liberty of thought and discussion either. This silence represents a collective failure of America's professors of colossal proportions. What could be a clearer sign of our professors' loss of understanding of the requirements of liberal education than their failure to defend liberty of thought and discussion where it touches them most directly?

Mr. Berkowitz is a fellow at Stanford University's Hoover Institution.

from the Wall Street Journal, 2009-Oct-18, by L. Gordon Crovitz:

Bloggers Mugged by Regulators
The FTC wants to police book reviews on Twitter.

There's a saying that a neoconservative is a liberal who has been mugged by reality. We've now learned that bloggers mugged by regulators become economic libertarians.

Earlier this month, the Federal Trade Commission issued its "Guides Concerning the Use of Endorsements and Testimonials in Advertising," last updated in 1980. These rules historically regulated what celebrity endorsers can say and how advertisers can use research claims.

This time the agency decided that regulations covering "endorsements and testimonials" should apply to people commenting on product or services, such as reviewing the latest gadgets or fashions, through blogs, Facebook posts and Twitter updates. The blogosphere erupted.

The guidelines require people to disclose online if they have what the FTC vaguely defines as "material connections" with the sellers of a product or service. This could include getting free samples on which they base comments or reviews. Bloggers objected to the double standard that exempts traditional media from the rules—many newspapers, magazines and broadcasters accept free books and other products for their reviewers.

Bloggers are for more transparency—it's only ethical to disclose products provided free—but argue that their activities are squarely in the realm of speech, not commerce. The guidelines are "an attack on markets and free speech, based on a 20th Century notion of media and advertising that simply doesn't map to the new era," Dan Gillmor posted on his technology blog. "The advertising of the past was a one-to-many system. Call it broadcasting. The Internet is a many-to-many system. Call it conversation. They are not the same."

Or as blogger Jeff Jarvis posted, "For the FTC to go after bloggers and social media—as they explicitly do—is the same as sending a government goon into Denny's to listen to the conversations in the corner booth and demand that you disclose that your Uncle Vinnie owns the pizzeria whose product you endorsed."

There are also practical objections. For example, if you get a free copy of a book and then post a comment about it on Twitter, how many of the permitted 140 characters must be dedicated to the disclosure? Do employees of a company have to disclose the fact of their employment every time they comment on its products through their personal Facebook accounts?

The reaction to the regulations was so strong that last week the FTC tried to step back. The agency said it planned to bring actions against companies as advertisers, not against bloggers or individuals. But the draft rules cover anyone who comments on products and fails to disclose a relationship, even getting a free CD or music download and then commenting on the song.

Randall Rothenberg, head of the Interactive Advertising Bureau, wrote a cheeky open letter to FTC head Jon Leibowitz titled "Chairman Leibowitz, Tear Down This Blogger Wall!" He said the regulations are based on a view that "opinions published by individuals have less protection than speech promulgated by large corporations; that 'traditional' distribution channels deserve more protection than innovative online channels; and, finally, that the Internet, the cheapest, freest, most accessible communications medium ever invented, should have less freedom than other media."

There should be more disclosure, but the Web is different from earlier media in ways that make government regulation less relevant and practical. The Web has its own self-regulatory mechanisms. Failing to disclose interests sullies one's reputation online, and reputation harm travels faster and lasts longer than it did before the Web.

There's also greater need for caveat emptor online, because there is no practical way that any government agency can monitor the world's bloggers and posters. There will always be people who post comments about products and services that are self-serving in one way or another, at least by someone's definition.

This is why independent brands that stand for objectivity continue to flourish. ConsumerReports.org has more than three million paying subscribers even with—especially with?—the many free product reviews posted by consumers online. Many of the most consistently popular bloggers have likewise earned reputations for operating with full transparency, which contributes to their popularity.

Instead of trying to extend analog-era regulations onto the Web, the FTC should encourage readers to be vigilant about assessing for themselves the independence of sources online. At least we now know the biggest fraudulent claim so far on the Web: It's been committed by regulators claiming there can be a government stamp of approval on everything anyone posts anywhere on the Web.

from the Wall Street Journal, 2009-Oct-8, by Eric Felten:

Save Us From the Swag-Takers

The Federal Trade Commission, eager to protect us from shoddy media practices, issued new regulations this week requiring full disclosure from a variety of sneaky characters. Celebrities are on notice that if they sing the praises of product X while on Oprah's couch, they had better mention how much the makers of product X are paying them, even if that payment is nothing more than a free sample in a goodie bag. The famous are not the FTC's only target. The agency declared that "a blogger who receives cash or in-kind payment to review a product is considered an endorsement." Sounds reasonable enough, until it becomes clear just how expansive the FTC's concept of an "in-kind payment" is. The blogger who gets a free review copy of a book and writes up his opinion of it is now being labeled by the government a commercial endorser of the book—even if he pans it. This is not how traditional media are treated, which is what makes the new rules so significant: The government has weighed in on the contentious topic of whether bloggers are journalists—and delivered a resounding No.

The specter of freebies has long haunted journalism. In the '30s, '40s and '50s, Hollywood columnist Louella Parsons was famous for her swag intake. Come Christmas Eve she would "unwrap an avalanche of gifts" from Tinseltown royalty, according to screenwriter Anita Loos. "Two secretaries used to stand with notebooks to keep score so that Louella could remember the next day who had sent what." Those notes weren't taken to help her make proper disclosures to her readers.

Most newspapers and some magazines have tightened their standards in the years since. But that hardly means that the gravy train has stopped running. Many are the junkets enjoyed by travel writers. Jumbo are the shrimp and deep are the highballs at most media events. In writing the "How's Your Drink?" column for The Wall Street Journal, I found that spirits publicists were confused, even perplexed, when I explained that it was Journal policy for me to buy the liquor I tasted.

And yet even newspapers with the strictest of ethics rules accept free copies of books for review. Movie, music and theater reviewers get their tickets comped. The scribblers covering sports aren't in the habit of paying skybox rates for their privileged perches at the stadium. While newspapers make no secret of these common practices, they don't plaster warnings on every book review or description of a football game. But that's exactly what the FTC is requiring of bloggers.

"I think this is absurd," says Alejandra Ramos, who writes a foodie blog called Always Order Dessert. She also happens to be an editor for a prominent women's fashion and lifestyle magazine and suggests that the FTC is laughably na*iuml;ve when it comes to the standards and practices of her business: "Magazines are sent free products all the time." So much so that staffers have to be encouraged to take products home just to clear out the "beauty closets." And yet, Ms. Ramos says, when a big glossy does a feature on "seven mascaras that will make your lashes look longer, they do not appear with a disclaimer that 'L'Oreal sent us this mascara for free.' " Why, she asks, should the law treat bloggers any differently?

A cynic might suggest that bloggers are being singled out because, lacking deep pockets to litigate, they are easy targets for a federal agency looking to expand government regulation of speech. Full disclosure and squeaky-clean ethics are the stuff that earn trust for any journalist, not just bloggers. But as Sam Bayard, a fellow at Harvard Law School's Berkman Center for Internet & Society asks: "Do we need the government requiring it?" First Amendment doctrine puts a heavy burden on the state not to "chill" speech unless there is a compelling interest, a serious harm to be averted. A little faith in consumers' common-sense capacity to spot phonies and frauds is in order. When a lousy book gets an effusive five-star rave from an anonymous Amazon poster, do we need the feds to warn us that it just might be the author's mother typing away?

Blogola hardly goes unchallenged. The rough and tumble of Internet speech has encouraged the outing of those on the take. But even if it hadn't, is the prospect of bloggers in the bag really so pernicious that it justifies the notion that their free-speech rights are less robust than those of, say, ecdysiasts?

And then there's the question of just what counts as a "material connection" shared "with the seller of the product or service." Consider the young bloggers advertising the advantages of attending M.I.T. The school's admissions office, like that of many colleges, encourages students to write about their experiences in and out of class. One might be forgiven for mistaking this as an unobjectionable effort to give prospective students a window on campus life. But if the FTC guidelines are to be believed, it's a scam. The FTC requires the full scope of the financial relationship between bloggers and their corporate enablers to be revealed. How many college students actually pay full freight for their educations? If a student blogger wants to post about his college, he'll need to account for every penny of financial aid he has accepted.

The FTC has been saying not to worry because it plans to bring actions against violators only in rare cases—as though the promise of selective enforcement is a balm to those worried about regulatory overreach. Who knows how widely the FTC's regulations involving bloggers and celebrities might extend? Then again, maybe it's not such a bad idea after all: Given the new imperative that public figures disclose the clothes they are given, the agency might want to require a disclaimer from doctors who parade about the Rose Garden in spiffy white lab coats they didn't buy.

FULL DISCLOSURE NOTICE: In preparing this column, I downloaded a free copy of the new FTC regulatory guidelines. Thanks, guys!

from the Wall Street Journal, 2009-Oct-4, by L. Gordon Crovitz:

More Insults, Please
Blocking Muslim cartoons and other attempts at Web censorship.

In today's world of instant global communication, disagreements happen more quickly and resentments get established in real time. Just as the British and Americans have been called two nations divided by a common language, today we all share the Internet, yet we are divided by the instant communicating that digital technology makes possible.

Recall the incident in 2005, when a Danish newspaper printed a dozen cartoons featuring the Prophet Mohammed, including one with a bomb in his turban. Posting the cartoons on the Web resulted in protests in much of the Muslim world, including riots and deaths. The bomb-in-the-turban cartoonist, Kurt Westergaard, has received death threats and lives under 24-hour police protection in Copenhagen. Last week he visited the U.S., with the message that when it comes to insult and humor, there is little common ground around the world.

"As the Danish tradition is for satire, we say you can speak freely, you can vote, you can speak out any time, but there's only one thing you can't do—you can't be free of being mocked or being offended," Mr. Westergaard said in a speech in New York City. "That's the condition in Denmark."

Insults are a longstanding part of free expression in much of the West but are under pressure in our digital era of instantaneous communication. Instead of the Internet adding to freedom as we usually assume it does, its global reach makes it an excuse for censorship. Many governments lobby for anti-insult laws, even though insults are a key means of criticism. Leaders of several Muslim countries have tried to get perceived insults to their religion reclassified as offenses.

The Jyllands-Posten newspaper solicited cartoons after threats to Danes by Islamists, including physical attacks on authors, musicians and academics. "In this situation the paper felt that it was imperative to test whether we still enjoyed free speech," Mr. Westergaard wrote in Princeton University's student newspaper last week. This included "the right to treat Islam, Muhammad and Muslims exactly as you would any other religion, prophet or group of believers. If we no longer had that right, one could only conclude that the country had succumbed to de facto sharia law."

As the cartoons spread on the Web, agitators in several countries fanned the flames by adding mocking cartoons and photos that had not actually appeared in the Danish newspaper. Danish Embassies were burned in Syria, Lebanon and Iran, and its exports were boycotted. Prime Minister Anders Fogh Rasmussen, now NATO's secretary-general, refused to apologize.

The issue faded until this August, when Yale University Press decided to remove the cartoons from a book it had agreed to publish called "The Cartoons That Shook the World," by Brandeis University Prof. Jytte Klausen. Yale claimed that it was censoring not based on content but because of the risk of violence.

A group of Yale graduates sent a letter objecting. "I think it's horrifying that the campus of Nathan Hale has become the first place where America surrenders to this kind of fear because of what extremists might possibly do," said one of the graduates, Michael Steinberg.

Insults are under threat in many countries. The World Press Freedom Committee earlier this year published a survey, "The Right to Offend, Shock or Disturb," which details how laws against insults are being used to squelch free speech, including opposition to the government.

Last year, French President Nicolas Sarkozy tried to use a 19th-century law against insulting the president to ban voodoo dolls featuring his likeness. The editor of another Web site in Saudi Arabia had to flee the country when he was accused of insulting Islam by criticizing the kingdom's religious police. And in 2007, a Web site in Russia was fined for publishing an article titled "Putin as Phallic Symbol of Russia," satirizing the prime minister's effort to increase the country's birthrate.

Contrast this with the admiration we have for great insults. Winston Churchill was the master of the putdown, dismissing various political opponents as "a modest man, who has much to be modest about," "a sheep in sheep's clothing," and someone who "has all the virtues I dislike and none of the vices I admire."

An article in Heeb, a self-mockingly named Jewish satire magazine, criticized Yale's censorship of the Danish cartoons: "While we would definitely be opposed to Yale University desecrating the Torah, we certainly wouldn't think it inappropriate if, in a book about the subject, they showed some photos of desecrated Torahs." The writer tried to follow Yale's contorted reasoning to justify the removal of the cartoons from a book about the cartoons, but gave up: "Who knows? We have no idea, but one thing is for sure—we know who we're rooting for in this year's Harvard-Yale game." Nice insult.

from CNET News.com, 2009-Aug-28, by Declan McCullagh:

Bill would give president emergency control of Internet

Internet companies and civil liberties groups were alarmed this spring when a U.S. Senate bill proposed handing the White House the power to disconnect private-sector computers from the Internet.

They're not much happier about a revised version that aides to Sen. Jay Rockefeller, a West Virginia Democrat, have spent months drafting behind closed doors. CNET News has obtained a copy of the 55-page draft of S.773 (excerpt), which still appears to permit the president to seize temporary control of private-sector networks during a so-called cybersecurity emergency.

The new version would allow the president to "declare a cybersecurity emergency" relating to "non-governmental" computer networks and do what's necessary to respond to the threat. Other sections of the proposal include a federal certification program for "cybersecurity professionals," and a requirement that certain computer systems and networks in the private sector be managed by people who have been awarded that license.

"I think the redraft, while improved, remains troubling due to its vagueness," said Larry Clinton, president of the Internet Security Alliance, which counts representatives of Verizon, Verisign, Nortel, and Carnegie Mellon University on its board. "It is unclear what authority Sen. Rockefeller thinks is necessary over the private sector. Unless this is clarified, we cannot properly analyze, let alone support the bill."

Representatives of other large Internet and telecommunications companies expressed concerns about the bill in a teleconference with Rockefeller's aides this week, but were not immediately available for interviews on Thursday.

A spokesman for Rockefeller also declined to comment on the record Thursday, saying that many people were unavailable because of the summer recess. A Senate source familiar with the bill compared the president's power to take control of portions of the Internet to what President Bush did when grounding all aircraft on Sept. 11, 2001. The source said that one primary concern was the electrical grid, and what would happen if it were attacked from a broadband connection.

When Rockefeller, the chairman of the Senate Commerce committee, and Olympia Snowe (R-Maine) introduced the original bill in April, they claimed it was vital to protect national cybersecurity. "We must protect our critical infrastructure at all costs--from our water to our electricity, to banking, traffic lights and electronic health records," Rockefeller said.

The Rockefeller proposal plays out against a broader concern in Washington, D.C., about the government's role in cybersecurity. In May, President Obama acknowledged that the government is "not as prepared" as it should be to respond to disruptions and announced that a new cybersecurity coordinator position would be created inside the White House staff. Three months later, that post remains empty, one top cybersecurity aide has quit, and some wags have begun to wonder why a government that receives failing marks on cybersecurity should be trusted to instruct the private sector what to do.

Rockefeller's revised legislation seeks to reshuffle the way the federal government addresses the topic. It requires a "cybersecurity workforce plan" from every federal agency, a "dashboard" pilot project, measurements of hiring effectiveness, and the implementation of a "comprehensive national cybersecurity strategy" in six months--even though its mandatory legal review will take a year to complete.

The privacy implications of sweeping changes implemented before the legal review is finished worry Lee Tien, a senior staff attorney with the Electronic Frontier Foundation in San Francisco. "As soon as you're saying that the federal government is going to be exercising this kind of power over private networks, it's going to be a really big issue," he says.

Probably the most controversial language begins in Section 201, which permits the president to "direct the national response to the cyber threat" if necessary for "the national defense and security." The White House is supposed to engage in "periodic mapping" of private networks deemed to be critical, and those companies "shall share" requested information with the federal government. ("Cyber" is defined as anything having to do with the Internet, telecommunications, computers, or computer networks.)

"The language has changed but it doesn't contain any real additional limits," EFF's Tien says. "It simply switches the more direct and obvious language they had originally to the more ambiguous (version)...The designation of what is a critical infrastructure system or network as far as I can tell has no specific process. There's no provision for any administrative process or review. That's where the problems seem to start. And then you have the amorphous powers that go along with it."

Translation: If your company is deemed "critical," a new set of regulations kick in involving who you can hire, what information you must disclose, and when the government would exercise control over your computers or network.

The Internet Security Alliance's Clinton adds that his group is "supportive of increased federal involvement to enhance cyber security, but we believe that the wrong approach, as embodied in this bill as introduced, will be counterproductive both from an national economic and national secuity perspective."

Update at 3:14 p.m. PDT: I just talked to Jena Longo, deputy communications director for the Senate Commerce committee, on the phone. She sent me e-mail with this statement:

The president of the United States has always had the constitutional authority, and duty, to protect the American people and direct the national response to any emergency that threatens the security and safety of the United States. The Rockefeller-Snowe Cybersecurity bill makes it clear that the president's authority includes securing our national cyber infrastructure from attack. The section of the bill that addresses this issue, applies specifically to the national response to a severe attack or natural disaster. This particular legislative language is based on longstanding statutory authorities for wartime use of communications networks. To be very clear, the Rockefeller-Snowe bill will not empower a "government shutdown or takeover of the Internet" and any suggestion otherwise is misleading and false. The purpose of this language is to clarify how the president directs the public-private response to a crisis, secure our economy and safeguard our financial networks, protect the American people, their privacy and civil liberties, and coordinate the government's response.

Unfortunately, I'm still waiting for an on-the-record answer to these four questions that I asked her colleague on Wednesday. I'll let you know if and when I get a response.

from the Wall Street Journal, 2009-Oct-2, by Jeremy Rabkin and Jeffrey Eisenach:

The U.S. Abandons the Internet
Multilateral governance of the domain name system risks censorship and repression.

There's a lot of concern out there right now about America's world leadership—facing down Iran's nuclear program, bracing NATO's commitment in Afghanistan, maintaining free trade. Here's something else to worry about: Has the Obama administration just given up U.S. responsibility for protecting the Internet?

What makes it possible for users to connect with all the different Web sites on the Internet is the system that allocates a unique electronic address to each site. The addresses are organized within larger entities called top-level domains—".com," ".edu," ".gov" and so on. Overseeing this arrangement is a relatively obscure entity, the Internet Corporation for Assigned Names and Numbers (ICANN). Without the effective oversight of ICANN, the Internet as we know it would not exist, billions of dollars of online commerce and intellectual property would be at risk, and various forms of mass censorship could become the norm.

Since its establishment in 1998, ICANN has operated under a formal contract with the U.S. Department of Commerce, which stipulated the duties and limits that the U.S. government expected ICANN to respect. The Commerce Department did not provide much active oversight, although the need to renew this contract, called the Joint Project Agreement (JPA), helped keep ICANN policies within reasonable bounds. That's why last spring, when the Commerce Department asked for comment on ending the JPA, the U.S. business community opposed the idea.

But the U.S. government's role in ICANN has long been a source of complaint from foreign nations. United Nations conferences have repeatedly voiced concerns about "domination of the Internet by one power" and suggested that management of the system should be handed off to the International Telecommunications Union—a U.N. agency dominated by developing countries. The European Union has urged a different scheme in which a G-12 of advanced countries would manage the Internet.

The Obama administration has declined to endorse such alternatives. Instead it has replaced the latest JPA, which expired Sept. 30, with a vaguely worded "Affirmation of Commitments." In it, ICANN promises to be a good manager of the Internet, and the Commerce Department promises—well, not much of anything. The U.S. will participate in a Governmental Advisory Committee along with some three dozen other nations but claims no greater authority than any other country on the committee, whose recommendations are not binding on ICANN in any case.

An ICANN cut loose from U.S. government oversight will not, for that reason, be free from political pressures. One source of pressure will come from disputes about expanding top-level domain names. For example, would a ".xxx" domain help to isolate pornographic sites in a unique (and blockable) special area, or would it encourage censorship in other domains by suggesting that offensive images only appear there? Should we have ".food" or ".toys" along with ".com" domains? If we do, as the Justice Department warned last year in a letter to Commerce, companies that have invested huge sums to protect their trademarks under ".com" will have to fight for protection of their names in the new domains. Yet strangely, there is not a word in the new plan about protecting trademark rights or other intellectual property interests that might be threatened by new ICANN policies.

Even more disturbing is the prospect that foreign countries will pressure ICANN to impose Internet controls that facilitate their own censorship schemes. Countries like China and Iran already block Web sites they regard as politically objectionable. Islamic nations insist that the proper understanding of international human-rights treaties requires suppression of "Islamophobic" content on the Internet. Will ICANN be better situated to resist such pressures now that it no longer has a formal contract with the U.S. government?

It may be that the Obama administration expects to exert a steadying hand on ICANN in indirect or covert ways. Or here too it may have calculated that winning applause from other nations now is worth taking serious risks in the long run.

Mr. Rabkin is professor of law at George Mason University. Mr. Eisenach is an adjunct law professor at George Mason and chairman of Empiris LLC, which does consulting work for Verisign, an Internet registry.

from the Wall Street Journal, 2009-Sep-27, by L. Gordon Crovitz:

You Commit Three Felonies a Day
Laws have become too vague and the concept of intent has disappeared.

When we think about the pace of change in technology, it's usually to marvel at how computing power has become cheaper and faster or how many new digital ways we have to communicate. Unfortunately, this pace of change is increasingly clashing with some of the slower-moving parts of our culture.

Technology moves so quickly we can barely keep up, and our legal system moves so slowly it can't keep up with itself. By design, the law is built up over time by court decisions, statutes and regulations. Sometimes even criminal laws are left vague, to be defined case by case. Technology exacerbates the problem of laws so open and vague that they are hard to abide by, to the point that we have all become potential criminals.

Boston civil-liberties lawyer Harvey Silverglate calls his new book "Three Felonies a Day," referring to the number of crimes he estimates the average American now unwittingly commits because of vague laws. New technology adds its own complexity, making innocent activity potentially criminal.

Mr. Silverglate describes several cases in which prosecutors didn't understand or didn't want to understand technology. This problem is compounded by a trend that has accelerated since the 1980s for prosecutors to abandon the principle that there can't be a crime without criminal intent.

In 2001, a man named Bradford Councilman was charged in Massachusetts with violating the wiretap laws. He worked at a company that offered an online book-listing service and also acted as an Internet service provider to book dealers. As an ISP, the company routinely intercepted and copied emails as part of the process of shuttling them through the Web to recipients.

The federal wiretap laws, Mr. Silverglate writes, were "written before the dawn of the Internet, often amended, not always clear, and frequently lagging behind the whipcrack speed of technological change." Prosecutors chose to interpret the ISP role of momentarily copying messages as they made their way through the system as akin to impermissibly listening in on communications. The case went through several rounds of litigation, with no judge making the obvious point that this is how ISPs operate. After six years, a jury found Mr. Councilman not guilty.

Other misunderstandings of the Web criminalize the exercise of First Amendment rights. A Saudi student in Idaho was charged in 2003 with offering "material support" to terrorists. He had operated Web sites for a Muslim charity that focused on normal religious training, but was prosecuted on the theory that if a user followed enough links off his site, he would find violent, anti-American comments on other sites. The Internet is a series of links, so if there's liability for anything in an online chain, it would be hard to avoid prosecution.

Mr. Silverglate, a liberal who wrote a previous book taking the conservative position against political correctness on campuses, is a persistent, principled critic of overbroad statutes. This is a common problem in securities laws, which Congress leaves intentionally vague, encouraging regulators and prosecutors to try people even when the law is unclear. He reminds us of the long prosecution of Silicon Valley investment banker Frank Quattrone, which after five years resulted in a reversal of his criminal conviction on vague charges of obstruction of justice.

These miscarriages are avoidable. Under the English common law we inherited, a crime requires intent. This protection is disappearing in the U.S. As Mr. Silverglate writes, "Since the New Deal era, Congress has delegated to various administrative agencies the task of writing the regulations," even as "Congress has demonstrated a growing dysfunction in crafting legislation that can in fact be understood." Prosecutors identify defendants to go after instead of finding a law that was broken and figuring out who did it. Expect more such prosecutions as Washington adds regulations.

Sometimes legislators know when they make false distinctions based on technology. An "anti-cyberbullying" proposal is making its way through Congress, prompted by the tragic case of a 13-year-old girl driven to suicide by the mother of a neighbor posing as a teenage boy and posting abusive messages on MySpace. The law would prohibit using the Internet to "coerce, intimidate, harass, or cause substantial emotional distress to a person." Imagine a law that tried to apply this control of speech to letters, editorials or lobbying.

Mr. Silverglate, who will testify against the bill later this week, tells me he figures that "being emotionally distressed is just part of living in a free society." New technologies like the Web, he concludes, "scare legislators because they don't understand them and want to control them, even as they become a normal part of life."

In a complex world of new technologies, there is more need than ever for clear rules of the road. Americans should expect that a crime requires bad intent and also that Congress and prosecutors will try to create clarity, not uncertainty. Our legal system has a lot of catching up to do to work smoothly with the rest of our lives.

from the Wall Street Journal, 2009-Aug-28, by Hans A. von Spakovsky:

What's Wrong With 'Hillary: The Movie'?
Pornographers have more freedom today than those who want to engage in political speech.

Criticizing a candidate for public office can get you into a great deal of trouble in America these days. Just ask Citizens United, a conservative nonprofit that a D.C. district court ruled in violation of the McCain-Feingold campaign-finance law when it produced a critical, 90-minute documentary about Hillary Clinton during last year's presidential campaign.

The D.C. court ruled that "Hillary: The Movie" was a form of "express advocacy" and therefore, under the rules of McCain-Feingold, could not receive direct corporate funding (the law requires all corporate campaign contributions be made through political action committees). Citizens United appealed, arguing that a pay-for-view, 90-minute film on cable was not subject to the same restrictions as widely broadcast television ads.

Citizens United v. FEC is slated to come before the Supreme Court on Sept. 9. When it does, the Court will have an amicus brief filed by eight former Federal Election Committee (FEC) commissioners, including me, to consider. Together, we have nearly 75 years of combined experience interpreting the restrictions imposed on political activity by federal campaign-finance laws, implementing regulations, and investigating violations. It's clear to us that the D.C. court's decision should be overturned on First Amendment grounds and McCain-Feingold ruled unconstitutional.

This is not the first time we've made this argument. The eight of us filed an amicus brief urging the Supreme Court to overrule two of its prior decisions, Austin v. Michigan State Chamber of Commerce (1990) and McConnell v. FEC (2003). Austin held that corporations, including nonprofits, could be prohibited from making independent expenditures on political activity. McConnell, meanwhile, upheld the prohibition on corporate and labor union "electioneering communications." These were defined as any broadcast ads mentioning federal candidates near elections, even if the ads were about vital issues being voted on in Congress by incumbents who were also running for re-election.

The commissioners make the basic point that these prior decisions by the Supreme Court fundamentally violate the First Amendment and have chilled political speech. But we also argue, based on our extensive experience, that the law and its accompanying regulations are so complex and so confusing that ordinary citizens, and even specialists, have a hard time understanding what's legally permissible and what's not.

The Federal Election Campaign Act (FECA), passed in 1972, is 244 pages of restrictions and requirements. The regulations issued by the FEC are an additional 568 pages. The federal register is filled with 1,278 pages of explanations and justifications from the FEC for its regulations. The FEC has issued almost 1,800 advisory opinions since 1975, trying to explain to a confused regulated community the meaning of various provisions of FECA.

The law and the regulations are a Byzantine labyrinth that burden the ability to participate in political debate and federal elections. Former FEC Commissioner and Chairman David Mason said he spent 10 years wrestling with a law that "became ever more complex, more laden with exceptions, more difficult to apply, and less fair." Rather than crafting another exception, Mr. Mason urges the Supreme Court to "simply recognize the equal First Amendment rights of all speakers." Former FEC Chairman Bradley Smith said that the Supreme Court's prior decisions show that it simply does not "grasp the complexity of the law and the enormous practical burden it places on those who would speak about politics." As a result, Mr. Smith says, "Many don't speak at all, and our society is poorer for it."

As the commissioners remind the Supreme Court, the First Amendment could not be clearer: "Congress shall make no law . . . abridging the freedom of speech." Yet the Supreme Court in the Austin and McConnell cases explicitly approved just such abridgements.

Those cases have also spawned complex, multifactor tests applied by a government bureaucracy to restrict many entities and forms of speech. There are different rules for over 70 different entities, from corporations to partnerships, and the FEC has varying rules for 33 different forms of political speech. Those exceptions mean that while some corporations are prohibited from engaging in political speech, others are not. While General Motors is prohibited, General Electric, which owns NBC and MSNBC, is not because of the exception in the law for political speech by media corporations.

The proponents of these restrictions have completely lost sight of a basic truth: The answer to speech they disagree with is not to restrict that speech, but to answer it with more speech. And corporate speech—including that of nonprofit advocacy organizations like Citizens United or the NRA—is particularly important when members of Congress, as well as the president, have supported policies that would nationalize our health care and create government ownership and control of elements of our economy, including large segments of the financial and automobile industries.

If anyone understands the unworkability of federal campaign-finance laws and the restrictions they impose on fundamental political speech and activity, it's former commissioners who had to enforce the law. Sadly, pornographers in America today have greater freedom than those engaging in political speech.

It's high time the Supreme Court overturn the two badly reasoned prior decisions that led to this squalid result. As noted campaign-finance lawyer Jim Bopp, who drafted the amicus brief on behalf of the commissioners, has said, there is "profound wisdom" in the First Amendment's pristine statement that "Congress shall make no law" abridging freedom of speech. America needs to return to that first and most important principle.

Mr. von Spakovsky, a former commissioner on the Federal Election Commission, is a senior legal fellow at the Heritage Foundation.

from the Associated Press, 2009-Sep-21, by Ricardo Alonso-Zaldivar, with Bruce Schreiner in Louisville, Ky. contributing:

Gov't investigates health insurance company mailer

WASHINGTON – The government is investigating a major insurance company for allegedly trying to scare seniors with a mailer warning they could lose important benefits under health care legislation in Congress.

The Health and Human Services Department launched its investigation of Humana after getting a complaint from Sen. Max Baucus, D-Mont., a senior lawmaker usually viewed as a reliable ally of the insurance industry.

"It is wholly unacceptable for insurance companies to mislead seniors regarding any subject — particularly on a subject as important to them, and to the nation, as health care reform," Baucus said Monday, disclosing the HHS investigation.

Humana Inc., headquartered in Louisville, Ky., is cooperating with the investigation and stopped the mailer earlier this month, company spokesman Tom Noland said Monday.

The Senate committee that Baucus chairs — Finance — will vote this week on a sweeping health care plan that he's proposed to expand coverage and try to control costs. It would cut Medicare and Medicaid spending by about $500 billion over 10 years, but Baucus says that would lead to greater efficiency, not reduced benefits.

"The health care reform bill we released ... strengthens Medicare and does not cut benefits," said Baucus. "From lower prescription drug costs, to free preventive care, to better treatment for chronic conditions, seniors have so much to gain from health reform — and I'm not going to let insurance company profits stand in the way of improving Medicare for seniors."

Humana is one of the largest private carriers serving seniors under a program called Medicare Advantage. About one-fourth of the elderly and disabled people covered under Medicare participate in the Advantage program, which offers a choice of private plans that usually deliver added benefits.

Humana has about 1.4 million Medicare Advantage enrollees, and the program accounts for about half the company's revenue, Noland said.

Government experts say the private plans are being paid too much — about 14 percent more than it costs to care for seniors in traditional Medicare. The Baucus plan — and other proposals — would reduce payments to the plans, and the health insurance industry is fighting back.

The Humana mailer focused squarely on the Medicare Advantage program.

"While these programs need to be made more efficient, if the proposed funding cut levels become law, millions of seniors and disabled individuals could lose many of the important benefits and services that make Medicare Advantage health plans so valuable," it said.

It urged seniors to sign up with Humana for regular updates on the health care legislation, and encouraged them to contact their lawmakers in Washington.

In a warning letter to Humana, HHS said the government is concerned that the mailer "is misleading and confusing" partly because the company's lobbying campaign could be mistaken for an official communication about Medicare benefits.

HHS ordered the company to immediately halt any such mailings, and remove any related materials from its Web site. In the letter, the government also said it may take other action against Humana.

Although most prominent Democrats back a government-sponsored insurance plan to compete with private carriers, Baucus did not include one in his proposal because he doesn't think it can pass the Senate. During the Bush administration, he broke with his party to support a Medicare prescription drug benefit delivered through private insurance plans, with no government role in negotiating prices.

Insurers, however, are pushing back against his plan to revamp health care. Not only would it cut payments to private Medicare plans, but it would also impose a $6-billion annual fee on the industry, partly to recoup profits from an influx of new taxpayer-subsidized customers.

Humana opposes a government-run insurance option, arguing that it would "undermine the coverage that is working today for millions of Americans," Noland said.

Polls show that seniors are more skeptical of the health care overhaul than the U.S. population as a whole.

from the Wall Street Journal, 2009-Sep-22, p.A24:

Baucus Bludgeons Humana
A preview of coming political health-care attractions.

Political intimidation has always been part of the current Congress's health-care strategy: "If you're not at the table, you're on the menu" is tattooed on every lobbyist and industry rep in Washington. But Max Baucus's latest bullying tactics are hard to believe by even these standards, as the Senate Finance Chairman has sicced federal regulators on the insurer Humana Inc. for daring to criticize one part of his health bill.

Earlier this month, Humana sent a one-page letter to its customers enrolled in its Medicare Advantage plans, which offer private options to Medicare beneficiaries. Humana noted that, because of spending cuts proposed by Democrats, "millions of seniors and disabled individuals could lose many of the important benefits and services that make Medicare Advantage health plans so valuable." The Kentucky-based company also urged its customers to contact their Representatives. Pretty tame stuff, as these things go.

Mr. Baucus took it as a declaration of war. He complained to the Centers for Medicare and Medicaid Services, the federal health-care agency, which on Friday duly ordered Humana to cease and desist. CMS claimed the mailer was "misleading and confusing" and told the company it has opened an official probe as to whether the mailer violated laws about how the insurers that manage Advantage plans are allowed to communicate with their customers, as well as other federal statutes.

"Please be advised that we take this matter very seriously and, based upon the findings our investigation, will pursue compliance and enforcement actions," CMS concluded, ominously. Humana could be fined or booted from Medicare Advantage altogether.

"It is wholly inappropriate for insurance companies to mislead seniors regarding any subject—particularly on a subject as important to them, and to the nation, as health-care reform," Mr. Baucus said in a statement yesterday, playing the role of Congressional censor. "The health-care reform bill we released last week strengthens Medicare and does not cut benefits covered under the Medicare program—and seniors need to know that."

In fact, the Baucus draft legislation slashes $123 billion over the next decade from Medicare Advantage, which Democrats hate despite the fact that almost one-fourth of beneficiaries have chosen it over traditional fee-for-service Medicare. One reason seniors like it is because private insurers focus on quality and preventive care and try to manage benefits, as opposed to simply paying bills.

A new study from America's Health Insurance Plans, the industry trade group, finds that seniors on Advantage in California spent 30% fewer days in hospitals over fee-for-service patients, based on federal data. Democrats say that insurers are "overpaid," but the cuts—as Humana correctly noted—mean that seniors may lose this coverage.

Mr. Baucus doesn't want seniors to be educated about these facts, and obviously he's willing to use his enormous power to punish any private company that doesn't affirm his, well, creative version of reality. Nearly half of Humana's yearly revenue comes from Medicare Advantage, and the insurer says that it is complying in full with the CMS investigation. Yesterday, the agency also barred all Advantage insurers from providing similar information to their beneficiaries.

This episode neatly shows how all U.S. health care will operate if Mr. Baucus's bill becomes law. For months Humana and the wider insurance lobby have been among ObamaCare's most prominent cheerleaders, with the exception of Advantage cuts and the public option—even though they'll be converted into government contractors in the business of fulfilling whatever Congress happens to dictate. The insurers are willing to give up their remaining business autonomy because Democrats intend to mandate that all consumers buy their products—but as with Advantage now, that means government will control the funds upon which the insurers' survival depends. They'll have no choice but to genuflect, or else the political class will pull out the tire irons.

Humana merely made the mistake of trying to tell seniors the truth about what will happen to their coverage, and now CEO Michael McCallister had better hire a good team of lawyers. Mr. Baucus and the Obama Administration are out to make him an object lesson to the rest of the business class, and that means they won't stop until Humana cries uncle or is ruined.

from the Wall Street Journal, 2009-Sep-24, p.A20:

Medicare and Gag Orders
Humana gets whacked for telling the truth, AARP gets a pass for spreading falsehoods.

Maybe Senate Finance Chairman Max Baucus should put a gag order on Douglas Elmendorf too. On Tuesday, the Congressional Budget Office director told Mr. Baucus's committee that its plan to cut $123 billion from Medicare Advantage—the program that gives almost one-fourth of seniors private health-insurance options—will result in lower benefits and some 2.7 million people losing this coverage.

Imagine that. Last week Mr. Baucus ordered Medicare regulators to investigate and likely punish Humana Inc. for trying to educate enrollees in its Advantage plans about precisely this fact. Jonathan Blum, acting director of a regulatory office in the Centers for Medicare and Medicaid Services (CMS), said that a mailer Humana sent its customers was "misleading and confusing to beneficiaries, who may believe that it represents official communication about the Medicare Advantage program."

Mr. Blum has also banned all Advantage contractors from telling their customers what Mr. Elmendorf has just told Congress. Mr. Blum happens to be a former senior aide to Mr. Baucus and a health adviser on the Obama transition team.

Meanwhile, we have the case of the Association for the Advancement of Retired Persons (AARP), and its fanciful Medicare claims. The self-styled seniors lobby is using all its money and influence to cheer on ObamaCare, even though polls show that most retired persons oppose it. AARP has spent millions of dollars on its TV ad campaign and bulletins and newsletters to its members, including eight million direct-mail letters over Labor Day. The AARP Web site claims that it is a "myth" that "health care reform will hurt Medicare," while it is a "fact" that "none of the health care reform proposals being considered by Congress will cut Medicare benefits or increase your out-of-pocket costs."

So why hasn't AARP also come under CMS scrutiny? Could that be because AARP, which markets its own branded Advantage plans with United HealthCare that have 1.7 million enrollees, is a reliable liberal ally? Certainly its claims are "misleading and confusing"—given that in this instance it is empirically untrue, unlike Humana's attempt at edification. Seniors might even think AARP's falsehoods represent official communication about the Medicare Advantage program. But don't expect Mr. Baucus or CMS to impose its gag rule on the AARP's pro-ObamaCare advocacy.

We don't think AARP should be muzzled in a political debate, but neither should the insurance industry—especially by an influential Senator getting favors from his crony in a supposedly impartial regulatory agency that has enormous power to harm or destroy private companies. Seniors have a right to know how they may be affected by Washington's health-care planning.

So, for the record, CBO's Mr. Elmendorf says that cuts to Medicare Advantage "could lead many plans to limit the benefits they offer, raise their premiums, or withdraw from the program."

from the Wall Street Journal, 2009-Oct-18:

Gag Order Admission
Humana gets a slap on the wrist for disseminating true information.

There's nothing like a Friday evening news release to hide a Washington embarrassment. In last week's episode, President Obama's health appointees lifted their outrageous gag order against health insurers for the sin of informing their customers about how ObamaCare would affect their insurance.

In September, Humana Inc. sent a mailer to some 900,000 enrollees in its Medicare Advantage plans, the program that gives seniors a choice of private insurance options, warning that spending cuts would result in reduced benefits and some people losing their coverage. The Congressional Budget Office has said the same thing, but the Obama apparat went nuclear. At the behest of Senate Finance Chairman Max Baucus, Medicare's administrators menaced Humana with fines and regulatory punishments, and even told all insurers participating in Advantage to shut up too—or else.

In its Friday ruling, Medicare slapped Humana on the wrist for disseminating information that it claimed was "misleading to beneficiaries"—even though it was perfectly true—but also lifted the gag order. Insurers will be allowed to communicate with enrollees, provided they get permission. This is basically a concession that the critics are right, especially considering that Health and Human Services Secretary Kathleen Sebelius defended the policy as recently as two weeks ago while refusing to answer questions about this raw political coercion from a supposedly impartial federal bureaucracy.

Meanwhile, the Administration is now threatening to strip the insurance industry of its decades-long exemption from antitrust law. This would blow a hole in the industry's profitability, as would ObamaCare for different reasons. The industry now faces a choice of playing ball with Democrats and getting punished, or trying to defeat the bill and being brutalized as an act of political revenge. This is the industry's reward for spending millions to promote "reform" in the hopes of not becoming a political target. It's still a target, and now it's poised to lose the policy fight too.

from the Wall Street Journal, 2009-Oct-3, p.A12:

Google Exceptionalism
Net neutrality mandates make regulation inevitable.

So it turns out that Google's enthusiasm for government-imposed "net neutrality" is qualified. The Internet giant wants cumbersome network management rules applied to everyone—except Google.

Google is one of the industry's most vocal advocates of regulating Internet service providers. It wants to prevent companies like Verizon and AT&T from managing their broadband networks in a way that is optimal for most users, but perhaps not for Google. In order to protect its business model, which involves the use of Internet pipes owned by these other companies (and potential competitors), Google wants broadband networks open to all content without restrictions, even if that means a relatively small number of video streamers and other bandwidth hogs could cause congestion for everyone else.

"Just as telephone companies are not permitted to tell consumers who they can call or what they can say," explains Google on its Web site, "broadband carriers should not be allowed to use their market power to control activity online."

Of late, however, Google is flouting its own net neutrality principles. According to recent media reports, Google Voice, the company's new phone service, is systematically blocking calls to phone numbers in some rural areas. Under so-called intercarrier compensation regulations, phone companies pay high fees to rural operators to connect phone calls. By blocking calls that its competitors are forced by law to connect, Google is saving money. It's also violating the nondiscrimination principle that underlies its net neutrality lobbying.

Citing these news reports, AT&T engaged in a little payback late last week by sending a letter to the Federal Communications Commission calling on regulators to force Google to "play by the same rules as its competitors." Google says that Google Voice is not a traditional phone company and should not be regulated as such. The reality is that Google wants to gain a competitive advantage by providing phone service without having to adhere to the same rules as its rivals.

Our own view is that the rules requiring traditional phone companies to connect these calls should be scrapped for everyone rather than extended to Google. In today's telecom marketplace, where the overwhelming majority of phone customers have multiple carriers to choose from, these regulations are obsolete. But Google has set itself up for this political blowback.

Last week FCC Chairman Julius Genachowski proposed new rules for regulating Internet operators and gave assurances that "this is not about government regulation of the Internet." But this dispute highlights the regulatory creep that net neutrality mandates make inevitable. Content providers like Google want to dabble in the phone business, while the phone companies want to sell services and applications.

The coming convergence will make it increasingly difficult to distinguish among providers of broadband pipes, network services and applications. Once net neutrality is unleashed, it's hard to see how anything connected with the Internet will be safe from regulation.

from TheInquirer.net, 2009-Sep-16, by Nick Farrell:

France surrenders to the music and film industries
Fighting for the right to give up

THE FRENCH GOVERNMENT is falling all over itself to surrender to the music and film industries and disconnect its citizens from the Internet without trial.

The first attempt the French had at negotiating a total capitulation was when it brought in a law saying that if people were caught filesharing three times they would never be allowed an Internet connection ever again.

Imagine the government's horror when the law was constitutionally challenged. It turned out that being garlic-breathed cheese eating surrender monkeys was not actually part of the French Constitution after all and that was just a stereotype invented by roast beef eating Brits who watched too much Red Dwarf.

So then French President Nicolas Sarkozy ordered his crack team of legal eagles to find another way to surrender. Sarkozy likes to hob-nob with movie stars so he has to show the big entertainment businesses he is their friend or he will be off the guest list for some of its bigger events.

The French legislature yesterday passed into law a second version of the ultra-controversial HADOPI "three strikes" law that targets illegal online peer-to-peer file-swappers.

The revised proposal aims to deal with the concerns of the legal sages who sit on France's Constitutional Council, who had objected to the first version of the law.

Now Internet disconnections of up to a year can be ordered by a single judge in a "streamlined" proceeding, while Internet users who fail to "secure" their connections can also be punished if other people use those connections to illegally exchange copyrighted material.

HADOPI 2 was passed by the National Assembly today by a margin of 285-225. The Senate has already passed the legislation.

La Quadrature du Net, a French digital rights group, continues to protest the changes. It says that the new judicial procedure is properly restricted to only a few categories of simple litigation such as traffic regulation.

It fails to guarantee the right to a fair trial. It does not include any contradictory debate or public hearing. The ruling is made without any prior judicial investigation.

It also outlaws the "open WiFi defense", under which an accused file-sharer could simply make clear that anyone could have used his or her Internet connection. Under the new law, all Internet users must keep their broadband connections "secure" and are fully responsible for whatever happens over them.

This is one of the clauses that the French government has not thought out particularly well. While it does close the loophole it does expose its cronies in the business world to litigation. If a war chalker downloads a film from the carpark of a big French company, it will be the big company that will have its Internet connection switched off. No Internet would mean that the big French company would be less likely to pay huge amounts of cash to get Nicolas Sarkozy re-elected again.

It is likely that this law will also be appealed on constitutional grounds. If Sarkozy has finally gotten the legal balance right he will be allowed to surrender and watch his citizens drop off the Internet while he and his nice wife sip cocktails with movie stars at Cannes.

from TheInquirer.net, 2009-Oct-9:

Sarkozy busted with 400 'pirated' DVDs
Conference handout plans go awry

IT WOULD APPEAR that French President Nicolas Sarkozy has been caught out with 400 illegally copied DVDs - of a documentary about himself.

According to the French paper Le Canard Enchaine (The Chained Duck), the president rather fancied himself in a documentary called 'A visage decouvert : Nicolas Sarkozy', done by Galaxie Presse, and wanted to give copies of it to fellow diplomats attending a conference.

But things went agley when the distributor sent him only 50 copies, not enough to go around.

In atypical French fashion, Sarkozy refused to surrender and instead enlisted the help of the presidential AV club, the Service audiovisuel de la presidence de la Republique, to burn off a few hundred copies for him to dish out.

Unfortunately it slipped his mind to get permission from the publisher first.

In true DVD pirate manner they apparently even rejigged the cover, removing the studio's logo and replacing it with their own, but stopped short of photoshopping Sarkozy's head onto the bare chested torso of Vladimir Putin.

For his sake, we hope Sarkozy's own three-strikes policy for illegal filesharing of copyrighted works is applied per case rather than per disc.

from the Washington Examiner, 2009-Aug-30, by Susan Ferrechio:

Reid Wants his local paper to fold

Senate Majority Leader Harry Reid, D-Nev., could be facing one of the toughest re-election battles of his career and while he has pronounced himself ready and eager for the fight, there is evidence the pressure might be getting to him.

Reid last week fully antagonized the Las Vegas Review-Journal Newspaper, which has been critical of him, by reportedly telling its advertising director "I hope you go out of business" while the two shook hands at a Chamber of Commerce event.

Reid then delivered a speech to the Chamber in which he joked that he hopes the Review-Journal can continue to sell advertising because the paper also provides delivery of the Las Vegas Sun, which is more friendly to Reid.

Reid has been suffering from low poll numbers for months, but the most recent survey was particularly devastating, showing the Searchlight native to be trailing two prospective Republican opponents, former University of Las Vegas basketball player Danny Tarkanian and state GOP chairwoman Sue Lowden by 11 points and 5 points, respectively.

Protesters holding "Dump Reid" signs stood outside the Chamber event, according to reporting in the Sun.

The Review-Journal on Sunday called Reid's comments "a full-on threat perpetrated by a bully who has forgotten that he was elected to office to protect Nevadans, not sound like he's shaking them down" and said it was serving Reid notice "that this creepy tactic will not be tolerated."

While Reid may perceive the paper's treatment of him unfair, it employs more than 100 people. The unemployment rate in Las Vegas, meanwhile, jumped this month to more than 13 percent, according to the Sun.

from the New York Times, 2009-Jul-17, by Brad Stone:

Amazon Erases Orwell Books From Kindle

In George Orwell's “1984,” government censors erase all traces of news articles embarrassing to Big Brother by sending them down an incineration chute called the “memory hole.”

On Friday, it was “1984” and another Orwell book, “Animal Farm,” that were dropped down the memory hole — by Amazon.com.

In a move that angered customers and generated waves of online pique, Amazon remotely deleted some digital editions of the books from the Kindle devices of readers who had bought them.

An Amazon spokesman, Drew Herdener, said in an e-mail message that the books were added to the Kindle store by a company that did not have rights to them, using a self-service function. “When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers' devices, and refunded customers,” he said.

Amazon effectively acknowledged that the deletions were a bad idea. “We are changing our systems so that in the future we will not remove books from customers' devices in these circumstances,” Mr. Herdener said.

Customers whose books were deleted indicated that MobileReference, a digital publisher, had sold them. An e-mail message to SoundTells, the company that owns MobileReference, was not immediately returned.

Digital books bought for the Kindle are sent to it over a wireless network. Amazon can also use that network to synchronize electronic books between devices — and apparently to make them vanish.

An authorized digital edition of “1984” from its American publisher, Houghton Mifflin Harcourt, was still available on the Kindle store Friday night, but there was no such version of “Animal Farm.”

People who bought the rescinded editions of the books reacted with indignation, while acknowledging the literary ironies involved. “Of all the books to recall,” said Charles Slater, an executive with a sheet-music retailer in Philadelphia, who bought the digital edition of “1984” for 99 cents last month. “I never imagined that Amazon actually had the right, the authority or even the ability to delete something that I had already purchased.”

Antoine Bruguier, an engineer in Silicon Valley, said he had noticed that his digital copy of “1984” appeared to be a scan of a paper edition of the book. “If this Kindle breaks, I won't buy a new one, that's for sure,” he said.

Amazon appears to have deleted other purchased e-books from Kindles recently. Customers commenting on Web forums reported the disappearance of digital editions of the Harry Potter books and the novels of Ayn Rand over similar issues.

Amazon's published terms of service agreement for the Kindle does not appear to give the company the right to delete purchases after they have been made. It says Amazon grants customers the right to keep a “permanent copy of the applicable digital content.”

Retailers of physical goods cannot, of course, force their way into a customer's home to take back a purchase, no matter how bootlegged it turns out to be. Yet Amazon appears to maintain a unique tether to the digital content it sells for the Kindle.

“It illustrates how few rights you have when you buy an e-book from Amazon,” said Bruce Schneier, chief security technology officer for British Telecom and an expert on computer security and commerce. “As a Kindle owner, I'm frustrated. I can't lend people books and I can't sell books that I've already read, and now it turns out that I can't even count on still having my books tomorrow.”

Justin Gawronski, a 17-year-old from the Detroit area, was reading “1984” on his Kindle for a summer assignment and lost all his notes and annotations when the file vanished. “They didn't just take a book back, they stole my work,” he said.

On the Internet, of course, there is no such thing as a memory hole. While the copyright on “1984” will not expire until 2044 in the United States, it has already expired in other countries, including Canada, Australia and Russia. Web sites in those countries offer digital copies of the book free to all comers.

from the Wall Street Journal, 2009-Jul-13, by Bert Gall and Steve Simpson:

The Media and the First Amendment
The Washington Post scandal is really about double standards.

Our nation's capital is abuzz over the Washington Post's recent indiscretion. The newspaper planned to host a now-canceled salon at the home of Katharine Weymouth, the Post's publisher. For $25,000, lobbyists and corporate executives would be granted exclusive access to members of the Obama administration, Congress, and Post journalists.

Pundits have condemned the Post for acting as an influence peddler. But other news publications routinely host similar events. This shouldn't come as a shock. Media corporations have always had the privilege of influencing politics without the restrictions -- like campaign finance laws -- that other corporations face.

So while this episode has been treated as a scandal of journalistic ethics, it is really about double standards. When other business corporations attempt to influence politics -- by running political ads during elections -- editorial boards rush to condemn the corporations for "buying" elections or "unduly" influencing candidates. We should be concerned, the boards say, because those corporations have too much influence over the political debate. The public needs strict campaign finance laws to protect it from that influence.

The New York Times recently featured an editorial about the Supreme Court's current major campaign finance case, Citizens United v. Federal Election Commission (2009). The editorial counseled the high court against overturning precedent, referring to Austin v. Michigan Chamber of Commerce (1990). That case allows the government to prevent corporations from spending money on electoral advocacy. According to the Times, eliminating the government's power to ban corporate political speech "would be a disaster for democracy."

But if excessive influence is a reason to censor the speech of every other kind of corporation, then it is also a reason to censor the speech of media corporations. After all, the media spend millions of dollars each year on news stories about candidates and editorials endorsing them. This press is worth a lot. For example, the Washington Post's endorsement of Creigh Deeds is widely credited as the biggest factor in his rise from obscurity to victory in Virginia's Democratic gubernatorial primary this year.

So where are the editorials calling for limits on the amounts of "money" -- in the form of coverage and editorials -- media companies devote to candidates?

Of course, you'll hear no such thing from the nation's newspapers and media outlets. Media companies are exempt from campaign finance laws. Many in the press think that the First Amendment entitles them to special protections that don't apply to anyone else.

This is wrong. The Supreme Court has repeatedly made clear that the media's right to free speech is no greater than anyone else's. And in Austin and other campaign finance cases, the Supreme Court noted that the media's exemption from campaign finance laws was discretionary, not mandatory.

In short, the press's favored status is only as strong as Congress says it is, at least under current First Amendment jurisprudence. If, in the wake of the Post scandal, the public begins to believe that media companies are as corrupt as the press claims other corporations are, Congress's view on the matter could change. Alternatively, Congress may come up with some other reason to start limiting the freedom of the press. Congress is currently considering a bill that would throw struggling newspapers an economic lifeline by allowing them to operate as nonprofits -- thereby making their advertising and subscription revenue tax-exempt. The catch? Newspapers that take the deal would no longer be able to endorse political candidates.

This precarious position -- free speech at Congress's discretion -- is not exactly a recipe for a strong and independent press. It's tempting to think that media companies that have called for limits on everyone else's speech will ultimately get what they deserve when Congress gets around to censoring theirs. But that would be a mistake.

The press remains one of the most important bulwarks against tyranny. The solution is to protect free speech on principle, regardless of the identity of the speaker. Banning a corporation from spending its own money for political advocacy is censorship, plain and simple. The sooner the press understands this, the safer its rights -- and ours -- will be.

Messrs. Gall and Simpson are senior attorneys at the Institute for Justice.

from the Volokh Conspiracy, 2009-Apr-30, by Eugene Volokh:

Federal Felony To Use Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech?

That's what a House of Representatives bill, proposed by Rep. Linda T. Sanchez and 14 others, would do. Here's the relevant text:

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both....

["Communication"] means the electronic transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received; ...

["Electronic means"] means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.

1. I try to coerce a politician into voting a particular way, by repeatedly blogging (using a hostile tone) about what a hypocrite / campaign promise breaker / fool / etc. he would be if he voted the other way. I am transmitting in interstate commerce a communication with the intent to coerce using electronic means (a blog) "to support severe, repeated, and hostile behavior" -- unless, of course, my statements aren't seen as "severe," a term that is entirely undefined and unclear. Result: I am a felon, unless somehow my "behavior" isn't "severe."

2. A newspaper reporter or editorialist tries to do the same, in columns that are posted on the newspaper's Web site. Result: Felony, unless somehow my "behavior" isn't severe.

3. The politician votes the wrong way. I think that's an evil, tyrannical vote, so I repeatedly and harshly condemn the politician on my blog, hoping that he'll get very upset (and rightly so, since I think he deserves to feel ashamed of himself, and loathed by others). I am transmitting a communication with the the intent to cause substantial emotional distress, using electronic means (a blog) "to support severe, repeated, and hostile behavior." (I might also be said to be intending to "harass" -- who knows, given how vague the term is? -- but the result is the same even if we set that aside.) Result: I am a felon, subject to the usual utter uncertainty about what "severe" means.

4. A company delivers me shoddy goods, and refuses to refund my money. I e-mail it several times, threatening to sue if they don't give me a refund, and I use "hostile" language. I am transmitting a communication with the intent to coerce, using electronic means "to support severe, repeated, and hostile behavior." Result: I am a felon, if my behavior is "severe."

5. Several people use blogs or Web-based newspaper articles to organize a boycott of a company, hoping to get it to change some policy they disapprove of. They are transmitting communications with the intent to coerce, using electronic means "to support severe, repeated, and hostile behavior." Result: Those people are a felon. (Isn't threatening a company with possible massive losses "severe"? But again, who knows?)

6. John cheats on Mary. Mary wants John to feel like the scumbag that he is, so she sends him two hostile messages telling him how much he's hurt her, how much she now hates him, and how bad he should feel. She doesn't threaten him with violence (there are separate laws barring that, and this law would apply even in the absence of a threat). She is transmitting communications with the intent to cause substantial emotional distress, using electronic means "to support severe, repeated, and hostile behavior." Result: Mary is a felon, again if her behavior is "severe."

The examples could be multiplied pretty much indefinitely. The law, if enacted, would clearly be facially overbroad (and probably unconstitutionally vague), and would thus be struck down on its face under the First Amendment. But beyond that, surely even the law's supporters don't really want to cover all this speech.

What are Rep. Linda Sanchez and the others thinking here? Are they just taking the view that "criminalize it all, let the prosecutors sort it out"? Even if that's so, won't their work amount to nothing, if the law is struck down as facially overbroad -- as I'm pretty certain it would be? Or are they just trying to score political points here with their constituents, with little regard to whether the law will actually do any good? I try to focus my posts mostly on what people do, not on their motives, but here the drafting is so shoddy that I just wonder why this happened.

from the Washington Post, 2009-Apr-12, p.B3, by Jonathan Turley:

The Free World Bars Free Speech

For years, the Western world has listened aghast to stories out of Iran, Saudi Arabia and other Middle Eastern nations of citizens being imprisoned or executed for questioning or offending Islam. Even the most seemingly minor infractions elicit draconian punishments. Late last year, two Afghan journalists were sentenced to prison for blasphemy because they translated the Koran into a Farsi dialect that Afghans can read. In Jordan, a poet was arrested for incorporating Koranic verses into his work. And last week, an Egyptian court banned a magazine for running a similar poem.

But now an equally troubling trend is developing in the West. Ever since 2006, when Muslims worldwide rioted over newspaper cartoons picturing the prophet Muhammad, Western countries, too, have been prosecuting more individuals for criticizing religion. The "Free World," it appears, may be losing faith in free speech.

Among the new blasphemers is legendary French actress Brigitte Bardot, who was convicted last June of "inciting religious hatred" for a letter she wrote in 2006 to then-Interior Minister Nicolas Sarkozy, saying that Muslims were ruining France. It was her fourth criminal citation for expressing intolerant views of Muslims and homosexuals. Other Western countries, including Canada and Britain, are also cracking down on religious critics.

Emblematic of the assault is the effort to pass an international ban on religious defamation supported by United Nations General Assembly President Miguel d'Escoto Brockmann. Brockmann is a suspended Roman Catholic priest who served as Nicaragua's foreign minister in the 1980s under the Sandinista regime, the socialist government that had a penchant for crushing civil liberties before it was tossed out of power in 1990. Since then, Brockmann has literally embraced such free-speech-loving figures as Iranian President Mahmoud Ahmadinejad, whom he wrapped in a bear hug at the U.N. last year.

The U.N. resolution, which has been introduced for the past couple of years, is backed by countries such as Saudi Arabia, one of the most repressive nations when it comes to the free exercise of religion. Blasphemers there are frequently executed. Most recently, the government arrested author Hamoud Bin Saleh simply for writing about his conversion to Christianity.

While it hasn't gone so far as to support the U.N. resolution, the West is prosecuting "religious hatred" cases under anti-discrimination and hate-crime laws. British citizens can be arrested and prosecuted under the 2006 Racial and Religious Hatred Act, which makes it a crime to "abuse" religion. In 2008, a 15-year-old boy was arrested for holding up a sign reading "Scientology is not a religion, it is a dangerous cult" outside the organization's London headquarters. Earlier this year, the British police issued a public warning that insulting Scientology would now be treated as a crime.

No question, the subjects of such prosecutions are often anti-religious -- especially anti-Muslim -- and intolerant. Consider far-right Austrian legislator Susanne Winter. She recently denounced Mohammad as a pedophile for his marriage to 6-year-old Aisha, which was consummated when she was 9. Winter also suggested that Muslim men should commit bestiality rather than have sex with children. Under an Austrian law criminalizing "degradation of religious doctrines," the 51-year-old politician was sentenced in January to a fine of 24,000 euros ($31,000) and a three-month suspended prison term.

But it is the speech, not the speaker, that's at issue. As insulting and misinformed as views like Winter's may be, free speech is not limited to non-offensive subjects. The purpose of free speech is to be able to challenge widely held views.

Yet there is a stream of cases similar to Winter's coming out of various countries:

In May 2008, Dutch prosecutors arrested cartoonist Gregorius Nekschot for insulting Christians and Muslims with a cartoon that caricatured a Christian fundamentalist and a Muslim fundamentalist as zombies who meet at an anti-gay rally and want to marry.

Last September, Italian prosecutors launched an investigation of comedian Sabina Guzzanti for joking about Pope Benedict VXI. "In 20 years, [he] will be dead and will end up in hell, tormented by queer demons, and very active ones," she said at a rally.

In February, Rowan Laxton, an aide to British Foreign Secretary David Miliband, was arrested for "inciting religious hatred" when, watching news reports of Israel's bombardment of Gaza while exercising at his gym, he allegedly shouted obscenities about Israelis and Jews at the television.

Also in February, Britain barred controversial Dutch politician Geert Wilders from entry because of his film "Fitna," which describes the Koran as a "fascist" book and Islam as a violent religion. Wilders was declared a "threat to public policy, public security or public health."

And in India, authorities arrested the editor and publisher of the newspaper the Statesman for running an article by British journalist Johann Hari in which he wrote, "I don't respect the idea that we should follow a 'Prophet' who at the age of 53 had sex with a 9-year-old girl, and ordered the murder of whole villages of Jews because they wouldn't follow him." In India, it is a crime to "outrage religious feelings."

History has shown that once governments begin to police speech, they find ever more of it to combat. Countries such as Canada, England and France have prosecuted speakers and journalists for criticizing homosexuals and other groups. It's the ultimate irony: free speech curtailed for the sake of a pluralistic society.

Even countries that the United States has helped liberate have joined the assault on free speech, rejecting the core values of our First Amendment. Afghan journalist Sayed Perwiz Kambakhsh was sentenced to death under Sharia law last year just for downloading Internet material on the role of women in Islamic societies that authorities judged to be blasphemous. The provincial deputy attorney general, Hafizullah Khaliqyar, has been quoted as saying: "Journalists are supporting Kambakhsh. I will arrest any journalist trying to support him after this."

Not only does this trend threaten free speech, freedom of association and a free press, it even undermines free exercise of religion. Challenging the beliefs of other faiths can be part of that exercise. Countries such as Saudi Arabia don't prosecute blasphemers to protect the exercise of all religions but to protect one religion.

Religious orthodoxy has always lived in tension with free speech. Yet Western ideals are based on the premise that free speech contains its own protection: Good speech ultimately prevails over bad. There's no blasphemy among free nations, only orthodoxy and those who seek to challenge it.

After years of international scorn, the United States can claim the high ground by supporting the right of all to speak openly about religion. Otherwise, free speech in the West could die with hope of little more than a requiem Mass.

Jonathan Turley is a law professor at George Washington University.

from the Telegraph of London, 2009-May-11, by Boris Johnson:

Michael Savage poses no risk to British security so why won't MPs say so?
It is shocking that not a single MP has stood up to defend free speech, says Boris Johnson.

About 10 years ago my brother-in-law was giving me a lift through the early morning Washington traffic when he suddenly gave a whoop of joy. "It's Howie!" yelled Ivo, turning up the radio. "We gotta listen to Howie!" And it was with mounting disbelief that I listened to the next 20 minutes of the Howard Stern show, a shameless and cynical attempt to scandalise the ear.

That morning Howard was appealing to his listeners to ring in with the most tear-jerking hard-luck story. In return he was offering a nude massage at the hands of an attractive nude masseuse. In a display of Oprah Winfreyesque exhibitionism, the audience was competing for that massage. We heard of divorces, and bereavements, and embarrassing disfigurements. But the winner (I advise sensitive readers to faint now) was a man who rang in to say that he had just been diagnosed with cancer, and might lose his gonads, but had not yet had the courage to tell his girlfriend.

Howard Stern pounced. "What's her number?" he said. With lightning efficiency his producers patched the caller through to his girlfriend, and soon she was being told – live on air – that there was good news and bad news.

The bad news was that her boyfriend had cancer, and the good news was that he was the winner of a nude massage. The poor woman gasped and sobbed. I sat there in exactly the state desired by the producers of the Howard Stern show – appalled, disgusted, but also thrilled by the horror of what was apparently (and I stress apparently) taking place on the radio.

We just don't have shows like this in Britain, I said to Ivo. That's right, he said, and he told me about the shock jocks. He explained the tactics of men such as Stern and Rush Limbaugh, how they shamelessly chased after ratings by causing outrage, how they goosed the secret prejudices of their listeners. Some people tuned in because they actually agreed with what was being said. Most people just enjoyed the theatre, the vehemence, the provocation.

These shock jocks were national institutions, with millions of weekly listeners. They were a new and important part of the American constitution, and that is my first objection to the utterly demented decision by Jacqui Smith's Home Office to announce that Michael Savage, America's third most popular radio show host, is banned from entering this country. It just makes us look so infantile, so pathetic.

Every day the American airwaves are churned by the paranoid rantings of Michael Savage and his kind. Has this stuff warped America, or deformed its political psyche? On the contrary, the Americans have just had the good sense to elect a supremely gifted and eloquent black man – when the prospect of a black British prime minister still seems some way off. What are we, some sort of kindergarten that needs to be protected against these dangerous American radio shows? Does Jacqui Smith think we are all dimwits, who can't tell when a man like Savage is talking rubbish? Why can America take it, and we can't?

The answer is that America still has a constitutional protection of free speech, and I have been amazed, over the last few days, to see how few people in this country are willing to stick up for that elementary principle. Across Fleet Street, swords have stuck in their scabbards, swords that normally leap to the defence of liberty.

I am not aware that a single MP has spoken on this subject, apart from David Winnick, who went on Newsnight to agree with Jacqui Smith. Harold Wilson once called Mr Winnick "the stupidest man in the House of Commons", a reputation he did nothing to shake with his performance. Mr Winnick said that Savage should be banned from this country for claiming that many children with autism were "brats". That is indeed an odious and ill-informed opinion. But surely it should be blindingly obvious even to David Winnick that it is possible to despise the things that Michael Savage says, and yet to think that it is very odd indeed to bar him from this country.

Such is the terror of being associated with Mr Savage's ugly ravings, that no one dares speak up for common sense and proportionality. To exclude someone from entering this country is a serious act of state. We have not been told how the decision was taken. We do not know which criteria were applied.

All we can say for certain is that there was no attempt to consult our elected representatives in the House of Commons, engrossed as they now are in defending their expenses, and it looks very much as though the list of banned persons was rushed out to cover up the hoo-ha over the Home Secretary's taxpayer-funded bath plug.

Michael Savage has said ignorant and unpleasant things about gay people, autism and Muslims. But it is far from clear that he would be in breach of any law, even in this country. The world is full of loudmouth media berks with views that we would all like to keep to themselves, but we can't ban them all from entering Britain.

Perhaps Jacqui Smith thinks that it "sends out a signal" about the kind of Britain we want. On the contrary, it reinforces a culture – created by this Labour Government, and its addiction to political correctness – where people are increasingly confused and panic-stricken about what they can say and what is forbidden, a culture where a police officer can seriously think he is right to arrest a protester for calling a police horse "gay". Our courts and tribunals are clogged with people claiming to have suffered insults of one kind or another, and a country once famous for free speech is now hysterically and expensively sensitive to anything that could be taken as a slight.

The final absurdity of the Home Office ban is that huge numbers of British people have now listened to or watched Mr Savage, when they might otherwise have rubbed along without even knowing he existed. They will have found a boorish, excitable man who addresses his callers as "moron", who is much less gifted than Howard Stern and who is certainly no threat to this country.

[Boris Johnson is the mayor of London. -AMPP Ed.]

from the Washington Post, 2009-May-6, by Karla Adam:

Britain Bans 16 for 'Fostering Extremism'
Radio Host Savage Among 6 Americans

LONDON, May 5 -- The British government on Tuesday named 16 people who have been banned from entering Britain for "fostering extremism or hatred," including Muslim extremists, a former Ku Klux Klan grand wizard, a U.S. radio talk show host and a Kansas preacher.

Home Secretary Jacqui Smith, who is responsible for domestic security, said she decided to make the names public to show the kind of behavior that Britain is "not willing to have in this country."

The list includes six Americans. Perhaps the most prominent is Michael Savage, a nationally syndicated conservative radio host who has made controversial remarks about immigrants and Muslims, such as urging Americans to "burn the Mexican flag on your street corner" and saying that "when I see a woman walking around with a burqa, I see a Nazi."

Smith told the BBC that Savage was "someone who has fallen into the category of fomenting hatred, of such extreme views and expressing them in such a way that it is actually likely to cause inter-community tension or even violence if that person were allowed into the country."

Savage reacted sarcastically.

"Darn! And I was just planning a trip to England for their superior dental work and cuisine," he told the conservative Web site WorldNetDaily.com.

He added that he has not actually been to Britain in about two decades and has no plans to return, except perhaps to take Smith to court. "I want to sue the British home secretary for defamation, for linking me up with murderers because of my opinions, my writings, my speaking -- none of which have advocated any violence, ever," he said.

The Rev. Fred W. Phelps Sr. and his daughter Shirley Phelps-Roper of the Kansas-based Westboro Baptist Church also are unwelcome in the United Kingdom. The pair, who have picketed at funerals carrying placards with anti-gay slogans, are banned for "fostering hatred," the Home Office said.

The other Americans on the list are Eric Gliebe, described by the Home Office as a distributor of "racist leaflets"; Abdul Ali Musa, a Muslim activist; and former Klan leader Stephen Donald Black.

"Coming to the U.K. is a privilege and I refuse to extend that privilege to individuals who abuse our standards and values to undermine our way of life," Smith said in a statement. "Therefore, I will not hesitate to name and shame those who foster extremist views as I want them to know that they are not welcome here."

After suicide bombers killed 52 people on London's subway and bus system on July 7, 2005, the British government began barring entry to individuals who promote hatred, terrorist violence or serious criminal activity. In the last four years, 101 people have been excluded.

The 16 people named Tuesday are among 22 banned in the last five months; six were not named because it was not "in the public interest," the Home Office said.

Artur Ryno and Pavel Skachevsky, skinhead gang leaders who were sentenced to prison in Russia last December for their part in 20 racially motivated murders, were banned. So, too, were Islamic preachers Amir Siddique, Safwat Hijazi and Yunis Al Astal.

Some British civil libertarians found the list puzzling.

"How are these people selected? There's no process here, people aren't accused of a specific crime. It's deeply worrying," said Padraig Reidy, news editor of Index of Censorship, a London periodical that campaigns for freedom of expression.

He added that the list is so "bizarrely eclectic" that "you have to wonder if there was a deliberate move to make it eclectic, as if to say it's not Islamists being picked out."

Asked whether a radio talk show host and a convicted murderer constitute similar threats to British society, a spokesman for the Home Office said that each individual "is looked at on a case-by-case basis" and that "names can drop off the list" if individuals "can prove they no longer hold extreme views."

from PCMag.com, 2009-May-19, by John C. Dvorak:

The RIAA Has Got to Stop

According to a study done by the BBI Norwegian School of Management, those who freely download music from file-sharing sites and elsewhere buy ten times more music (yes, they actually pay for it) than people who do not participate in file-sharing systems. In fact, the figure that the report cites for the amount spent by the file-sharing subculture is so high that the record industry doesn't believe it. Well, I sure do, mainly because of an observation I made back in the late 1990s. And I've harped on this observation ever since. This research just confirms my suspicions.

The simple fact is that during the Napster era—a period in which there was no significant musical movement that would trigger any excitement in the business—CD sales increased. As Napster got bigger, sales continued to increase. As Napster was shut down, you could see CD sales decline, and once they put the lid on open file-sharing, the industry went into a tailspin. I never believed this to be a coincidence.

The RIAA and the music industry in general blamed the tailspin on Napster and piracy, harping on the concept of "stealing." The overlooked fact in all this was that with the advent of national radio syndicates and the niche programming that began to flourish in the '90s, people were not easily introduced to new music. There were fewer ways to discover bands and music you liked so that you could go buy those CDs in the first place. This coincided with the demise of the disc jockey (a music nut who kept tabs on trends). The record industry was essentially doomed at this moment of change.

With its ability to show and share collections of music, Napster became the ersatz virtual DJ, letting you self-select bands and singers who appealed to your individual taste. You did this by looking at the collections of like-minded individuals using the system. And in many ways, except for the downloading time, it was more efficient than radio since you didn't have to slog through commercials and could skip a track not to your liking.

No wonder CD sales increased and business was on the upswing. But apparently not a single person working at the decision-making levels of the recording industry understood the sociology or the mechanism—and that's still the case.—Next: Simple Question >

I ask this simple question: If there's a band out there whose CD I would buy, how am I supposed to discover this band? Tell me how! Is Rush Limbaugh going to play them?

The current mechanism for discovery is arcane and getting worse by the day, as thousands of incredibly mediocre musicians muddy the water with MySpace pages, free downloads, and Web sites. The worst bands of the old punk-rock era sound like Mozart compared with some of the no-talents flooding the market with their wailing.

The music industry, having painted itself into a corner, has decided to take the easy way out. The labels identify the very few highly promotable acts and pump all their resources into them. Thus we end up with the Britney Spears era. And while these essentially Broadway products do sell CDs and concert tickets, they're not refining musical taste or helping the market for music as a whole.

So the music industry hopes to survive by suing into oblivion the file-sharers, who are, coincidentally (as mentioned earlier), the only ones supporting the industry by buying CDs. The irony of this is too rich to ignore. It's just funny, really, kind of like chopping off your legs because you're tired of their following you around.

Oh, and by the way, back in the '90s, when Napster was helping CD sales increase, the industry was told a pay-for-downloading model would work, too. They didn't see how. What a bunch of boneheads.

from MarketWatch.com, 2009-May-7, by Therese Poletti:

Fed scrutiny of Google confirms its growing power
Commentary: Search behemoth has become the new Microsoft

SAN FRANCISCO -- For a company whose slogan is "don't be evil," Google Inc. is becoming almost a privatized version of the dreaded Big Brother from George Orwell's "1984."

But the search engine behemoth staunchly believes that by storing, scanning, photographing and then digitizing everything that goes through its dominant search engine and its vast number of free applications, the human race will benefit. Its goals are altruistic.

In recent weeks, though, two separate antitrust inquiries under the new administration confirm what many in Silicon Valley have theorized for awhile -- Google is now the biggest and fiercest tech power to be reckoned with, and it has become too powerful.

That view also has been percolating on Capitol Hill. President Barack Obama's antitrust chief, Christine Varney, gave a window into her thinking last summer in a panel discussion, before she was named to her position.

"For me, Microsoft is so last century. They are not the problem," Varney reportedly said, adding that Mountain View, Calif.-based Google "has acquired a monopoly in Internet online advertising."

Many in the valley were not surprised when the Federal Trade Commission was said to be investigating the fact that two directors sit on both the boards of Apple Inc. and Google. Eric Schmidt, Google's CEO, is on Apple's board and the two are increasingly becoming competitors in the arena of smart phones. Arthur Levinson, the former CEO of Genentech Inc., is also on both boards. See full story.

"I think potential competitors are raising these issues," said Rob Enderle, analyst with the Enderle Group. "The DOJ and FTC are being much more proactive."

Role reversal

One competitor squawking about Google's increasingly dominant position is, ironically, Microsoft Corp., the target of U.S. antitrust litigation over its monopoly power in PC software for years.

Microsoft, whose attempt to buy Yahoo Inc. was rebuffed, called on its now vast array of Washington connections and worked behind the scenes to halt Google's search deal with Yahoo late last year. See story here.

And the New York Times reported late last month that the Justice Department is investigating Google's settlement last October with authors and book publishers for its possible antitrust implications. In the deal, Google will get exclusive rights to millions of so-called "orphan books," whose authors cannot be found. See settlement story here.

"Google is clearly on many people's minds as a result of the Google books thing," said Gary Reback, who just published a book, "Free the Market! Why Only Government Can Keep the Marketplace Competitive." Reback, a Silicon Valley attorney, is known for spearheading efforts that led to the federal lawsuit against Microsoft.

"It reminds me of the early 1990s, and Microsoft had just dispatched its horizontal competitors," he said. Reback added that even though new Yahoo CEO Carol Bartz is doing everything to rejuvenate the Internet pioneer, the battle is over.

Microsoft can't catch up

Now, Google has dispatched its own direct competitors, Reback believes, adding that Microsoft cannot catch up in the area of Internet search at this point. "They (Google) have gone from being David to being Goliath," Reback added.

A few differences, though, can make things go another way for Google. The U.S. seems to be beginning inquiries earlier in the competitive cycle than it did with Microsoft. Back in the late 90s, the company already had established an iron-clad hold of the personal computer operating system market and had pretty much dispatched with Netscape as a potential rival in the Internet browser market.

Another difference between Microsoft's battles with regulators and Google's situation is that Google develops technology that most people love and are loathe to give up.

It's hard to find anyone who does not use the Google search engine every day. "Google it" has become part of our everyday vernacular. Unlike Microsoft's Internet Explorer browser, foisted upon computer users via bundling relationships with PC makers, Google has become the dominant search engine because it is usually quite good.

'Burglar's dream'

Still, some consumers are waking up to the power that Google holds and the potential dangers associated with its information collecting. A small group of neighbors in a well-to-do U.K. suburb formed a human chain to stop a Google Street View car from driving through their neighborhood. One neighbor described it as a "burglar's dream."

A Google executive responded blithely in an interview with the BBC that anyone can remove the photos of their home from Google Street View, simply by filling out the "report a problem" section. He also noted that the shots on Street View are not live, implying they are not a privacy threat. Still, hundreds have removed their houses from Google Street View in the U.K. since its recent launch.

The company's pact with authors and publishers raised eyebrows because it is putting more information under Google's control.

"They are aggregating a tremendous amount of power," Enderle said.

Google has surely been put on notice, but it is not clear that anything can stop it now, or if users even want that to happen.

from TheRegister.co.uk, 2009-May-11, by Bill Ray:

Apple: No Jesus on the Jesus Phone
Me Not So Holy

Continuing their policy of random offence, Apple has rejected an application that places the user's face onto religious figures, while changing their mind on the Nine Inch Nails and allowing a test for manic depression.

Me So Holy puts a photograph of the user's choice into the face of a holy figure, much like a sea-front cut out - only even less risqué. But too rich for the boys in Cupertino who rejected the app on the grounds that it "contains objectionable content":

The same application using animals, from the same publisher, is selling fine so it seems it's the pictures of religious figures that has Apple upset.

Until recently, Apple was also upset with Trent Reznor, but changed its mind when the man who is the Nine Inch Nails threatened to take his Nine Inch Nails application into the world of jail-broken phones, as well as pointing out that the content to which Apple was objecting wasn't part of the app, but could be downloaded though it, setting a dangerous precedent.

If all this iPhone nonsense is getting you down then then perhaps you should get a copy of "Sad Scale 1.0," the only software for your iPhone designed to diagnose clinical depression. Not only can you run through questions created to diagnose your condition - perhaps brought on by failure to get your own application through Apple's labyrinthine certification procedures - but you can e-mail them directly to your doctor who will no-doubt be delighted to receive the details. There's nothing doctors like more than a bit of IT-managed self-diagnosis.

from iLounge.com, 2009-May-11, by Charles Starrett:

Apple rejects BitTorrent control app Drivetrain [Updated]

Apple has rejected iPhone developer Maza Digital's Drivetrain application, a remote control for Transmission, a BitTorrent client for Mac OS X and other platforms. After an initial email stating that Drivetrain required “unexpected additional time for review,” Maza then received a rejection email from Apple, stating that “this category of applications is often used for the purpose of infringing third party rights. We have chosen to not publish this type of application to the App Store.”

Calling the rejection “ridiculous,” Maza notes that “a BitTorrent client or the BitTorrent protocol are not illegal (and does not infringe on third party rights),” and points out that Drivetrain does not download anything itself, instead allowing users to manage the activity of Transmission, including controls for stop, start, and delete; while it allows users to upload .torrent files to Transmission, it does so by sending links to Transmission instead of downloading/uploading files itself. Maza suggests that Apple “seems to have decided that any app that has anything to do with BitTorrent (even if the app does not download/upload anything!) is treated as doing something that `is often used for the purpose of infringing third party rights,' and will therefore likely be rejected.”

Update: iPhone developer David Muzi contacted iLounge to point out that his iPhone and iPod touch RSS application Trackr, currently available on the App Store, also lets users remotely queue torrents to start downloading to a computer running uTorrent or Transmission—functionality similar to what Apple rejected in DriveTrain. Trackr sells for $2.99.

from news.CNet.com, 2009-Apr-15, by Stephanie Condon:

New Net taxes amid taxing times?

Because of quirks in many state laws, sales taxes may be levied on CDs sold in storefronts but not on iTunes and other digital downloads. It's a situation that recession-weary, tax-hungry politicians are hoping to change.

A growing number of states are considering laws to tax digital goods, such as iTunes songs, Amazon MP3s, or electronic books. Yet at a time when governments say they want to encourage broadband adoption and the development of a low-carbon economy, opponents say taxing digital goods sends exactly the wrong message.

Mississippi is one of the latest states to write into law a tax on digital products. The measure, which was adopted mid-March and goes into effect July 1, imposes a sale and use tax on specified digital products--including digital audio-visual works such as movies, digital audio works such as ringtones, and digital books.

Republican Gov. Haley Barbour endorsed the legislation via Twitter. "On HB 1461, I support this bill and here's why: This bill will treat Internet sales like catalog sales making it a level playing field," he said on March 11.

Including Mississippi, at least 18 states claim they have the authority to collect taxes on digital goods, and more are likely to join them.

On March 12, a bill was introduced in the North Carolina general assembly "to modernize the sales and use tax statutes by treating music, movies, books, and computer software that are delivered electronically the same as those that are purchased in a tangible medium."

A digital goods tax measure was also introduced in the Minnesota House of Representatives in late March. The bill could raise the state more than $8.2 million in 2010 through 2013, according to the Minnesota Department of Revenue (PDF).

States such as Washington and Vermont are also considering such measures, according to Stephen Kranz, an attorney at the Sutherland law firm who represents companies in the digital media industry.

The idea isn't popular everywhere. A proposal to tax digital goods in New York died this month when it was left it out of the state budget.

Rob Atkinson, the president of the Information Technology and Innovation Foundation, said that policy makers should distinguish between digital goods and digital services in their tax laws.

"A service would be someone designing your Web site for you," Atkinson said. "Whether they design it from a thousand miles away or in your office is irrelevant. On the other hand, if someone is buying (music online), it should be treated in the same way as a physical analog in the economy."

"I don't think most policy makers think about it that way," he added.

The Washington state bill would clearly tax digital services as well as what's typically considered digital goods, Kranz said. The Streamlined Sales Tax Project, a multistate effort to develop uniform standards for taxation, adopted in 2007 a specific definition of digital products, along with procedures for how they should be taxed.

Location, location, location

A uniform definition across states would make the taxes less burdensome to merchants, Atkinson said.

"There has to be some easy to use plug-in software...so each seller doesn't have to go through this accounting nightmare," of determining the taxes due in each state, he said.

However, some proposed laws such as Minnesota's would not apply to online merchants based outside the state, Kranz said. That's because under the legal concept of "nexus," a state generally may only tax a company that has a physical business presence within the state's borders--though a state may apply a "use tax" for goods coming into the state from elsewhere.

Those states that are not including a use tax in their proposals are "'discriminating against their own digital community," Kranz said. "If I'm a consumer and I have a choice between two Web sites and one charges tax and one doesn't, which one do you think I'm going to purchase from?"

In fact, North Dakota Gov. John Hoeven on March 19 signed into law a measure to explicitly exempt digital goods from taxes for that reason.

"I think it's important we send a message to the world of digital products that this is a state that's favorable to their interests," Dwight Cook, the state senator who introduced the tax exemption bill, told CNET News in January.

The tech industry has also been advocating for the government to promote the use of information and communications technology as a means of creating a more energy efficient economy--a goal that may be undermined by digital goods taxes, according to some.

"The digital economy is growing fast, and the tiny carbon footprint of downloads is something that benefits all of us," said Steve DelBianco, executive director of NetChoice. "Digital downloads are the most environmentally responsible way to get movies, music and software, and tax policy is one the ways we promote environmentally sound decisions."

Digital goods taxes may be particularly unappealing to consumers on April 15, DelBianco said.

"Writing a fat tax check is particularly painful when your home (value) and savings have declined so deeply, and the idea of facing new taxes on digital goods makes that pain last all year long," he said.

from the Daily Emerald, 2009-May-4, by Dan Lawton:

A new Google order

The best books ... are those that tell you what you know already.

- George Orwell

If you Google the word "Google," you get 2,650,000,000 results. If you Google "Google, monopoly," 3,210,000 items are returned. If you Google "Google, Orwellian nightmare, digital apocalypse, corporate intellectual engineering," the harvest is much more limited; only 1,280 matches appear.

These results, the product of complicated algorithms, exist for one reason: Google allows them to. The moment it decides this information is either irrelevant or unsavory, it can easily be buried deep into the black hole of cyberspace where no one - not even an errant bottom-feeder - can find it.

Of course, the folks at Google don't do this; it's not their business plan. What they want, at the moment, is to acquire more information, not bury it. But imagine a future in which all information is stored, displayed, filtered and produced by one source: Google. Imagine a future in which print books cease to exist - it's likely on the horizon - and every piece of literature from Plato's "The Republic" to your calculus textbook exists in a digital format with one monolithic gatekeeper. Imagine typing in a search query for Ray Bradbury's "Fahrenheit 451" and getting back a list of books about baking turkeys; the novel is gone, vanished.

Yes, I am being sensational. True, there is little evidence Google has such pernicious motives, but one part of this doomsday scenario is not only feasible, it's happening now. A $125-million settlement of a class-action lawsuit filed on behalf of the copyright holders of millions of books may provide Google exclusive digital rights to most of the books in the world.

The lawsuit is a result of Google's Book Search Project, for which the company has scanned and digitized more than 7 million books in the last five years. Google has been digitizing and making available for download all books not under U.S. copyright law. It also scans and shows snippets - up to 20 percent - of copyrighted books, under the protection of the Fair Use doctrine. Google's intention, according to its mission statement, is to "organize the world's information and make it universally accessible and useful." However, being able to publish snippets of books in search results also creates revenue, which is why a consortium of authors and publishers sued Google in 2005 demanding a share of the profits.

What happened next was a bit of legal maneuvering so sly it would have blown Perry Mason's mind.

When Google sat down at the negotiating table with publishers, it was ready and willing to pony up a bundle of cash to keep its digital library growing. However, what it wanted in return was an explicit license to digitize and sell "orphan books," which are out-of-print copyrighted works with no findable heir or owner. By some estimates, these books make up about 70 percent of books in print, and there's no precedent for whom their digital rights should belong to.

By wresting control of orphan books into perpetuity, Google essentially turned the concept of a class-action lawsuit inside out. In addition, it inserted a "most favored nation" clause in the settlement, which would prevent publishers from offering better terms on non-orphan books to Google's future competitors.

The ramifications are chilling. Brewster Kahle, founder of the non-profit Internet library Archive.org, said future libraries may be nothing more than "subscribers to a few monopoly corporations' databases." Even more worrisome will be Google's ability to alter the availability and popularity of literature via its search rank. If Google doesn't like a book, it will be able to effectively purge it by making it unsearchable. The cherry on top is that Google will have a comprehensive database of the reading lists of all Americans that will be searchable by any topic. Wow, I wonder who might be interested in that?

The only good news is that the settlement has yet to be approved, and a public comment period during which objections can be heard has just been extended. Consumer groups, publishers and even Microsoft have stated their opposition to the settlement. More importantly, it appears the Department of Justice is considering filing an anti-trust grievance against Google.

It should.

There has been much speculation on how the Obama administration would deal with Google - who tussled with the Bush DOJ on numerous occasions - as Google's chief executive Eric Schmidt was previously an informal technology advisor to the president. The administration needs to quell any speculation of favorable treatment by intervening now.

America's most powerful corporation having a virtual monopoly on digital books isn't just bad news; it's cataclysmic. If anyone should be conscious of the awesome power of the world's biggest search engine, it's President Obama. His name returns 103 million results.

from the Los Angeles Times online, 2009-May-4, by Alex Pham:

Libraries ask court to monitor Google after book settlement is approved

Three organizations representing 139,000 libraries today asked the judge overseeing Google's settlement with authors and publishers to make sure that the company doesn't violate the privacy of readers who would use its vast digital books collection.

They also petitioned U.S. District Court Judge Denny Chin to ensure that Google doesn't set the price for access to its digital books "beyond the reach of many libraries."

The organizations, which include the American Library Assn.; the Assn. of College and Research Libraries; and the Assn. of Research Libraries, said they were not opposed to the settlement, which was reached in October between Google and the Assn. of American Publishers and the Authors Guild.

"The Settlement has the potential to provide unprecedented access to a digital library containing millions of books," the library groups said in a letter to the court. "But in the absence of competition for the services enabled by the Settlement, this impact may not be entirely positive. The Settlement could compromise fundamental library values such as equity of access to information, patron privacy, and intellectual freedom."

The proposed settlement, which requires court approval, would create a books registry to keep track of copyrights and dole out money based on how Google profits from digitized books. As of November, Google had scanned about 8 million books through a partnership with libraries. In exchange, Google has promised to give each library a single free terminal for patrons to read the books, but not print or copy any of the works. For broader access, libraries would have to pay an institutional subscription fee that has not yet been determined.

Many librarians also fret about the effect the settlement would have on free access, a fundamental value of libraries. "To digitize collections and sell products in ways that fail to guarantee wide access ... would turn the Internet into an instrument for privatizing knowledge that belongs in the public sphere," Robert Darnton, director of the Harvard University Library, wrote in an essay titled "Google & the Future of Books."

Other organizations have expressed fear over a perceived lack of competition and Google's domination of a digital book market. The Internet Archive in San Francisco, which scans books whose copyrights have lapsed and makes them available online for free, contends that the settlement would give Google an unfair advantage in being able to digitize millions of so-called orphan books -- titles that are still protected under copyright but whose rights holders cannot be located or determined. Though the settlement protects Google from future lawsuits arising from the scanning of those books, other organizations attempting to do the same would still be open to liability, said Peter Brantley, director of the Internet Archive.

Brantley has said he was interviewed in April by officials from the Justice Department regarding the settlement. Another group, Consumer Watchdog in Santa Monica, also confirmed discussions with Justice Department officials on the effects of the settlement on competition.

from National Public Radio online, 2009-Apr-30, by Maureen Clements:

>The Secret Of Google's Book Scanning Machine Revealed

The other day my colleague Kee Malesky turned me on to an incredibly interesting article from the New Scientist website about the granting of patent 7508978. What's so important about Patent 7508978 you ask? It's the patent that explains how Google's proprietary book scanning technology works.

Before Google came on the scene, book scanning was a tedious process that sometimes resulted in the death of a book. The software used to scan books, called Optical Character Recognition software or OCR for short, required each page of the book to be flat. Now anyone who's ever opened a book knows it's next to impossible for a book to lie flat without some sort of device. One solution to the problem was to use glass plates that individually flattened each page, but this method wasn't very efficient. The other solution was to chop off the book's binding, but that method destroyed the book. How was one to go about scanning a book quickly and efficiently without destroying it? It was a problem that vexed book scanners for years until Google came up with this solution

Turns out, Google created some seriously nifty infrared camera technology that detects the three-dimensional shape and angle of book pages when the book is placed in the scanner. This information is transmitted to the OCR software, which adjusts for the distortions and allows the OCR software to read text more accurately. No more broken bindings, no more inefficient glass plates. Google has finally figured out a way to digitize books en masse. For all those who've pondered "How'd They Do That?" you finally have an answer.

from the Wall Street Journal, 2009-Mar-11:

The Union Cudgel
Big Labor gets nasty on 'card check.'

Big Labor's drive to eliminate secret ballots for union elections has united American business in opposition, so labor chiefs are putting on the brass knuckles: The new strategy is to threaten companies with government retaliation if they don't stop lobbying against turning U.S. labor markets into Europe.

We wrote on February 13 about the letter from the labor consortium Change to Win to the Financial Services Roundtable, demanding that banks receiving Troubled Asset Relief Program money keep quiet about union "card check." To its credit, the banking lobby hasn't backed down. Now Big Labor is escalating, demanding in a February 23 letter to Secretary Timothy Geithner that Treasury muzzle the companies if they won't muzzle themselves.

"Firms receiving significant TARP assistance continue to lobby against the interests of hard working taxpayers," says the letter from Change to Win Chair Anna Burger. "For example, these firms continue to oppose legislation that would allow bankruptcy judges to modify mortgage loan terms, establish a Credit Cardholder's Bill of Rights and protect consumers from corporations that bury mandatory arbitration clauses in fine print."

Imagine that: Banks are daring to fight legislation that would reduce their profitability -- and at a time when our public officials say they are desperate for banks to earn themselves out of trouble.

The letter targets in particular the Principal Financial Group, based in Des Moines, which it says should be denied TARP money because of the "scale and scope" of its lobbying. But wait -- Citigroup spent three times more money on fourth-quarter lobbying than the $515,000 spent by Principal, the unions admit. So, what gives? It seems Principal's real sin is that it "lobbied on 26-labor related bills . . . including the Employee Free Choice Act," and it is the only TARP applicant or recipient to have disclosed doing so.

In case Mr. Geithner doesn't get the political point, the letter helpfully notes that "there is now a Congressional effort underway to curb lobbying by TARP recipients." Senators Dianne Feinstein (California) and Olympia Snowe (Maine) are leading that effort to limit corporate political speech, and Ms. Burger copies no fewer than 13 Members of Congress on her Treasury missive.

The double standard here is remarkable. Every year, unions collect millions of dollars in grants from government agencies they lobby. In 2002 and 2003, the Service Employees International Union -- the main driver behind Ms. Burger's consortium -- lobbied the Department of Health and Human Services while receiving between $563,226 and $938,388 per year in grants. Imagine if Tom DeLay had ever said that labor unions or AARP couldn't speak up about Medicare because they or their affiliates had accepted federal grants. The headlines would have read: "Republican Gag Rule."

Labor chiefs are desperate to pass their easy-organizing agenda this year, because they know liberal majorities on Capitol Hill won't last. They also know they haven't been able to organize workers with a level playing field, so they want to rewrite the rules so their organizers can see which individual workers are voting no and apply peer and other pressure. Most workers can see how unions have contributed to the destruction of Detroit, U.S. steel makers and so many other industries. That's why unions need government-sanctioned coercion to prevail both against business and with workers.

Congratulations to Principal Financial's Chairman J. Barry Griswell, aided in particular by the Chamber of Commerce, for refusing to succumb to this thuggery.

from the Denver Post, 2009-Apr-27, by Jessica Fender:

GOP "tracker" calls 911 on union members
Union members deny intimidating the man at a Democratic event.

It was either a frightening confrontation or a misunderstanding, depending on who's talking.

State GOP aide Matt Milner dialed 911 because he said union organizers blocked his exit and demanded he erase a video recording of Democratic Sen. Michael Bennet on Saturday afternoon following a townhall meeting sponsored by the AFL-CIO.

Mike Cerbo, executive director of Colorado AFL-CIO, said Milner came looking for trouble, but he wasn't forced to erase the tape or barred from leaving. It's now a matter for the Adams County Sheriff's Office, where authorities Sunday confirmed that they received a complaint from Milner. Police also confirmed his Saturday emergency call.

"I feared for my safety. Period," the 25-year-old Milner said Sunday.

Neither Bennet nor his staff was present at the altercation, said both Milner and a representative for the senator.

Milner has been a familiar face at about a dozen official Bennet events. The state Republican Party confirmed that it pays him to shadow and videotape the freshman senator in a practice known as "tracking."

There was no reason to think Saturday's gathering at the International Brotherhood of Electrical Workers' Local 68 union hall — billed as an "everyone's welcome" affair on the invitation — would vary from the typically uneventful routine. And for several hours it didn't, Milner said.

But Milner, with his tripod and video camera, garnered the attention of event organizers just as Bennet bid his adieu to hundreds of audience members, some of whom had grown passionate over politically tricky labor issues, such as the Employee Free Choice Act.

The Employee Free Choice Act would make it easier for unions to organize by effectively eliminating secret-ballot elections and allowing workers to show union support by signing a form, a process known as card-check.

It's poised to be one of the most contentious votes of Bennet's first year, potentially affecting his 2010 campaign.

The 5-foot-6-inch Milner found himself surrounded as the event wound down, he said.

"This hulking guy comes flying at me, and he's yelling 'Who are you with?' There's a flurry of F-words," Milner said. "They circled around me. I'd try to move, and they'd move to block my path."

Cerbo, one of the five men who spoke to Milner after Bennet's speech, disputed that version of events Sunday. He said the young interloper was aggressive and tried to provoke a confrontation, though he declined to say how.

"He came in uninvited. . . . I'd call him a trespasser," Cerbo said. "He didn't get the incident he wanted, so he's clearly lying about what happened."

By Cerbo's recollection, Milner offered to erase his tape because he hadn't been invited to the event. Milner says he was barred from leaving until he agreed to erase the recording and that one of the men briefly took his camera to make sure it was.

from the Wall Street Journal, 2009-Mar-30, by David B. Rivkin Jr. and Lee A. Casey:

Why Card Check Is Unconstitutional
Only secret ballots are consistent with the First Amendment.

The Employee Free Choice Act of 2009 -- otherwise known as "card check" -- is organized labor's dream. As a practical matter, this legislation, pursued by both the Obama administration and the Democratic Congress, would do away with the secret ballot in the unionization process. Although card check's advocates and critics have spilled much ink arguing about the bill's fundamental fairness to labor and management, so far the debate has not focused on the other compelling interest at stake: the constitutionally protected right of employees to keep their opinions on controversial issues like unionization to themselves. This is card check's Achilles' heel.

The Supreme Court has interpreted the First Amendment's guarantee of freedom of speech, along with the Fifth and 14th Amendment due process clauses, to protect a variety of expressive and associational rights. The right to speak and associate anonymously is among those rights. Indeed, anonymous speech has a long and honored tradition in American politics. Much of the political agitation leading up to the American Revolution was necessarily anonymous in order to avoid British sedition charges. And three of the Constitution's Framers -- James Madison, Alexander Hamilton and John Jay -- wrote the Federalist Papers supporting its ratification under the anonymous pen name "Publius."

The Supreme Court has consistently recognized the importance of this type of political discourse. The reason is obvious: Public speech on contentious issues often inflames passions, prompting intimidation and retaliation. Outing speakers who prefer anonymity chills speech, and has the potential to suppress it entirely.

In an early and important case, NAACP v. Patterson, 1958, the state of Alabama attempted to obtain a listing of the NAACP's membership, although the organization had "made an uncontroverted showing" that revealing the identities of its members had, in the past, exposed them to "economic reprisal, loss of employment, threat of physical coercions and other manifestations of public hostility." The Supreme Court affirmed the NAACP's right to associate freely and privately.

The Court similarly vindicated the right to anonymous speech in political campaigns in the 1995 case McIntyre v. Ohio Elections Commission. It struck down a law forbidding distribution of unsigned campaign literature, reasoning that the state had shown no interest compelling enough (such as the integrity of the campaign financing process) to justify restrictions on this core First Amendment right. "Identification of the author against her will," the Court explained, "is particularly intrusive; it reveals unmistakably the content of her thoughts on a controversial issue."

When courts have upheld restrictions on anonymous speech, they have required that such provisions be narrowly tailored to serve an overriding governmental interest. Moreover, they have been most comfortable in upholding these provisions when the competing interest itself also involved the protection of First Amendment values.

Thus, for example, campaign contribution limits and disclosures have been defended as necessary anticorruption measures, balancing the abridgement of individual speech against the integrity of the political process, and protecting the marketplace of ideas. Whatever one thinks about the legal strength of these rationales -- and they have many detractors -- it's clear that the judiciary has used them when balancing competing First Amendment interests.

There can be little doubt that the act of voting on important issues is a form of symbolic speech, residing at the very core of the interests protected by the Constitution. The secret ballot has not only been adopted in federal and state elections, it is recognized as a fundamental human right in a number of international instruments. This includes the U.N. Covenant on Civil and Political Rights, to which the United States is a party, that requires secret ballot voting as "guaranteeing the free expression of the will of the electors."

Labor organizing has been one of the most contentious exercises in modern American history, often leading to violence and employee intimidation on both the management and union side. Demanding that workers state publicly (by checking "yes" or "no" on a card) whether they support unionization would involve real and immediate dangers of intimidation, and would deprive workers of their right to anonymous expression. The fact that individuals could refuse to sign a card is unavailing, since a refusal to choose, in this instance, is an effective no.

Card-check supporters may argue that the activities of labor organizers, no matter how intimidating, involve purely private actions to which the Constitution's protections of free speech and association do not apply. However, the Supreme Court has recognized that certain government-sanctioned regulatory schemes can give associated private conduct the character of state or federal action, making the Constitution applicable.

In one early case, Public Utilities Commission v. Pollack (1952), the Court ruled that a private, Washington, D.C., bus company, which operated a radio news and music service in its vehicles that prompted customer complaints of unwanted political indoctrination, was subject to First and Fifth Amendment requirements. The Court reasoned that the Constitution applied since the local public utility commission had permitted the challenged service. In another important case, Railway Employees' Department v. Hanson (1956), the Court concluded that federal authorization of "union shop" agreements (under the Railway Labor Act) meant that governmental action was present because "the federal statute is the source of the power and authority by which any private rights are lost or sacrificed."

The same would be true of card check, which would endow a successful authorization-card drive by labor organizers with immediate consequences under federal law. The National Labor Relations Board would, under the new law, have to "certify" a collective bargaining unit based upon the completed cards. And the new law would effectively subject employer and employees to binding arbitration.

The presence of sufficient governmental action to require constitutional scrutiny can often be a fact-intensive inquiry. But when such mandatory legal consequences result from ostensibly private conduct, the courts would certainly be justified in concluding that the Constitution's requirements apply.

Sanctioning -- and thereby promoting -- demands that employees publicly disclose how they feel about unionization clearly violates their First Amendment entitlement to vote and practice their speech privately. Significantly, unlike other cases in which such restrictions have been upheld, union organizers cannot articulate even a semblance of an offsetting First Amendment value. While they may complain that the current system does not favor unionization and hence inhibits their associational rights, the problem, if any, arises from possible employer intimidation -- not from the secret ballot as such.

In this context, the new law would entitle organized labor to the government's imprimatur of its card-check choice. With the government thus supporting demands that employees publicly state their opinions on a controversial matter, the courts should view card-check's provisions as being ill-tailored to meet the problem of employer intimidation, and thus, unconstitutional.

Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush.

Read Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment, released 2009-Apr-7 for national dissemination to law enforcement bodies by the US Department of Homeland Security.

from the Washington Times, 2009-Apr-15, by Audrey Hudson:

Top Dem 'dumbfounded' by 'extremism' report

The top House Democrat overseeing the Department of Homeland Security is demanding that officials there explain how and why they wrote and released a controversial report identifying veterans as potential terrorist threats.

Rep. Bennie G. Thompson of Mississippi, chairman of the House Homeland Security Committee, said in a letter to DHS Secretary Janet Napolitano that he was "dumbfounded" such a report would be issued.

"This report appears to raise significant issues involving the privacy and civil liberties of many Americans -- including war veterans," Mr. Thompson said in the letter sent Tuesday.

"As I am certain you agree, freedom of association and freedom of speech are guaranteed to all Americans -- whether a person's beliefs, whatever their political orientation, are 'extremist' or not," Mr. Thompson said.

The report "blurred the line," and Mr. Thompson said he is "disappointed and surprised that the department would allow this report to be disseminated" to law enforcement officials nationwide.

Also Wednesday, Ms. Napolitano issued a statement standing by the report, which she personally had reviewed before it was issued. She insisted that DHS never would investigate based on political ideology and agreed to meet the head of the American Legion, who already had expressed anger over the report.

The Washington Times reported Tuesday that the department's Office of Intelligence and Analysis (I&A) released a report titled Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment on April 7. It identified as potential terrorist threats people who collect guns, veterans, supporters of border control, and pro-life advocates.

"I am particularly struck by the report's conclusion which states that I&A 'will be working with its state and local partners over the next several months to ascertain with greater regional specificity the rise in rightwing extremist activity in the United States with a particular emphasis on the political, economic, and social factors that drive rightwing extremist radicalization,'" Mr. Thompson said, demanding to know what types of activities DHS had planned for "the next several months."

from the Wall Street Journal's Political Diary, 2009-Apr-22, by John Fund:

A New Blacklist?

Entertainment blogger Perez Hilton wasn't subtle after Miss California Carrie Prejean said she favored limiting marriage to a man and woman in response to a judge's question about gay marriage at the Miss USA pageant. He called her "a bitch" and "the c word" on camera afterwards. She responded merely by saying she felt sorry for him.

In a calmer moment, Mr. Hilton insisted: "Miss USA should represent all Americans, and with her statement she instantly was divisive and alienated millions of gays and lesbians, their families, friends and supporters." Hmmm. It was only five months ago that a majority of California voters voted to limit marriage in just the way Ms. Prejean suggested -- to a man and woman. A national survey by ABC News finds that voters still opposed the concept of gay marriage by 58% to 36%. Sounds to me like Mr. Hilton wants Miss USA pageant winners to only represent his viewpoint. Indeed, Mr. Perez told ABC News that her answer on gay marriage sealed Ms. Prejean's loss of the title: "She lost it because of that question. She was definitely the front-runner before that." Ms. Prejean eventually finished second.

Hollywood has spent more than half a century railing against the anti-Communist blacklists of the 1950s that prevented some people from working in the movie industry. Woody Allen, George Clooney and other celebrities have produced liberal-minded films purporting to show how evil the blacklist was and upbraiding those who were silent while it was imposed.

Well, a new blacklist is being created right now, though few celebrities have dared to deplore it. Last December, Scott Eckern, artistic director of the California Musical Theater in Sacramento, the state's largest nonprofit performing arts company, donated $1,000 to the "Yes on 8" campaign against gay marriage. Protests from the producer of the Broadway musical "Hairspray" and many other show business people soon forced him to resign.

Similarly, Los Angeles Film Festival Director Richard Raddon was forced to step down after it was revealed he had donated $1,500 to "Yes on 8." The festival's organizer put out a statement blandly saying: "Our organization does not police the personal, religious or political choices of any employee, member or filmmaker." Behind the scenes, however, many of the festival's board members pressured Mr. Raddon to resign. "From now on, no one in entertainment is going to feel safe making a donation as measly as $100 to a conservative defense-of-marriage campaign," says Brent Bozell, head of the conservative Media Research Center.

Nor if Ms. Prejean's experience is any guide will many people be willing to exercise their free speech rights if they oppose gay marriage.

from ComputerWorld.com, 2009-Apr-3, by Jaikumar Vijayan:

Cybersecurity bill seeks to give president new powers over private-sector networks
Provision enabling White House to shut down critical infrastructure networks for security reasons may be a hard sell for bill's proponents

A wide-ranging cybersecurity bill introduced in the U.S. Senate this week would give the president unprecedented new powers to disconnect government and private-sector networks from the Internet in the event of security emergencies. But that provision is expected to be a hard sell in Congress.

The proposed bill, formally known as the Cybersecurity Act of 2009, was filed on Wednesday by Sens. Jay Rockefeller (D-W.Va.) and Olympia Snowe (R-Maine). The legislation includes a long list of provisions that would give federal officials significant new authority to set and enforce data security standards for federal agencies, government contractors and key parts of the private sector.

For instance, the bill would empower the National Institute of Standards and Technology (NIST) to develop "measurable and auditable" security standards for government entities as well as companies in critical infrastructure industries. Meanwhile, Rockefeller and Snowe also introduced a companion bill that calls for the addition of a national cybersecurity adviser within the Executive Office of the President.

But the provision that is attracting the most attention is buried deep in the 51-page bill, in a section blandly titled "Cybersecurity Responsibility and Authority." It would give the president broad authority to directly intervene in security matters in both the public and private sectors. For starters, the bill would give the president the power to declare security emergencies and then curtail or shut down Internet traffic to and from any compromised federal or critical infrastructure networks.

The measure would also enable the White House to order individual government or critical private-sector networks to be disconnected from the Internet for reasons of national security. In addition, the president could classify any corporate network as a piece of critical infrastructure.

The presidential-powers provision makes the proposed legislation "a sweeping federal takeover of cybersecurity" responsibilities, said Leslie Harris, president and CEO of the Center for Democracy & Technology, a Washington-based think tank and lobbying group. If the bill is signed into law as written, it would give the executive office "unfettered discretion" to exert control over private-sector networks on national security grounds, Harris claimed.

That could result in a "breathtaking power grab" by the White House, added Harris, who said the provision appears to assume that the government is better than the private sector is at identifying security threats and responding to them during emergencies.

Gartner Inc. analyst John Pescatore agreed that as currently written, the cybersecurity bill is a "major overreach." Some aspects of the bill would be welcome if they were focused specifically on improving federal cybersecurity initiatives, he said. NIST, for instance, should be playing a more active role in developing government security standards, and the intelligence community shouldn't be in charge of the federal security agenda, according to Pescatore.

"However, trying to have the government enforce cybersecurity standards on private industry would be a major step in the wrong direction," he said. "It would slow down the reaction time to new threats, not speed it up."

The Rockefeller-Snowe bill is loosely modeled on a set of cybersecurity recommendations issued last December by a commission that was set up by the Washington-based Center for Strategic and International Studies (CSIS) in late 2007, in an attempt to provide some external guidance to the next president.

James Lewis, director of the technology and public policy program at the CSIS, said that he thinks the proposed legislation does a good job overall of addressing several key security-related issues. "I love the bill," Lewis said. "It is really bold." But the provision granting the president new authority over private-sector networks will "trigger some debate," he conceded. "That is clearly going to be a problem for some people."

Lewis said he sees it as a "no-brainer" for the president to be able to exert whatever control is needed over federal networks in the interests of national security. He noted that the Defense Information Systems Agency already has the authority to pull the plug on any military network that poses national security risks. There's no reason why a similar authority shouldn't be extended to the executive office for all federal networks, he said.

"The larger issue is whether [the president] should have similar authority for critical infrastructure," Lewis added. "You have to think carefully about extending [such powers] to nongovernmental sectors." Any control over private-sector networks that were granted to the White House under the bill would need to be properly scoped, he said.

from the Wall Street Journal, 2009-May-1, by William Marling:

Beirut

A professor at the American University here recently ordered copies of "The Diary of Anne Frank" for his classes, only to learn that the book is banned. Inquiring further, he discovered a long list of prohibited books, films and music.

This is perplexing -- and deeply ironic -- because Beirut has been named UNESCO's 2009 "World Book Capital City." Just last week "World Book and Copyright Day" was kicked off with a variety of readings and exhibits that honor "conformity to the principles of freedom of expression [and] freedom to publish," as stated by the UNESCO Constitution, the Universal Declaration of Human Rights, and the UNESCO's "Florence Agreement." The catch is that Lebanon has not signed the Florence Agreement, which focuses on the free circulation of print and audio-visual material.

Even a partial list of books banned in Lebanon gives pause: William Styron's "Sophie's Choice"; Thomas Keneally's "Schindler's List"; Thomas Friedman's "From Beirut to Jerusalem"; books by Philip Roth, Saul Bellow and Isaac Bashevis Singer. In fact, all books that portray Jews, Israel or Zionism favorably are banned.

Writers in Arabic are not exempt. Abdo Wazen's "The Garden of the Senses" and Layla Baalbaki's "Hana's Voyage to the Moon" were taken to court. Syria's Sadiq Jalal al-Azm was prosecuted for his "Critique of Religious Thinking."

Censorship is carried out by the Sûreté General, which combines the functions of the FBI, CIA, and Homeland Security. It does not post a list of banned works, much less answer questions. However a major book importer, in an email, provided a list of banned films and the reasons given by the Sûreté. Here are some: "A Voice From Heaven" (verses of Koran recited during dance scenes); "Adventures of Priscilla, Queen of the Desert" (homosexuality); "Barfly" ( blacklisted company Canon); and "Daniel Deronda" (shot in Israel).

All of Jane Fonda's films are banned, since she visited Israel in 1982 to court votes for Tom Hayden's Senate run. "Torn Curtain" is banned: Paul Newman starred in "Exodus." And the television series "The Nanny" is banned because of Fran Drescher.

According to Beirut newspaper L'Orient, any one of the recognized religions (a system known as "confessionalism") can ask the Sûreté to ban any book unilaterally. The Muslim Dar al-Fatwa and the Catholic Information Center are the most active and effective. (The latter got Dan Brown's "The Da Vinci Code" banned.) Even works by self-proclaimed Islamists such as Assadeq al-Nayhoum's "Islam Held Hostage," have been banned, and issued only when re-edited in sympathetic editions (in Syria).

Censorship is a problem throughout the Arabic-speaking world. Though a signatory of the Florence Agreement, the Academy of Islamic Research in Egypt, through its censorship board al-Azhar, decides what may not be printed: Nobel Prize winner Naghib Mahfouz's "Awlad Haratina" (The Sons of the Medina) was found sacrilegious and only printed in bowdlerized form in Egypt in 2006. Saudi Arabia sponsors international book fairs in Riyadh, but Katia Ghosn reported in L'Orient that it sends undercover agents into book stores regularly.

Works that could stimulate dialogue in Lebanon are perfunctorily banned. "Waltz with Bashir," an Israeli film of 2008, is banned -- even though it alleges that Ariel Sharon was complicit in the Sabra and Shatilla massacres. According to the Web site Monstersandcritics, however, "Waltz with Bashir" became an instant classic in the very Palestinian camps it depicts, because it is the only history the younger generation has. But how did those copies get there?

The answer is also embarrassing. Just as it ignores freedom of circulation, Lebanon also ignores international copyright laws. Books of all types are routinely photocopied for use in high schools and universities. As for DVDs, you have only to mention a title and a pirated copy appears. "Slumdog Millionaire" was available in video shops before it opened in the U.S.

Mr. Marling is a visiting professor of American Studies at the American University of Beirut and professor of English at Case Western Reserve University.

from ArsTechnica.com, 2009-Apr-17, by Nate Anderson:

The Pirate Bay verdict: guilty, with jail time

A Swedish district court has ended The Pirate Bay's "spectrial" with a guilty verdict. The defendants split a 30 million kronor fine and will each spend a year in jail, though one already says he would rather burn all the money he owns than pay up.

The Pirate Bay "spectrial" has ended in a guilty verdict, prison sentences for the defendants, and a shared 30 million kronor ($3.5 million) fine. According to the Swedish district court, the operators of the site were guilty of assisting copyright infringement, even though The Pirate Bay hosted none of the files in question and even though other search engines like Google also provide direct access to illegal .torrent files.

These two points formed the basis of The Pirate Bay's defense, but the court found them ultimately unpersuasive in its 107 page verdict. "By providing a site with, as the district court found, sophisticated search functions, easy upload and storage, and a website linked to the tracker," the defendants were guilty of assisting copyright infringement, the court said.

In an Internet press conference this morning, defendant Peter Sunde Kolmisoppi compared the whole trial to (of all things) The Karate Kid, a movie in which the good guy is roughed up by bullies, goes through a long training process, learns to "wax on, wax off," encounters his bully again in the final round of a karate tournament, and kicks him in the face with his "crane technique." Kolmisoppi sees parallels. In the end, he insists, "we'll kick their ass."

This might seem a strange position coming from someone facing a year in prison, but The Pirate Bay defendants say that this is only the first round in a lengthy process. An appeal will be filed, and the spirited rhetoric will continue. (Speaking of paying the fine, Kolmisoppi said that he "would rather burn everything I own and not even give them the dust from the burning" than pay up, even if he had the money to do so.)

The 30 million kronor judgment is reduced from the 117 million kronor fine initially sought by content owners, but it remains a significant sum. The prosecutor insisted throughout the case that the three Pirate Bay admins had grown fat on ad revenues, though the men always denied that the site was anything more than a hobby in which most of the money went to pay hosting and equipment bills.

Fourth defendant Carl Lundström, an heir to the Wasabröd cracker fortune and alleged supporter of right-wing political groups, appears to be good for the money, though his interest in The Pirate Bay was more tangential—he used his telecom company to help the site with hosting and Internet access.

International music trade group IFPI was suitably thrilled by today's news. CEO John Kennedy, who appeared as a witness during the trial, said that the case "was about defending the rights of creators, confirming the illegality of the service and creating a fair environment for legal music services that respect the rights of the creative community. Today’s verdict is the right outcome on all three counts."

The verdict itself was leaked yesterday, with the defendants first learning their fate from a journalist. "Really, it's a bit LOL," Kolmisoppi wrote on Twitter. "It used to be only movies, now even verdicts are out before the official release."

It was a fitting end to this spectacle of a trial, which opened with The Pirate Bay driving a city bus up from Belgrade to Stockholm, saw the prosecutor dismiss half the charges on the first day, and featured the astonishing claim that 80 percent of the material on the site was legal.

Despite schooling Big Content on public relations throughout the trial, the defendants could not prevail in court. In comments today, Kolmisoppi argues that the whole trial was political in nature, even going so far as to call the district court a "dice court" because its verdicts are so random.

No word yet on the ultimate fate of The Pirate Bay, which at the moment remains active. Read the complete verdict in Swedish.

from BBC News, 2009-Apr-23:

Pirate Bay lawyers demand retrial

Lawyers for four men jailed for running The Pirate Bay file-sharing website are calling for a retrial, saying the judge could have had a conflict of interest.

Judge Tomas Norstrom is a member of the Swedish Copyright Association and sits on the board of Swedish Association for the Protection of Industrial Property.

But the judge has told Swedish Radio: "These activities do not constitute a conflict of interest."

Sweden's Court of Appeal would rule on a possible retrial, the lawyers said.

Frederik Neij, Gottfrid Svartholm Warg, Carl Lundstrom and Peter Sunde were found guilty of breaking copyright law on 17 April 2009 and sentenced to a year in jail.

The four were also ordered to pay $4.5m (£3m) in damages to a number of entertainment companies, including Warner Bros, Sony Music Entertainment.

Peter Althin, who represents The Pirate Bay (TPB) spokesman Peter Sunde, said it was for the appeal courts to decide if there was to be a retrial, as it emerged the judge and lawyers for the entertainment industry were members of the copyright association.

"In the autumn I received information that a lay judge could have similar connections. I sent these to the court and the judge was excluded in order to prevent a conflict of interest. It would have been reasonable to then review this situation as well," Althin told Sveriges Radio.

Speaking to the BBC, Sven-Erik Alhem - a former senior attorney in Sweden - said the judge had made an error of judgement, but a retrial was unlikely.

"The judge should have told the parties of his other engagements. Had he done that then they could make a decision on whether they wanted him as a judge in their case.

"I'm not sure the superior court could say that this was unfair, but had he been open then it wouldn't have been an issue," he said.

Rick Falkvinge, leader of the Swedish Pirate Party, told the BBC the judge had made an "unforgiveable" decision.

"This is corruption and judicial decay at an unforgiveable level.

"The judge in one of Sweden's most high profile case ever is also a member of an interest organisation for one side and associates with the prosecution trial lawyers in his free time? That is inexcusable corruption," said Mr Falkvinge.

The Pirate Bay file-sharing website was set up in 2003 by anti-copyright organisation Piratbyran, but for the past five years it has been run by individuals.

Millions of files are exchanged using the service every day.

No copyright content is hosted on The Pirate Bay's web servers. The site hosts BitTorrent links to TV, film and music files held on its users' computers.

from the Guardian of London, 2009-Apr-21, by Sean Michaels:

Study finds pirates 10 times more likely to buy music
According to research, those who download 'free' music are also the industry's largest audience for digital sales

Piracy may be the bane of the music industry but according to a new study, it may also be its engine. A report from the BI Norwegian School of Management has found that those who download music illegally are also 10 times more likely to pay for songs than those who don't.

Everybody knows that music sales have continued to fall in recent years, and that filesharing is usually blamed. We are made to imagine legions of internet criminals, their fingers on track-pads, downloading songs via BitTorrent and never paying for anything. One of the only bits of good news amid this doom and gloom is the steady rise in digital music sales. Millions of internet do-gooders, their fingers on track-pads, who pay for songs they like – purchasing them from Amazon or iTunes Music Store. And yet according to Professor Anne-Britt Gran's new research, these two groups may be the same.

The Norwegian study looked at almost 2,000 online music users, all over the age of 15. Researchers found that those who downloaded "free" music – whether from lawful or seedy sources – were also 10 times more likely to pay for music. This would make music pirates the industry's largest audience for digital sales.

Wisely, the study did not rely on music pirates' honesty. Researchers asked music buyers to prove that they had proof of purchase.

The paper's conclusions emerge just as Sweden's Pirate Bay trial comes to a close. Pirate Bay's four defendants, who helped operate the notorious BitTorrent tracker, were sentenced to a year in jail and fined 30m SEK (£2,500,000) in damages.

from BBC News, 2009-Apr-2:

Piracy law cuts internet traffic

Internet traffic in Sweden fell by 33% as the country's new anti-piracy law came into effect, reports suggest.

Sweden's new policy - the Local IPRED law - allows copyright holders to force internet service providers (ISP) to reveal details of users sharing files.

According to figures released by the government statistics agency - Statistics Sweden - 8% of the entire population use peer-to-peer sharing.

Popular BitTorrent sharing site, The Pirate Bay, is also based in Sweden.

The new law, which is based on the European Union's Intellectual Property Rights Enforcement Directive (IPRED), allows copyright holders to obtain a court order forcing ISPs to provide the IP addresses identifying which computers have been sharing copyrighted material.

Figures from Netnod, a Swedish firm that measures internet traffic in and out of the country, suggest traffic fell from an average of 120Gbps to 80Gbps on the day the new law came into effect.

Traffic lite

Speaking to the BBC, Christian Engstrom, vice-chairman of the Swedish Pirate Party - said the drop in traffic was a direct result of the new law, but that it would only be a temporary fall.

"Today, there is a very drastic reduction in internet traffic. But experience from other countries suggests that while file-sharing drops on the day a law is passed, it starts climbing again.

"One of the reasons is that it takes people a few weeks to figure out how to change their security settings so that they can share files anonymously," he added.

Mr Engstrom acknowledged that the new legislation would scare a number off file-sharing, and that the odds of getting caught had increased, but said that the risks to illegal file-sharers were still quite low.

"We estimate there are two million file-sharing [computers] in Sweden, so even if they prosecuted 1,000 people to make an example of them, for an individual user it is still a very small risk."

Prolific sharer

However, for some, that risk is already a reality.

A number of book publishers in Sweden have applied to the courts, on the day the law came out, forcing an ISP to disclose the details of one file-sharer who, the publishers claim, has more than 3,000 audio books on his server.

Speaking to the BBC, Kjell Bohlund - chair of the Swedish Publishers' Association - said that until the new law was passed, they were virtually powerless to act.

"Before 1 April, the only thing we could do about illegal file sharing was to refer it to the police, who were very reluctant to take it on.

"Now we can go get the courts to force ISPs to disclose the user information of an IP address.

"In two weeks time, we will know exactly who owns that IP. We can then do nothing, ask him to stop, or sue him for damages. We won't do this for small offenders, this is just for the big fish," he added.

Other companies are watching the case with interest, to determine what the court deems to be sufficient proof.

One action which began before the new legislation was the prosecution of four men accused of promoting copyright infringement via the hugely popular BitTorrent sharing site, The Pirate Bay.

The Pirate Bay hosts thousands of links to so-called torrent files, which allow for movies, TV programmes and applications to be shared online.

A verdict is expected later this month.

Public perception

Mr Engstrom said the new law was "a disaster", not just for file-sharers, but for Sweden as a whole.

"Dealing with illegal file-sharing is a job for the police. It is their job to enforce the law.

"Now we have given private corporations the legal right to go after our civilians. That's not how Western democracies work," he said.

Mr Bohlund acknowledged that cracking down on illegal file-sharing was not a long-term solution.

"In a study, 80% of people thought we shouldn't go after file-sharers.

"But ask them how they feel about taking money out of the pockets of musicians, authors or artists and that number falls by a significant amount," he said.

"Ultimately we have to change people's perception on file-sharing." [Musicians and authors see a very small fraction of the gross proceeds from conventional retail sales of their works. -AMPP Ed.]

from PCMag.com, 2009-Apr-24, by Mark Hachman:

Judge in RealNetworks Case Seals Court

U.S. District Court Marilyn Patel sealed the San Francisco courtroom Friday where RealNetworks and several Hollywood studios began squaring off over the issue of whether Real's RealDVD software can be legally sold.

The decision came as a result of a motion by the DVD Copy Control Association, who argued that public testimony of aspects of the CSS copy-control technology would violate trade secrets.

The two sides presented opening arguments Friday morning, over the legality of a restraining order barring RealNetworks from selling RealDVD, a program to allow users to rip and manage DVD movies copied to a hard drive. Several Hollywood studios including Warner Bros. and Disney claimed that the RealDVD technology facilitated piracy and violated the terms of the CCA's contract. Real, for its part, maintained that it respected copyright and provided additional security through enhanced encryption.

The issue of public scrutiny of the CSS technology came to a head during the testimony of John Kelly, president of the Kelly Technology Group. Kelly was asked to dissect the CSS contract and determine if RealNetworks violated it. Kelly said they did.

"The RealDVD products do not comply with the CSS specifications because they intercept and copy the contents of the DVD for the purpose of playing it back without the presence of the DVD disc," Kelly said. Because of that, the RealDVD software does not comply with the CSS licensing agreement, he said.

DVD CCA attorneys originally tried to seal off all of Kelly's testimony, although Judge Patel argued that Kelly's basic conclusions should be made public. Leo Cunnigham, a partner at Wilson Sonsini Goodrich & Rosati representing Real, said Friday morning that his client would have "a non-spirited opposition" to the motion.

After Kelly's early testimony, however, an attorney for the DVD CCA argued that he could not proceed further without delving into the organization's trade secrets. Patel agreed and sealed the court, ordering all those not bound to an NDA agreement to leave.

The public calendar allowed time for media organizations to file a pre-emptive challenge to the closing of the court, Judge Patel said. But observers noted that the similar 2007 Kaleidescape case was conducted in open court, save for a few sealed exhibits.

from Agence France-Presse, 2009-Apr-30:

French computer worker fined for insulting minister

A French computer technician was slapped with a suspended 1,000 euro fine on Wednesday for "insulting a public official" after he sent an email attack on Justice Minister Rachida Dati.

Damien Chiboub, 25, was prosecuted after sending a message to the town hall of seventh district of Paris, where Dati is mayor, after admitting creating an email account based on a vulgar phrase personally insulting to the minister.

From this address, he sent a message reading: "Useless, useless, useless, the people will get you!"

Prosecutor Francoise Champonneaux had sought a suspended one-month prison sentence, and dismissed the defence case that Chiboub had been testing the limits of free speech when sent his critique from the offending address.

"It was a fairly gratuitous insult," she told the court. "If he is disappointed with politicians, he should join a pressure group or a party."

Defence counsel Gilbert Collard had argued that the case should be thrown out for unavoidable conflict of interest as Dati, as justice minister, is the employer of the judge overseeing the case.

The court rejected this argument.

from the New York Times, 2009-Apr-8, by Kevin J. O'Brien:

Plan to Curb Internet Piracy Advances in France

French lawmakers are poised to approve a law to create the world's first surveillance system for Internet piracy, one that would force Internet service providers in some cases to disconnect customers accused of making illegal downloads.

The proposal, called the “Création et Internet” and known informally as the “three strikes” directive, has won preliminary votes by the Parliament and is expected to be approved in both houses Thursday. It has support from the governing party of President Nicolas Sarkozy.

The law empowers music and film industry associations to hire companies to analyze the downloads of individual users to detect piracy, and to report violations to a new agency overseeing copyright protection. The agency would be authorized to trace the illegal downloads back to individuals using the downloading computer's unique identification number, known as its Internet Protocol, or IP, address, which the Internet service providers have on record.

For a first violation, the agency would send a warning by e-mail.

If a user made another illegal download within three months, a second warning would be sent by certified mail. If a third infraction occurred within a year, the service provider would be required to sever service.

Piracy costs the film and music industry in France at least 1 billion euros, or $1.3 billion, a year in lost sales, according to industry figures.

“This law is definitely overdue and it's only a fair and proportionate response to a major problem,” said Marc Guez, the managing director of the French Society of Phonographic Producers, which represents recording companies. “Our members are losing more than 500 million euros a year in sales.”

While piracy surveillance systems have been discussed in a number of countries, the French plan goes farther than the measures under consideration elsewhere. On April 1, a law in Sweden called the Intellectual Property Rights Enforcement Directive took effect, allowing industry groups to more easily prosecute copyright piracy.

In the United States, a Congressional committee this week began studying the issue. In a hearing Monday before the Foreign Affairs Committee of the House of Representatives, Steven Soderbergh, the film director, cited the French initiative in asking lawmakers to deputize the American film industry to pursue copyright pirates.

In France, the law has attracted prominent support from the French music and film establishment, including Johnny Hallyday, the French rock star, and Denis Olivennes, the former chief executive of the FNAC retail chain.

The International Federation of Phonographic Industry, a group based in London that represents the global music industry, said that 95 percent of all songs downloaded on the Internet last year — including those in France — were illegal downloads. Globally, illegal music downloads cost $12.8 billion in sales, according to the group.

While supporters and opponents both predicted that the proposal would become law, some lawyers and Internet advocates said the measure would face a tougher road before the French Constitutional Council, which can invalidate laws that it determines do not conform with the Constitution.

One of several controversial aspects of the proposal places the onus of proving innocence on those accused, who would only be able to protest their innocence after they were disconnected from the Internet.

“It is always hard to predict how the Constitutional Council may rule, but this new law does not protect the fundamental right to defend oneself,” said Cédric Manara, a law professor at the Edhec Business School in Nice.

Winston Maxwell, a media lawyer at Hogan & Hartson in Paris, said the legal challenges might delay the measure's effective date.

“But I doubt the Constitutional Council will decide a French citizen has the right to make illegal downloads,” Maxwell said.

Nonetheless, Internet advocates call the French proposal legally unsound on the ground that there are inadequate the provisions for challenging an action, and because it gives industry groups the power to police the Internet. Others question whether the law would unfairly penalize those whose wireless broadband accounts are misused by others. The French law tries to anticipate this by making it a civil infraction for citizens to fail to “secure” their broadband accounts by using approved filtering technology.

That burden, theoretically, would fall on public Wi-Fi hot spots.

Nicolas D'Arcy, a spokesman for France's ISP Association, the Association des Fournisseurs d'Accès et de Services Internet, said Internet providers were hoping the law would not take effect.

Internet service providers, Mr. D'Arcy said, do not want to become the enforcement arm of French justice and do not trust the law to insulate them from suits brought by customers whose service has been cut off.

“There are so many things wrong with this,” Mr. D'Arcy said.

Other critics say the law will not stop illegal downloads.

Jérémie Zimmermann, director of La Quadrature du Net, an Internet advocacy group based in Paris, said some computer users would turn to encrypted downloads and other methods to avoid detection. On Wednesday, a Swedish company, the Pirate Bay, began a service called Ipredator, which lets users use its virtual private network to make anonymous downloads for 5 euros a month.

“The French law will only drive people further underground,” Mr. Zimmermann said. “It will make the situation worse.”

Michel Thiollière, the French Senate sponsor of the legislation, said the system would probably survive legal review by the council and help preserve the rights of French artists, musicians and actors.

“The mechanism is reasonable and a graduated response designed to bring Internet users to a new world where the rights of creators must be respected,” he said.

from Reuters, 2009-Apr-15, by Sophie Hardach, with reporting by Emile Picy and editing by Tim Pearce:

France to have second vote on Internet piracy law

PARIS - France's parliament will vote again on a government-backed bill to crack down on Internet piracy, a proposal that was rejected the first time around in an embarrassing defeat for the ruling UMP party.

The bill, which proposes disconnecting Internet users if they download music or films illegally, was voted down earlier in April after the UMP failed to turn out in force to approve it.

Opposition politicians and consumer activists have said the law would be inefficient and could hit the wrong people, and have urged the government not to re-submit the bill.

But President Nicolas Sarkozy announced after the defeat that he was determined to see it passed, saying the law would protect creative diversity.

The music industry, hurt by falling revenues as fans prefer to download songs for free, has lobbied the French and other governments strenuously to introduce the law.

The bill would give users caught illegally downloading files two warnings and, after a third violation, they would be disconnected from the Internet for up to a year.

Critics argue that hackers could steal other users' identities to download music, and the victims would then have to prove their innocence. Some artists also worry that such a law would pit them against their fans.

Parliament will vote on the bill again on April 29.

UMP party discipline has been repeatedly tested this year, from a controversy over France's return to the military command structure of NATO, to a bill to ease restrictions on Sunday business hours -- which was postponed indefinitely.

from CarlosMiller.com, 2009-Apr-2, by Carlos Miller:

Phoenix police raid home of blogger whose writing is highly critical of them

In what should send a frightening chill down the spine of every blogger, writer, journalist and First Amendment advocate in the United States, Phoenix police raided the home of a blogger who has been highly critical of the department.

Jeff Pataky, who runs Bad Phoenix Cops, said the officers confiscated three computers, routers, modems, hard drives, memory cards and everything necessary to continue blogging.

The 41-year-old software engineer said they also confiscated numerous personal files and documents relating to a pending lawsuit he has against the department alleging harassment - which he says makes it obvious the raid was an act of retaliation.

Maricopa County Judge Gary Donahoe signed the search warrant that allowed at least ten cops to raid his home in North Phoenix on March 12 while handcuffing his female roommate for three hours as they tore the place apart.

Pataky, who was out of town on a business trip during the raid, also believes police were retaliating against him for the content of his blog, much of it which comes from inside sources within the department.

“They broke into my safe and took the backups of my backups,” he said in a phone interview with Photography is Not a Crime on Wednesday.

“I can’t even file my taxes because all my business plans are gone. They took everything.”

The search warrant lists “petty theft” and “computer tampering with the intent to harass” as probable causes. He has yet to see an actual affidavit that lists in detail the probable cause and is skeptical that one even exists.

“They say everything has been sealed,” he said.

The conflict between Pataky and the Phoenix Police Department began two years ago during “a nasty divorce” after moving out of the house he had shared with his wife. His said she was not taking the divorce too well and began filing false allegations against him accusing him of stalking and harassing her.

Many of the reports she filed accused him of doing things when he was out of town, he said.

So he began filing complaints with everybody from Phoenix Mayor Phil Gordon down to Phoenix Police Chief Jack Harris to no avail. He was eventually indicted for harassing his ex-wife.

A month before the trial, he and a few friends launched the website as a rant against the police department. When he went to trial in May 2008, his charges were immediately dismissed because of lack of evidence, he said.

“We were going to shut down the website after that but then all of a sudden all these good cops started hitting the site and sending us tips,” he said.

He said they would also deliver all kinds of internal documents from within the department exposing everything from a cop with multiple DUIs to another cop whose son was a child molester and was trying to get on the force (and was eventually arrested).

“We have about 50 to 100 retired and active cops who provide us information,” he said.

Police apparently believe one of the tipsters is an officer named David Barnes, who fell out of favor with the department in 2007 when he was a detective and went public with claims of mismanaged evidence at the city crime lab.

Police also raided Barnes’ home and according to Pataky’s inside sources, plan to raid the homes of more cops.

Police have been extremely vague about the nature of the raids, according to the arizona republic.

Police officials said Wednesday that a Phoenix detective prompted the investigation after complaining about harassment, though they declined further comment…

Phoenix Assistant Chief Andy Anderson said the harassment case is unique because of the connection to an unaccredited grassroots Web site. He said the blog is one part of the case, though he did not provide specifics of the ongoing investigation.

“This isn’t about the blog,” Anderson said. “That’s just where the investigation led.”

The allegation of “petty theft” against Pataky stem from photos he posted on his blog of police name plates that appear to have been taken from within the department. He said he actually made the plates himself.

The allegation of “computer tampering with the intent to harass” obviously has to do with his no holds barred criticism of the department.

Pataky, who has since purchased a new laptop, is taking the raid in stride and has added it to the allegations in his pending lawsuit.

And he has not let it stop him from blogging.

“They thought they were going to scare us into a corner but they just made us stronger.”

from the Wall Street Journal, 2009-Apr-7, p.B1, by Russell Adams, with Shira Ovide and Jessica E. Vascellaro contributing:

AP to Fight Illegal Use of Content on Web Sites

The Associated Press said Monday it is launching an initiative to better control its newspaper members' material online.

Under the initiative, whose details are still being determined, the AP will work with Web portals and other digital partners to track -- and pursue legal action against -- publishers that use this content on the Web without a license.

How and where content appears online has become a contentious issue for many of the AP's more than 1,400 U.S. newspaper members, which already are struggling with steep revenue declines. In that environment, the AP's board also announced on Monday additional reductions to newspaper members' annual rates, which are into the seven figures for larger dailies. The changes will reduce the AP's total membership fees for 2010 by $35 million, and follow its move last year to slash $30 million from the fees.

For most of its 163-year history, the AP mainly served its newspaper members. That began to change over the past decade as the organization invested in photo and video journalism and later began tailoring its content for use by Internet portals such as Google Inc. and Yahoo Inc. Those portals pay the AP for use of its content. Many news aggregators do not pay, however.

Even the paying customers have become a sore spot for publishers because they don't directly pay newspapers. AP feeds those sites stories from both the organization's own staff and the member papers, and the sites host a few lines from those stories, with a link, on news pages that carry ads.

"Pure traffic generation isn't enough to pay for the content," said Brian Tierney, chief executive of the company that publishes the Philadelphia Inquirer and the Philadelphia Daily News.

Tom Brettingen, the AP's senior vice president and chief revenue officer, said the AP is only starting to explore ways to get compensated for its and its members' content. "This is a step, a step in a process," he said.

Google and other portals say they are in full compliance with copyright laws by publishing only part of each story and that users who want the full story are directed to the publisher's Web site.

"We believe search engines are of real benefit to newspapers, driving valuable traffic to their Web sites and connecting them with new readers around the world," said Gabriel Stricker, a Google spokesman. He added that publishers can easily prevent their Web sites from appearing in Google's search results.

from Politico.com, 2009-Apr-11, by Michael Calderone:

AP chair takes on new media

Associated Press chairman Dean Singleton kicked off the week by telling newspaper executives that the AP is “mad as hell”—but at whom, exactly, still remains unclear.

“It came off pretty combative,” the AP's Jane Seagrave told POLITICO Friday, “but that really wasn't our intent.”

Regardless of the AP's intent, Singleton's tough talk about those who "walk off with our work" fueled speculation that search engines (Google) or news aggregators (The Huffington Post) are now in the AP's crosshairs. Singleton, talking of “misguided, unfounded legal theories,” even raised the possibility of litigation for those not following the rules.

Seagrave, a senior vice president for global product development, stressed that “what we're really trying to do is work on ways to affirm the value of original reporting.”

Already, the AP has challenged bloggers and remains embroiled in a lawsuit against artist Shepard Fairey for allegedly basing his iconic "Hope" image of Barack Obama on an AP photograph.

Singleton signaled that the AP is ready to go further to prove that the world's oldest news organization won't be put out to pasture by the new media. But Seagrave stressed that while there is an enforcement aspect to the AP's new initiative, it's really “more affirmative than punitive.”

The AP is working on methods to attach rights information to content as well as create new models for distribution and revenue, she said.

While newspaper executives applaud, new media gurus scoff. And given the complex legalities what constitutes "fair use" of AP's content online, some media lawyers say that protecting AP's content is easier threatened than done.

Attorney Andrew P. Bridges said that “fair use is a lighting rod right now,” and acknowledged that “the notion that someone has to pay somebody else for a symbiotic relationship is in the air.”

Bridges, who works in the San Francisco-based firm Winston & Strawn, previously defended Google in a suit alleging that its search engine was illegal; his firm has represented the AP.

While newspaper veterans complain that aggregators make money off their content—paid for with costly newsgathering—it's not the first time such cross-industry relationships have led to litigation.

A few decades back, Bridges said, copyright disputes normally took place within the same industry, whether publishing, music, or movies. But when the motion picture industry sued Sony—a non-competitor—over the video tape, Bridges contends that a new era began that continues today: Hollywood vs. Silicon Valley.

Of course, the courts decided that consumers could tape movies off television, and eventually, Hollywood benefited from the new service by selling its films to consumers on video cassettes.

from TheRegister.co.uk, 2009-Mar-18, by Kevin Murphy:

Mormons demand ICANN plugs net smut hole
No more crazy whoreses, thanks

Mormon anti-pornography activists led by SCO Group chairman Ralph Yarro III are calling on ICANN to give more political clout to those who want to kick porn off the web.

Scores of Yarro's followers have this week petitioned ICANN to OK the formation of a new “Cybersafety Constituency” which would help develop binding policies for the internet's domain name system.

The drive is being orchestrated by Cheryl Preston, the top lawyer for CP80.org, an “Internet Zoning” censorship campaign headed by Yarrow, who is also the chairman and largest shareholder of controversial Linux vendor SCO.

CP80.org wants all adult material banned from Port 80, the standard protocol port for the web, and confined to a new port. It also suggests that “ISPs could simply block all IP addresses originating from a non-compliant country”.

ICANN is responsible for managing internet port and IP address allocations globally.

Preston told ICANN last December that the Cybersafety Constituency would represent “the interests of families, children, consumers, victims of cybercrime, religions and cultures”.

If approved, it would have equivalent policy-making power to existing ICANN constituencies such as intellectual property interests, ISPs and non-commercial domain name owners.

While Preston had previously disclosed her affiliations to ICANN, her petition for the new constituency does not mention any of CP80.org's radical policies concerning the internet's fundamental architecture.

ICANN has asked for comments on the proposal here. So far, the vast majority of commenters support the move, and a majority of those are identikit stock letters, written by and sent at the request of Yarrow.

“[T]his new constituency will represent the first moral voice in creating non legislative policies for the protection of families and children online,” Yarro told his flock, urging them to send cut-and-paste messages of support to ICANN.

The large majority of commenters giving physical addresses or phone numbers appear to be located in the Mormon stronghold of Utah.

Several supporters using Yarro's letter also make explicit reference to “clean” internet “ports” or to CP80.org itself. Neither “ports” nor CP80.org are referred to in Preston's Cybersafety Constituency proposal.

One commenter told ICANN this morning: “It is becoming clear to me that the religious fruitcakes are intent on interfering with every netizen's right to horseporn.”

But the Church of Jesus Christ of Latter-day Saints knows whereof it speaks. Utah is 58 per cent Mormon, and according to a recent study has the highest consumption of internet pornography of any US state, boasting an average of 5.47 porn subscriptions per 1,000 broadband users.

from NewsMax.com, 2009-Mar-8:

Pelosi Backs Talk Radio Regulations

House Speaker Nancy Pelosi is supporting legislation that will force the Federal Communications Commission to “promote diversity” on the airwaves – a move many see as a stealth effort to regulate conservative-dominated talk radio without bringing back the controversial Fairness Doctrine.

Pelosi, D-Calif., has thrown her support to an amendment in a Senate bill that directs the FCC to explicitly “take actions to encourage and promote diversity in communication media ownership and to ensure that broadcast station licenses are used in the public interest,” according to CNS News.

The amendment has become known as the Durbin amendment, after its sponsor, Senate Assistant Majority Leader Dick Durbin, D-Ill.

“Certainly, I support Mr. Durbin in most things,” Pelosi told CNS News. “Diversity in media ownership is very, very, important.”

The amendment is clearly an attempt to revive the Fairness Doctrine – an unpopular FCC regulation removed in 1987 that forced broadcasters to grant equal airtime to opposing political viewpoints, Republican Rep. Mike Pence told CNS News.

“Its clear to me that Democrats, having failed in their frontal assault on talk radio in America through the Fairness Doctrine, are now shifting strategy to a form of regulation that is essentially the Fairness Doctrine by stealth,” Pence, R-Ind., a former radio broadcaster, told CNS.

Minutes after the passage of the Durbin amendment last Thursday a separate amendment that would ban the restoration of the Fairness Doctrine, which was proposed by Sen. Jim DeMint (R-S.C.), was also attached to the same D.C. voting rights bill and passed by a vote of 87-11.

House Minority Leader John Boehner, R-Ohio, said he thinks Republicans may be able to muster the votes to stop it when it gets to his chamber.

“I think as we get into the appropriations process you will see us continue our effort to make sure the Fairness Doctrine is not put back into place,” Boehner told CNS News at his weekly press conference on Thursday. “And I do believe the votes are in the Congress to make sure that happens.”

The primary text of the Durbin amendment reads:

SEC.9 FCC Authorities. (a) Clarification of General Powers. – Title III of the Communications Act of 1934 is amended by inserting after section 303 (47 U.S.C. 303) the following new section:

SEC.303B. Clarification of General Powers. (a) Certain Affirmative Actions Required – The Commission shall take actions to encourage and promote diversity in communication media ownership and to ensure that broadcast station licenses are used in the public interest. …

The language is virtually identical to a policy position that has been long developed by Democrats and has been recently taken up by the Obama administration over calls by some to revive the Fairness Doctrine. The White House now aims to “encourage diversity in the ownership of broadcast media, promote the development of new media outlets for expression of diverse viewpoints, and clarify the public interest obligations of broadcasters who occupy the nation's spectrum.”

That philosophy is part of a position established earlier at the Center for American Progress, a liberal think tank headed by former Obama transition leader John Podesta. The center published a report calling for a new “localism” and “ownership diversity” regulations to balance conservative talk radio with so-called “progressive” talk radio.

The report, “The Structural Imbalance of Political Talk Radio,” concludes with the following recommendations:

“[A]ny effort to encourage more responsive and balanced radio programming will first require steps to increase localism and diversify radio station ownership to better meet local and community needs. We suggest three ways to accomplish this:

• Restore local and national caps on the ownership of commercial radio stations.
• Ensure greater local accountability over radio licensing.
• Require commercial owners who fail to abide by enforceable public interest obligations to pay a fee to support public broadcasting.”

from the American Spectator's Washington Prowler blog, 2009-Feb-16:

In All Fairness
DOCTRINE AIR DEMOCRACY

Senior FCC staff working for acting Federal Communications Commissioner Michael Copps held meetings last week with policy and legislative advisers to House Energy and Commerce Committee Chairman Henry Waxman to discuss ways the committee can create openings for the FCC to put in place a form of the "Fairness Doctrine" without actually calling it such.

Waxman is also interested, say sources, in looking at how the Internet is being used for content and free speech purposes. "It's all about diversity in media," says a House Energy staffer, familiar with the meetings. "Does one radio station or one station group control four of the five most powerful outlets in one community? Do four stations in one region carry Rush Limbaugh, and nothing else during the same time slot? Does one heavily trafficked Internet site present one side of an issue and not link to sites that present alternative views? These are some of the questions the chairman is thinking about right now, and we are going to have an FCC that will finally have the people in place to answer them."

Copps will remain acting chairman of the FCC until President Obama's nominee, Julius Genachowski, is confirmed, and Copps has been told by the White House not create "problems" for the incoming chairman by committing to issues or policy development before the Obama pick arrives.

But Copps has been a supporter of putting in place policies that would allow the federal government to have greater oversight over the content that TV and radio stations broadcast to the public, and both the FCC and Waxman are looking to licensing and renewal of licensing as a means of enforcing "Fairness Doctrine" type policies without actually using the hot-button term "Fairness Doctrine."

One idea Waxman's committee staff is looking at is a congressionally mandated policy that would require all TV and radio stations to have in place "advisory boards" that would act as watchdogs to ensure "community needs and opinions" are given fair treatment. Reports from those advisory boards would be used for license renewals and summaries would be reviewed at least annually by FCC staff.

Waxman and the FCC staff are also said to be looking at ways to ease the "consumer complaint" process, which could also be used along with the advisory boards.

The House Energy and Commerce Committee is also looking at how it can put in place policies that would allow it greater oversight of the Internet. "Internet radio is becoming a big deal, and we're seeing that some web sites are able to control traffic and information, while other sites that may be of interest or use to citizens get limited traffic because of the way the people search and look for information," says on committee staffer. "We're at very early stages on this, but the chairman has made it clear that oversight of the Internet is one of his top priorities."

"This isn't just about Limbaugh or a local radio host most of us haven't heard about," says Democrat committee member. "The FCC and state and local governments also have oversight over the Internet lines and the cable and telecom companies that operate them. We want to get alternative views on radio and TV, but we also want to makes sure those alternative views are read, heard and seen online, which is becoming increasingly video and audio driven. Thanks to the stimulus package, we've established that broadband networks -- the Internet -- are critical, national infrastructure. We think that gives us an opening to look at what runs over that critical infrastructure."

Also involved in "brainstorming" on "Fairness Doctrine and online monitoring has been the Center for American Progress, a liberal think tank, which has published studies pressing for the Fairness Doctrine, as well as the radical MoveOn.org, which has been speaking to committee staff about policies that would allow them to use their five to six million person database to mobilize complaints against radio, TV or online entities they perceive to be limiting free speech or limiting opinion.

from American Thinker, 2009-Feb-20, by Rick Moran:

New York Post caves to racialists. Apologizes for chimp cartoon that had nothing to do with race

Remember the controversy in Washington a few years back when a white aide to Mayor Williams made the mistake of saying "niggardly" when talking about the amount of federal funds allocated for some program?

Do you remember how some racialists hit the ceiling and Williams was forced to fire his aide?

Washington, DC's black Mayor, Anthony Williams, gladly accepted the resignation of his white staff member, David Howard, because Mr. Howard uttered the word 'niggardly' in a private staff meeting.

Webster's Tenth Edition defines the word 'niggardly' to "grudgingly mean about spending or granting".  The Barnhard Dictionary of Etymology traces the origins of 'niggardly' to the 1300's, and to the words 'nig' and 'ignon', meaning "miser" in Middle English.  No where in any of these references is any mention of racial connotations associated with the word 'niggardly'.

In other words, it's a perfectly good and useful word.  But there is the unfortunate coincidence that it starts with the same four letters as the word "nigger".  The news media are so loathe to use the "N" word, that they've been substituting the phrase "racial slur", as in "...they mistook the word 'niggardly' for a racial slur..."

Washington, DC's population is 60% black, and it's citizens have been very critical of Mayor Williams for "not being black enough" -- especially because he hired several well-qualified whites to help him run this troubled city.

It was a perfect example of political correctness in the media plus the conniving racial grievance mongers who knew full well that "niggardly" is a perfectly acceptable word, does not have anything to do with race, and the farthest thing from Mr. Howard's mind when he uttered it was to make a racial slur.

Reality, intent, and Webster's Dictionary matter little to the racialists. It is their mission in life to gin up outrage over anything that could possibly be construed as racist - even when it is clearly and definitively not.

For we are not talking about the redress of a grievances but rather the exercise of power - raw, in your face, power for power's sake. When Al Sharpton announced that the New York Post cartoon depicting two white police officers who have just shot a chimp with the caption "They'll have to find someone else to write the next stimulus bill" was worse than the "nappy headed ho" comment by Don Imus, you knew that the writing was on the wall and the New York Post was in trouble.

And, despite the fact that the cartoon had nothing to do with Obama (it referred to the recent story about a chimp that was shot dead by police after it mauled a woman), the racialists, and their white toadies who saw an opportunity to attack Post owner Rupert Murdoch, put the pedal to the metal and came out in full throated howls of outrage over this "slurring" of Obama.

Here's the offending cartoon:

The chimp does not resemble the president which is the usual practice for racist cartoons. Besides, anyone with half a brain and who follows the news knows full well Obama did not write the bill. The cartoon refers to the fact that the chimp was mentally ill hence, the idea that the person (people) who wrote the stimulus bill - Nancy Pelosi and Harry Reid - should have their heads examined.

There were no lack of warnings before Obama was elected that this would be the tactic of the left to stifle dissent. I wrote at the time they would be crazy NOT to use the race card as early and often as they could. It is the most powerful political weapon the left and the Democrats have at their disposal and it is something their opponents cannot hope to counter or match.

It appears that the mostly white Huffington Post  got the ball rolling as their excellent but partisan political reporter Sam Stein wrote the initial article decrying the portrayal  of Obama in such a fashion. It was picked up by the netnuts and before you knew it, Al Sharpton was in front of the Post building carrying on about the "racial smear."

It was all over cable news in a matter of hours. Condemnations emanated from the usual quarters in media and academia - all pretending that the cartoon was about Obama and not a crazy dead chimp who had mauled a woman.

The point had absolutely nothing to do with the cartoon but that opposition must be squashed and opponents of the administration intimidated. What surprised me is that it was done with Nazi-like efficiency. Old Joe Goebbels couldn't have carried it off better.

Like a grotesque Kabuki dance where everyone knows their parts and what movements they should make, this self-orchestrated gaggle of left wing zealots appeared almost out of nowhere, all saying the same thing, all trying to shame the Post into a humiliating retraction. Today, they succeeded - to a certain extent:

It was meant to mock an ineptly written federal stimulus bill.

Period.

But it has been taken as something else - as a depiction of President Obama, as a thinly veiled expression of racism.

This most certainly was not its intent; to those who were offended by the image, we apologize.

However, there are some in the media and in public life who have had differences with The Post in the past - and they see the incident as an opportunity for payback.

To them, no apology is due.

Sometimes a cartoon is just a cartoon - even as the opportunists seek to make it something else.

The Post, I'm afraid, is dreaming. A cartoon will never be "just a cartoon" as long as there are dishonest, unscrupulous, greedy (donations to Sharpton's personal piggy bank of an "activist group" probably surged so that the good Reverend will no doubt buy himself a couple of additional $3000 suits), and shameless partisans who will seek to use the excuse of President Obama's race to invent, exaggerate, or or simply lie about any criticisms of the president they believe they can get away with employing the race card.

Unfortunately, for the vast majority of Americans who don't follow the news closely, they will more often than not be successful. The only way to stop this slide into authoritarianism is for the press to do its job and act as unbiased referee between those in power and those in opposition.

A vain hope given how in the tank the press is at this point for Obama.

from the New York Daily News, 3009-Feb-22, by Erin Durkin and Meredith Kolodner:

Rev. Al Sharpton wants FCC to investigate New York Post's parent company, News Corp.

Critics are still turning up the heat on the New York Post, directing their venom now at the embattled newspaper's parent company.

The Rev. Al Sharpton and several city councilmembers - riled up over purportedly racist cartoon - are asking the Federal Communications Commission to yank a waiver allowing News Corp. to run two newspapers and two TV stations in the city.

"You can stem protests because you own so much of the media. People can't question you," said Sharpton on his weekly radio show on KISS FM. "Advertisers are reluctant to pull out because you own so much of the media market."

In addition to the Post - which ran a cartoon last week that compared President Obama to a face-mauling chimpanzee - Rupert Murdoch owns the Wall Street Journal, Fox News and the city's Channel Nine.

Sharpton said he hopes to get one million signatures online this week to show regulators the depth of opposition.

Protests also continued over at Medgar Evers College in Brooklyn, where students burned copies of the Post and encouraged classmates to boycott the paper and shut down their MySpace pages, a social networking site owned by Murdoch.

"We are the ones who are putting money in their pockets," said Marie Antoine, a senior and president of the Student Government Association. "They have treated us like animals."

"We don't need this trash," said state Senator Eric Adams (D-Brooklyn), standing behind a barrel of burning copies of the Post. "This is where it deserves to be."

Also, Council members Letitia James and Charles Barron are calling for council hearings on the employment practices of the Post and other news media. They want to know the racial make-up of the Post and are demanding the city pull all advertising and cancel any subscriptions.

The protesters dismissed claims that their demands infringed on freedom of speech.

"You have the freedom to do it, and we have the freedom to make you pay for it," Sharpton said. "We can hardly fight back if he owns half the newspapers in town and half the TV stations."

from the New York Daily News, 2009-Feb-24, by Adam Lisberg and Christina Boyle:

Apology not accepted: Sharpton not satisfied with Murdoch's statement on controversial Post cartoon

The Rev. Al Sharpton was still not satisfied Tuesday after New York Post owner Rupert Murdoch issued an unprecedented personal apology over a controversial cartoon that was branded racist.

Standing on the steps of City Hall, flanked by several City Council members and civil rights leaders, Sharpton continued his calls for a boycott over the illustration, which critics say compared President Obama to a chimpanzee.

He also demanded that the billionaire businessman explain how he will ensure that a similar gaffe will not occur in the future.

"[Murdoch] says in his statement this will never happen again. Well, he does not say how he intends to see that it never happens again," Sharpton said in front of supporters holding signs reading, "Yes we can shut you down NY Post!" and "How do you spell racism? New York Post."

"Is he asking the community to trust those that did it, to trust their judgment in the future?"

Sharpton called on Murdoch to come up with a plan for increasing diversity in his newsrooms. He said he's meeting with Federal Communications Commission members Wednesday to discuss the waiver that lets the Australian tycoon own several media outlets in the city.

Murdoch published his apology in The Post on Tuesday, declaring, "The buck stops with me."

"I have had conversations with Post editors about the situation and I can assure you, without a doubt, that the only intent of that cartoon was to mock a badly written piece of legislation," he said.

"It was not meant to be racist, but unfortunately, it was interpreted by many as such.

"Today I want to personally apologize to any reader who felt offended, and even insulted."

Mayor Bloomberg also weighed in, saying the apology was "the right thing to do," but adding that he hopes the community can move on.

An HCD Research poll of self-reported Democrats, Republicans and independents showed that a majority of voters in all three groups believe the cartoon had racist undertones.

More than half (61%) of those questioned felt it was directed toward Obama and that the editor who approved it should be held responsible.

Note regarding the following item: CBC/Radio Canada and Sirius are longtime business partners, a conflict of interest that is not disclosed in the article.

from CBC News, 2009-Feb-27:

Make ISPs, wireless carriers pay for broadcasting rights: Sirius

Internet service providers and wireless carriers should be forced to pay fees to support Canadian artists just like traditional broadcasters, since they make money off internet radio, Canada's broadcast regulator has been told.

"They are benefiting from the privilege of being able to broadcast to Canadians, but unlike traditional broadcasters, they currently have no obligations commensurate to that benefit," Sherry Kerr, vice-president and general counsel for the satellite radio company Sirius Canada Inc. Friday told a hearing in Gatineau, Que.

The hearing is one of a series being held by the Canadian Radio-television and Telecommunications Commission to determine whether broadcasting over the internet should be subject to federal regulations.

Kerr argued that internet radio is a direct competitor and a serious threat to satellite radio, especially now that it is becoming increasingly available on portable wireless devices and even some devices that can be built into the dashboard of a car.

"This view is supported by an increasing number of articles in the press opining that internet radio is a category killer and the category that it would kill would be ours," she said.

That would be bad for Canadian artists, as satellite radio broadcasters are required by the CRTC to offer significant support for Canadian artists by ensuring a certain percentage of their content is Canadian — specifically supporting emerging artists and contributing money to a fund to support Canadian artists.

Other broadcasters have similar obligations, which also indirectly force them to exclude certain non-Canadian content, Kerr said.

At the same time, wireless and ISPs now have revenues in the billions per year, some of that driven by audio broadcasting, and some are increasingly behaving like broadcasters.

For example, Kerr said, Bell Mobility provides a service that gives customers access to 60 internet radio stations for $8 a month.

Geoblocking suggested as solution

Kerr said one way to level the playing field would be requiring ISPs to geoblock — make unavailable to Canadians — audio content that doesn't comply with Canadian content requirements.

That move would thrill satellite radio companies, Kerr added.

"We would actually throw a party for you. Nothing else would level the playing field for us from a regulatory perspective," she said. "However, we recognize that this approach flies in face of the principles of openness and freedom of choice that governs the internet."

She suggested that an alternative would be to require wireless carriers and ISPs to pay a levy proportional to their revenues related to broadcasting.

That wouldn't completely level the playing field, as broadcasters are still bound by Canadian content rules that internet radio is not, Kerr said. Because of that, she said, new media should pay a higher levy while the levy should be lowered for her own company.

She acknowledged that some people would be opposed to the new fee and consider it a tax that could boost internet fees for wireless and broadband internet customers, and discourage them from buying those services.

However, she said, given that people are willing to pay much higher fees for faster internet and the fact that it is becoming a necessity, it's unlikely the levy would cost the companies customers.

"Customers are highly unlikely to cancel their service because they're paying an extra dollar a month," she said.

from City Journal, 2009-Feb-12, by Walter Olson:

The New Book Banning
Children’s books burn, courtesy of the federal government.

It’s hard to believe, but true: under a law Congress passed last year aimed at regulating hazards in children’s products, the federal government has now advised that children’s books published before 1985 should not be considered safe and may in many cases be unlawful to sell or distribute. Merchants, thrift stores, and booksellers may be at risk if they sell older volumes, or even give them away, without first subjecting them to testing—at prohibitive expense. Many used-book sellers, consignment stores, Goodwill outlets, and the like have accordingly begun to refuse new donations of pre-1985 volumes, yank existing ones off their shelves, and in some cases discard them en masse.

The problem is the Consumer Product Safety Improvement Act of 2008 (CPSIA), passed by Congress last summer after the panic over lead paint on toys from China. Among its other provisions, CPSIA imposed tough new limits on lead in any products intended for use by children aged 12 or under, and made those limits retroactive: that is, goods manufactured before the law passed cannot be sold on the used market (even in garage sales or on eBay) if they don’t conform. The law has hit thrift stores particularly hard, since many children’s products have long included lead-containing (if harmless) components: zippers, snaps, and clasps on garments and backpacks; skateboards, bicycles, and countless other products containing metal alloy; rhinestones and beads in decorations; and so forth. Combine this measure with a new ban (also retroactive) on playthings and child-care articles that contain plastic-softening chemicals known as phthalates, and suddenly tens of millions of commonly encountered children’s items have become unlawful to resell, presumably destined for landfills when their owners discard them. Penalties under the law are strict and can include $100,000 fines and prison time, regardless of whether any child is harmed.

Not until 1985 did it become unlawful to use lead pigments in the inks, dyes, and paints used in children’s books. Before then—and perhaps particularly in the great age of children’s-book illustration that lasted through the early twentieth century—the use of such pigments was not uncommon, and testing can still detect lead residues in books today. This doesn’t mean that the books pose any hazard to children. While lead poisoning from other sources, such as paint in old houses, remains a serious public health problem in some communities, no one seems to have been able to produce a single instance in which an American child has been made ill by the lead in old book illustrations—not surprisingly, since unlike poorly maintained wall paint, book pigments do not tend to flake off in large lead-laden chips for toddlers to put into their mouths.

At any rate, CPSIA’s major provisions went into effect on February 10. The day before, the Consumer Product Safety Commission (CPSC) published guidelines telling thrift stores, as well as other resellers and distributors of used goods, what they could safely keep selling and what they should consider rejecting or subjecting to (expensive) lead testing. Confirming earlier reports, the document advised that only “ordinary” children’s books (that is, made entirely of paper, with no toylike plastic or metal elements) printed after 1985 could be placed in the safe category. Older books were pointedly left off the safe list; the commission did allow an exception for vintage collectibles whose age, price, or rarity suggested that they would most likely be used by adult collectors, rather than given to children.

Since the law became effective the very next day, there was no time to waste in putting this advice into practice. A commenter at Etsy, the large handicrafts and vintage-goods site, observed how things worked at one store:

I just came back from my local thrift store with tears in my eyes! I watched as boxes and boxes of children’s books were thrown into the garbage! Today was the deadline and I just can’t believe it! Every book they had on the shelves prior to 1985 was destroyed! I managed to grab a 1967 edition of “The Outsiders” from the top of the box, but so many!

People who deal in children’s books for a livelihood now face unpleasant choices. Valorie Jacobsen of Clinton, Wisconsin, who owns a small used-book store and has sold over the Internet since 1995, commented at my blog, Overlawyered: “Our bookstore is the sole means of income for our family, and we currently have over 7,000 books catalogued. In our children’s department, 35 percent of our picture books and 65 percent of our chapter books were printed before 1985.” Jacobsen has contacted the CPSC and her congressional representatives for guidance, but to no avail. “We cannot simply discard a wealth of our culture’s nineteenth and twentieth children’s literature over this,” she writes. She remains defiant, if wary: “I was willing to resist the censorship of 1984 and the Fire Department of Fahrenheit 451 long before I became a bookseller, so I’d love to run a black market in quality children’s books—but at the same time it’s not like the CPSC has never destroyed a small, harmless company before.”

Jacobsen also worries that any temporary forbearance on the part of the CPSC, which has said that it does not plan a reseller crackdown any time soon in the absence of evidence of risk, could be abrogated without notice in the future. For one thing, new commissioners appointed by the Obama administration are expected to show less sympathy in regulating business than the current commission. In addition, the 50 state attorneys general have been empowered to enforce the law on their own, and frequently take much more aggressive legal positions than those of the federal government, sometimes teaming with private lawyers who capture a share of fines imposed.

Seizing on the “collectible” loophole, commenter Carol Baicker-McGee declared: “If nothing happens to change this law soon, I promise I will spend whatever money and devote whatever space I can to buying up these older books. I’ll be happy to label myself a collector (and I’m subversive enough to leave the books lying around where kids might ‘accidentally’ read them).” But this strategy, aside from its overtones of furtive evasion, will provide limited legal help to sellers. Under the law, they’re liable if their products will commonly be understood as intended for children’s use, even if not labeled as such.

A further question is what to do about public libraries, which daily expose children under 12 to pre-1985 editions of Anne of Green Gables, Beatrix Potter, Baden-Powell’s scouting guides, and other deadly hazards. The blogger Design Loft carefully examines some of the costs of CPSIA-proofing pre-1985 library holdings; they are, not surprisingly, utterly prohibitive. The American Library Association spent months warning about the law’s implications, but its concerns fell on deaf ears in Congress (which, in this week’s stimulus bill, refused to consider an amendment by Republican senator Jim DeMint to reform CPSIA). The ALA now apparently intends to take the position that the law does not apply to libraries unless it hears otherwise. One can hardly blame it for this stance, but it’s far from clear that it will prevail. For one thing, the law bans the “distribution” of forbidden items, whether or not for profit. In addition, most libraries regularly raise money through book sales, and will now need to consider excluding older children’s titles from those sales. One CPSC commissioner, Thomas Moore, has already called for libraries to “sequester” some undefinedly large fraction of pre-1985 books until more is known about their risks.

The threat to old books has surfaced so quickly in recent weeks that the elite press still seems unaware of it. The wider pattern of CPSIA’s disruptive irrationality and threat to small businesses has been covered reasonably well by the local press around the country. Some papers have investigated particular aspects of the law—the Los Angeles Times has tracked its menace to the garment industry, and the Washington Post and Wall Street Journal the general plight of thrift stores—but almost no one has cared to consider the law’s broad array of unintended consequences, let alone ask what went wrong in the near-unanimous rush to passage of this feel-good law.

The New York Times, which last year vigorously cheered the passage of CPSIA in both its news and editorial columns, occupies a class by itself in almost completely ignoring the law’s wrenching effects as its effective date has arrived. The Times used to cover the book business, as well as apparel, retailing, and product design, to name a few of the sectors hit hard by CPSIA. Yet the paper has remained entirely silent on the law in recent weeks, aside from one brief wire-service item and a post on the paper’s automotive blog, Wheels, about the law’s effect on children’s dirt bikes (now forced off the market). On Wednesday, the Times ran an editorial solemnly condemning “book banning”; on inspection, the editorial turned out to praise an ACLU lawsuit against a school district that had removed a library book from the shelves because of its allegedly over-favorable view of Castro’s Cuba. In any wider and more systematic prospect of book banning, the paper has shown no interest.

Whatever the future of new media may hold, ours will be a poorer world if we begin to lose (or “sequester” from children) the millions of books published before our own era. They serve as a path into history, literature, and imagination for kids everywhere. They link the generations by enabling parents to pass on the stories and discoveries in which they delighted as children. Their illustrations open up worlds far removed from what kids are likely to see on the video or TV screen. Could we really be on the verge of losing all of this? And if this is what government protection of our kids means, shouldn’t we be thinking instead about protecting our kids from the government?

Walter Olson is a senior fellow at the Manhattan Institute and has covered CPSIA in depth at his blog, Overlawyered.

from the Wall Street Journal, 2008-Dec-19, by Richard A. Epstein:

The Employee Free Choice Act Is Unconstitutional
Free speech and the takings clause are at stake.

A top priority of the incoming Democratic Congress and Obama administration is the misnamed Employee Free Choice Act. The EFCA, as is well known, introduces a card-check procedure that allows a union to gain recognition without an election by secret ballot. Thereafter a government arbitration panel can impose, without judicial review, all the terms of an initial two-year collective "agreement" if the parties cannot negotiate an agreement within 130 days.

It is commonly supposed that economic regulation is immune to constitutional challenge since the New Deal. That's not the case with this labor law.

Consider card check and the First Amendment. Under the National Labor Relations Act (NLRA) today, an employer can insist upon a secret ballot after 30% of workers indicate by card checks their interest in a union. The campaign that follows lets the employer air his views about the downsides of unionization before the vote takes place.

To be sure, the employer's free-speech rights are limited under the NLRA. He cannot threaten to move or shut down if workers vote for the union. Nor can he promise higher wages if they don't. But he can make predictions of what will happen if his firm is unionized, and he can point to the reversal of worker fortunes in other unionized firms.

The Supreme Court (unfortunately, in my view) has held that the peculiar labor-law environment justified these abridgements of ordinary speech rights. But it hardly follows that if the government can curtail speech rights, the EFCA can eliminate them. There is simply no legitimate government interest in promoting unionization that justifies a clandestine organizing campaign which denies all speech rights to the unions' adversaries.

The mandatory arbitration provisions of the EFCA are also constitutionally suspect. True, the takings clause of the Fifth Amendment today is quite lax when the state just restricts how an owner can use his property. But it imposes a firm duty to compensate someone whose property is occupied pursuant to a government decree. The Supreme Court also has established that any company subject to rate regulation (such as in telecommunications, transportation, insurance, etc.) may raise a judicial challenge to secure a reasonable rate of return on invested capital.

These Fifth Amendment protections apply to labor markets. The NLRA strips employers of basic common law rights, including the right to refuse to deal with the union. It imposes on employers (and unions) a duty to bargain in good faith toward a contract. But this duty does not force agreement. Either side is free to walk away from any deal it does not like. Unions can strike, and firms can lock out workers. Today's law, accordingly, restricts arbitration to interpreting existing agreements, not to making agreements from whole cloth.

The EFCA takes away the employer's right to walk. Now the successful union, backed by direct government power -- i.e., mandatory arbitration -- can force itself on the firm. Yet the proposed law does not let any court block the deal or ensure that the mandated terms offer a reasonable return on its invested capital. (Even modern rent control statutes require that much.)

The government-chosen panel could well impose terms that might cripple the firm competitively. Consider that the takings clause surely prevents the government from forcing any person to buy real estate for twice its market value from a seller. That same principle applies to this labor law: No government should be able to force a firm to hire labor at $50 per hour when the company is not willing to pay half that much.

Worse, the EFCA also permits the government arbitrator to strip the employer of all its standard management prerogatives on everything from subcontracting out to promotion policy. By flatly denying the employer any option to walk away, mandatory arbitration under the EFCA runs smack into the takings clause.

Let's hope that the Democratic Congress will moot this analysis -- by refusing to jump head first into a labor-law abyss that promises to wreck labor markets in times of acute national economic distress. The Employee Free Choice Act should not be passed, and it should be struck down by the Supreme Court if it is.

Mr. Epstein is a professor of law at the University of Chicago, a senior fellow at the Hoover Institution, and a visiting professor at NYU. He has consulted on EFCA with employer groups.

from NewsMax.com, 2009-Feb-14, by Rick Pedraza:

Bill Clinton Says Talk Radio Needs More Balance

Former President Bill Clinton, interviewed on radio talk show host Mario Solis Marich's syndicated program, “The Mario Solis Marich Show,” says the U.S. should consider bringing back the Fairness Doctrine.

"Well, you either ought to have the Fairness Doctrine or you ought to have more balance on the other side," Clinton said, "because essentially there has always been a lot of big money to support the right-wing talk shows."

Clinton noted that conservative talk radio kept up a "blatant drumbeat" against President Barack Obama's stimulus program.

Clinton said when the Fairness Doctrine was done away with during the deregulation sweep of the Reagan administration, he was not in favor of seeing it go. The doctrine, originally instituted in 1949 by the Federal Communications Commission, required broadcasters over the public airwaves to give equal time to opposing political views.

“At the time, frankly, most people thought that there were more liberal than conservative voices [on the airwaves],” Clinton said.

“I never minded having somebody be heard who disagreed with me,” he said, “but if you only have one side, like this blatant drumbeat against the stimulus program, this doesn't reflect the economic reality we're facing — and it's an example of why we need more, not less. If you only hear one side on the radio, that's pretty tough.”

Clinton, however, would like to see "more balance in the programs or have some opportunity for people to offer countervailing opinions" on controversial issues of public importance.

“I think the American people know now that we are in a very serious time where we all need to be questioned,” Clinton said. “The president, I'm sure, would be the first to admit that none of us are right all the time and everything should be debated. But basically, with the future of the country hanging in the balance, we shouldn't be playing petty politics or just going for entertainment.”

During this past week, Sens. Tom Harkin, D-Iowa, and Debbie Stabenow, D-Mich., have spoken out about the need to bring the Fairness Doctrine back, even as some of their Democratic colleagues are quietly backing off the idea. Both would like to see congressional hearings held on radio accountability, noting that liberal views are being out-represented on the air by conservative views.

“Essentially, there's always been a lot of big money to support the right wing talk shows,” Clinton pointed out. “And let's face it … Rush Limbaugh is fairly entertaining, even when he is saying things that I think are ridiculous."

Stabenow told WorldNewsDaily.com earlier this week: "I think it's absolutely time to pass a standard. Now, whether it's called the Fairness Standard, or whether it's called something else, I absolutely think it's time to be bringing accountability to the airwaves."

Conservative critics note that while pushing for the Fairness Doctrine, Stabenow has not been noting a significant conflict of interest.

Her husband, Tom Athans, is a former executive of the liberal Air America radio network that went into bankruptcy. In 2006, he formed another liberal network, called TalkUsaRadio. A return of the Fairness Doctrine could be a boon for liberal talk networks, as local stations would be forced to include their shows even if they have proven to be money losers.

from the Telegraph of London, 2009-Feb-21, by Chris Hastings:

BBC's secret war with the pirates
They are now fondly remembered for helping kickstart the swinging Sixties and revolutionising the airwaves forever.

But the fear that the arrival of offshore pirate radio stations drove into the broadcasting establishment has only now become clear.

Previously unseen documents from the BBC archives disclose how the corporation was so alarmed at the rise of the stations that it launched a secret “dirty tricks” campaign to have them shut down.

The files show the extraordinary lengths to which the corporation went to undermine their new rivals, which operated without restriction from ships or wartime forts outside British territorial waters.

Measures included lobbying acts such as The Beatles, Cliff Richard and Ken Dodd to ban their records from being played by the stations and blacklisting pirate DJs such as Tony Blackburn and Simon Dee. The BBC banned its own presenters from broadcasting any reference to Radio Caroline, the most popular of the pirates, and suppressed audience research on the stations' popularity. Bosses also put pressure on the Conservative Party not to support the pirates.

The public broadcaster, which had a monopoly of the radio waves at the time, even complained about an episode of the ITV spy thriller Danger Man which was set aboard one of the ships, claiming that the show gave pirate stations undue publicity. It was also upset by a review in The Sunday Telegraph of one pirate programme which, although critical, would have “drawn attention” to the station.

This newspaper has obtained the documents ahead of the release of a new British comedy film, The Boat That Rocked, by the makers of Notting Hill. It stars Kenneth Branagh, Philip Seymour Hoffman, Rhys Ifans and Bill Nighy in a story of the often farcical attempts to close down a fictional pirate radio ship inspired by Radio Caroline.

However, the official papers suggest that the on-screen events are not far removed from reality. They disclose how the BBC routinely taped Radio Caroline's output, in the hope that its DJs would say something derogatory about Harold Wilson, the Prime Minister, which they could pass on to Downing Street.

Nonetheless, a report of Caroline's coverage of Winston Churchill's funeral in 1965 concluded: “They proceeded to play music of such a funereal character that it made our own solemn music sound like a wedding march”.

In 1964, the BBC introduced a ban on employing anyone involved with the pirate stations. A list of names included Tony Blackburn, Simon Dee, Tom Lodge, Doug Kerr, Chris Moon, Gerry Duncan, Terry Withers, Errol Bruce and Bobby Brown, all pirate DJs.

When Dee quit Radio Caroline in 1965 so he could work at the BBC, some managers argued for the ban to remain. However, he was eventually allowed to join the corporation and other former pirates would follow.

The BBC believed that the pirates were part of attempts to break up its monopoly via the backdoor. Its dirty tricks campaign was prompted by the reluctance of politicians to take action against the stations, for fear of alienating young voters. The BBC conducted extensive research into Radio Caroline, which had ships off Felixstowe, Suffolk, and the Isle of Man, including finding out how many of its listeners were under 21 – the voting age, at the time – so it could prove to MPs that a ban on the pirates would not damage their election prospects.

However, the corporation decided not to release its research because “the potential disadvantages to the BBC outweighed the potential advantage… some aspects of the report could be interpreted in such a way as to be favourable publicity for Caroline”.

The BBC's campaign did nothing to dent the success of the pirates which, by the mid-1960s, had audiences in excess of 20 million. The campaign ended in 1967 with the introduction of the Marine Broadcasting Offences Act, which made it illegal to work for, advertise on or supply pirate stations. They all closed with the exception of Caroline.

A month later the BBC launched Radio 1, its first pop music station. Commercial radio was not introduced until 1973.

from the Wall Street Journal, 2008-Dec-3:

Fighting Racism, U.N.-Style
Durban II mixes the same old Israel-bashing with new attacks on free speech.

One of Colin Powell's best moves as Secretary of State was to pull out of the 2001 United Nations Durban confab against racism once it became an anti-Semitic rant. One of the best moves the new U.S. administration and Europe could make is to stay away from the follow-up meeting altogether.

"Durban II," planned for April in Geneva, promises to be an encore of the same old Israel-bashing. The draft declaration says Israel's policy toward the Palestinians amounts to no less than "a new kind of apartheid, a crime against humanity, a form of genocide and a serious threat to international peace and security." We'll spare you the rest of the diatribe.

Israel will be the conference's main object of obsession, but it's not the only target. The draft declaration also goes after the West's freedom of speech and antiterror laws under the guise of protecting religion -- read: Islam -- from "defamation."

The entire West will be in the dock for allegedly persecuting Muslims. "The most serious manifestations of defamation of religions are the increase in Islamophobia and the worsening of the situation of Muslim minorities around the world," the draft reads.

"Islamophobia" is a vague term used to brand any criticism of Islam as a hate crime. The real Islamophobes, though, Islamic terrorists who have killed hundreds of thousands of their co-religionists, get a free pass.

Instead, the draft calls for a media code of conduct and "internationally binding normative standards...that can provide adequate guarantees against defamation of religions." If this sounds like censorship, that's because it is.

The conference is being organized by the U.N. Human Rights Council, which, like its discredited predecessor, the Human Rights Commission, has been taken over by several of the world's main abusers of human rights. The Organization of Islamic Countries, the most powerful voting bloc at the U.N., managed to put Libya in charge of preparing Durban II. Tripoli is being assisted by such other pillars of the international community as Iran and Cuba. Last week a key U.N. General Assembly committee passed a draft resolution, sponsored by Islamic states, that calls for national laws against the "defamation of religions."

If the Durban II drafters have their way, any challenge of Islamic teachings, including teachings used to justify violence, would be taboo. Reprinting the Danish Muhammad cartoons, exploited by Muslim agitators in 2006 to incite riots around the world, would be a criminal offense. Even gross human-rights violations in Islamic countries -- such as the stoning of adulterers in Iran -- could be immune from criticism as these practices are rooted in religion.

Although couched in the language of religious rights, the draft isn't concerned with the right to practice one's religion. If so, it would have focused on the plight of religious minorities in many Muslim states. In Saudi Arabia, for instance, the public worship of any religion other than Islam is forbidden.

The drafters further demand that the fight against terrorism must not "discriminate" against any religion. They specifically complain about the "monitoring and surveillance of places of worship, culture and teaching of Islam." Since these are exactly the places where Islamic terrorists tend to recruit new followers, stopping such common-sense policing would render the West defenseless.

Israel said last month it will stay away from Geneva. Canada's Prime Minister Stephen Harper deserves kudos for having made that call already back in January. "We will not be party to an anti-Semitic and anti-Western hate fest dressed up as antiracism," he said.

The decision about whether to send a delegation to Durban II will be an early test of Secretary of State-designate Hillary Clinton and the new Obama Administration. Western states would best serve the antiracism cause by joining Ottawa and Jerusalem in a boycott of this hate fest.

from BBC News, 2009-Feb-16, by Flora Graham:

How The Pirate Bay sailed into infamy

The Pirate Bay was launched in 2003 and has established itself as the world's most high-profile file-sharing site. But its founders are now on trial for copyright violation and face imprisonment, if found guilty.

The Pirate Bay isn't shy about what they are doing - they are pirates, and proud of it. Their logo shows a galleon under full sail, with a cassette tape topping a skull and crossbones in a nod to the Jolly Roger.

It is an accurate characterisation, according to Swedish prosecutors, who have put three of the website's creators and one of its sponsors on trial on charges of contributing to copyright infringement.

But the defendants claim to be more Robin Hood than Bluebeard, freeing creative content from the shackles of copyright.

"There is not a cause closer to my heart," one of the founders told Wired. "This is my crusade."

The Pirate Bay website hosts BitTorrent tracker files, and claims to be the world's largest: in February 2009, they reported 22 million simultaneous users.

BitTorrent connects people so that they can share files over the internet. But users need a "tracker" link to find what they're looking for - like the index card in a library catalogue. The Pirate Bay provides an directory of these trackers, essentially becoming a library of catalogues.

It doesn't store the books, or files, itself, just the information on where to find them.

This distinction is what Pirate Bay claims will protect them under Swedish law.

"The tracker provides the user only with .torrent files which contain no copyrighted data. The actual copyrighted material is to be found on the individual machines of our users, not on our servers," says the site.

The Pirate Bay's enormous success has enraged copyright protection groups like the Motion Picture Association of America (MPAA). And the site's cheeky bravado rubs salt in the wounds. For example, it posts all of the cease-and-desist letters that it receives, including its sarcastic replies.

"Please don't sue us right now, our lawyer is passed out in an alley," says a reply to videogame giant Electronic Arts.

History

The site was founded by the Swedish file-sharing advocacy group Piratbyrån ("The Piracy Bureau") in 2003, but has been run independently since 2004.

As other file sharing websites were felled by threats and lawsuits from industry heavyweights like the Recording Industry Association of America (RIAA), the Pirate Bay held its ground.

Confident that Sweden's lax copyright laws meant that they were on the right side of the rules, the site continued to defy legal threats that caused other torrent sites, such as Isohunt, to remove links to infringing torrents upon request.

As one of the few high-profile survivors, its piece of the file trading pie grew. The site's antagonistic attitude and tangles with copyright holders and rights organisations increased its profile, and the site now claims to be among the top 100 websites in the world.

The Pirate Bay's fame became too much for Swedish authorities, and in March 2006 the site's offices were raided by police investigating allegations of copyright violations.

Truckloads of file server computers were seized, the site was closed, and three people were held for questioning, including two of the defendants in the court case, Gottfrid Svartholm Warg and Fredrik Neij.

Authorities denied that the raid was prompted by urging from the MPA, the international arm of the MPAA, but the Swedish media revealed that the MPA had met with the justice ministry in the months before the raid.

The Pirate Bay's site administrators scrambled to get the site back up and running, and with help from volunteers around the world, it was restored within three days.

Since the raid, the Pirate Bay has set up a network of servers so that shutting down any one site will only cause the site to go down for minutes. Since then, site administrators have challenged all comers to try to shut them down.

"I really want the pleasure of it being down three minutes, then up again," Frederik Neij told Wired.

With Sweden's water becoming less pirate-friendly, the Pirate Bay looked for warmer climes. In January 2007, it reportedly tried to buy Sealand, a platform in the North Sea off the Suffolk coast, which claims national sovereignty. After that fell through, the Bay raised money to buy an island, but the plan was never realised.

Some media companies have apparently decided that take matters into their own hands rather than wait for the slow pace of the Swedish courts.

In September 2007, hackers leaked six months of internal emails from anti-piracy company Media Defender, which revealed that the company was discussing hiring hackers to attack the Pirate Bay's servers.

It was the Pirate Bay's turn to go to the courts, and it filed charges against the Swedish arms of Media Defender clients such as Twentieth Century Fox, EMI and Paramount. The charges were not pursued, which also led to protests after the police investigator, Jim Keyzer, took a job for Warner Brothers, a member of the MPAA. Mr Keyzer is scheduled to be a witness in the Pirate Bay trial.

But the Pirate Bay's Robin Hood reputation was sullied in July 2007 when a reporter, posing as a potential advertiser on the site, estimated that the site was earning up to £55,000 per month that was being channelled into a front company in Switzerland.

Mr Neij has denied that his team was getting rich from operating the Pirate Bay. "I wish I earned that," he told Vanity Fair. "Do I look like I have, like, $2m?"

Gottfrid Svartholm Warg, another defendant, pointed out that they lost $60,000 worth of equipment in the raids. "It's not free to operate a website on this scale," he said.

Strongest challenge

With the Pirate Bay facing its strongest challenge yet, its administrators have not stopped rattling their cutlasses.

Mr Warg, in a webcast on Sunday, said: "What are they going to do about it? They have already failed to take down the site once. Let them fail again.

"It has a life without us."

Mark Mulligan, a digital media analyst and Forrester Research, agreed that even if the Pirate Bay was brought down by the case, the file sharing genie could not be put back in the bottle.

"The industry knows this. But they also know that they need to go through the motions, particularly with the big players. If they don't, that essentially green lights file sharing."

He points to previous industry victories against companies like Napster, which shut down the network but didn't reduce the market.

"After every victory, file sharing has got bigger. I see no reason why the same won't happen this time."

from the Wall Street Journal, 2009-Feb-17, by Bret Stephens:

Geert Wilders Is a Test for Western Civilization
If Rushdie should be defended, why not the Dutch pol?

Twenty years ago, Andres Serrano put a plastic crucifix in a glass of urine, photographed it and called it art. Conservatives in particular weren't pleased: not with Mr. Serrano, not with his picture, and not with the National Endowment for the Arts, which had forked over $15,000 in taxpayer money to support this uretic gesture.

Also 20 years ago: On Valentine's Day, 1989, the Ayatollah Khomeini issued a fatwa against Salman Rushdie, condemning him to death for supposedly blaspheming Islam in his novel, "The Satanic Verses." Iran later upped the ante by severing diplomatic ties with Britain and putting a bounty on Mr. Rushdie's head. The fatwa remains in effect today by order of Iran's Supreme Leader, Ali Khamenei.

These twin anniversaries come to mind following the British government's decision last week to ban Dutch lawmaker Geert Wilders from British soil as an "undesirable person." Mr. Wilders is also being prosecuted for hate speech in his native Holland, where he faces up to 16 months in prison if convicted. His alleged crime involves making a short film called "Fitna," which draws a straight line between Quranic verses and acts of Islamist terror. Mr. Wilders has also called for banning the Quran, which he labels a "fascist book" on a par with Hitler's "Mein Kampf."

Whatever else might be said about Mr. Wilders's travel ban and prosecution, it helps put into context the events of 1989. In the case of Mr. Serrano, liberal Americans went into a lather about defending his rights to artistic expression and freedom of speech against the parochial leaders of the religious right, men like Jesse Helms and Pat Robertson. Never mind that the worst of their threats involved withholding public funding; fundamental things were said to be at stake.

As for the Rushdie affair, after some initial hesitation most of the liberal intelligentsia on both sides of the Atlantic rallied to his cause. True, there were some dissenters: Jimmy Carter called "The Satanic Verses" a "direct insult to those millions of Muslims whose sacred beliefs have been violated" while feminist Germaine Greer declared that she "[refused] to sign petitions for that book, which was about his own troubles."

On the whole, however, the West held firm. A joint statement issued by the foreign ministers of the European Community insisted that "fundamental principles are at stake," adding that they "remain fully committed to the principles of freedom of thought and expression within their territories."

Fast forward to Mr. Wilders's situation and what's remarkable is that his most serious detractors -- those that aren't themselves Islamists or spokesmen for supposedly mainstream Muslim organizations -- tend to fall to the political left. In Holland, leaders of both the Socialist and Labor parties support the prosecution. In Britain, it's the Labour government of Gordon Brown that has enforced the travel ban. In Germany, the leftish Der Spiegel calls Mr. Wilders "pushy" and accuses him of making "hate-filled tirades." Elsewhere he is described as a "racist," an "Islamophobe," and so on.

For his part, Mr. Wilders says he hates Islam as an ideology, not Muslims as individuals, and categorically parts company with the neo-fascist European right typified by the late Jörg Haider. He has also traveled extensively in the Middle East; even Der Spiegel admits "he is not a dull racist and xenophobe."

But irrespective of Mr. Wilders's politics -- and I wouldn't be the first to point out that his calls to ban the Quran square oddly with his sense of himself as a champion of free speech -- his travails are no less significant than Mr. Rushdie's. And they present a test for both liberals and conservatives.

For liberals, the issue is straightforward. If routine mockery of Christianity and abuse of its symbols, both in the U.S. and Europe, is protected speech, why shouldn't the same standard apply to the mockery of Islam? And if the difference in these cases is that mockery of Islam has the tendency to lead to riots, death threats and murder, should committed Christians now seek a kind of parity with Islamists by resorting to violent tactics to express their sense of religious injury?

The notion that liberals can have it both ways -- champions of free speech on the one hand; defenders of multiculturalism's assorted sensitivities on the other -- was always intellectually flimsy. If liberals now want to speak for the "right" of this or that group not to be offended, the least they can do is stop calling themselves "liberals."

For conservatives, especially of the cultural kind -- the kind of people who talk about defending Western Civ. -- Mr. Wilders's case should also provoke some reconsiderations. It may not be impossible to denounce the likes of Mr. Serrano while defending the likes of Mr. Wilders. But a defense of Mr. Wilders is made a lot easier if one can point to the vivid difference between a civilization that protects, even celebrates (and funds!), its cultural provocateurs and a civilization that seeks their murder.

This is no small point. Western civilization is not simply the "Judeo-Christian tradition." It is also the civilization of Socrates and Aristophanes, Hume and Voltaire, Copernicus and Darwin; of religious schismatics and nonbelievers. This is the civilization that is now required to define itself, oddly enough, by the case of a flamboyant Dutch politician with inconsistent ideas and a bouffant hairdo. If he can't be defended, neither can Mr. Rushdie. Or Mr. Serrano. Liberals and conservatives alike, take note.

from the Wall Street Journal Europe, 2009-Feb-17, by Daniel Schwammenthal:

Britain's Surrender to Islamists
There is a direct link between the 'Rushdie Affair' and the Wilders ban.

This time, no fatwa was necessary. Two decades after Ayatollah Ruhollah Khomeini called for Salman Rushdie's murder, U.K. authorities no longer need instructions in Shariah law. In pre-emptive submission to Islamist sensibilities, Britain barred Dutch parliamentarian Geert Wilders last Thursday from entering the country and speaking at the House of Lords.

His short anti-Islam video "Fitna," which juxtaposes Quranic verses calling for jihad with footage of Islamic terror, threatened "public security in the U.K," according to the Home Office. Since Mr. Wilder has never called for violence -- in his home country, the only life threatened as a result of his work is his own -- the imagined security threat could come only from people opposed to him, i.e. Muslim radicals. Britain is punishing Mr. Wilders not for his own actions but for the hypothetical actions of his adversaries.

What makes this surrender of free speech and fairness -- the most noble of British traditions -- particularly depressing is its totality. All main British parties support the Labour government's ban against Mr. Wilders -- the so-called Liberal Democrats just as eagerly as the Tories. Contrast this with the reaction in the Netherlands. All main Dutch parties -- although they too reject Mr. Wilders's unbalanced assault on Islam -- condemned the British decision.

It's a fitting coincidence that this suppression of free speech in the motherland of parliamentary democracy happened just two days before the 20th anniversary of the fatwa against Mr. Rushdie for penning "The Satanic Verses." Khomeini reportedly never read the book that so insulted him; rumors of its alleged offensiveness were enough for the leader of the Islamic Revolution. In an eerie parallel, rumors are also enough for the leaders of Britain. Foreign Minister David Miliband admitted on Friday to the BBC that he had not seen the film that he nevertheless found to be "hateful." It seems Britain has not only adopted Islamist standards of free speech but also Islamist standards of proof.

There is a direct line between Khomeini's 1989 death sentence against the British author and last week's detention of Mr. Wilders at Heathrow Airport. The "Rushdie Affair" was the first illustration of the West's conflict with Islamists who believe that the Quran is superior to any man-made law.

The protests in Britain sparked by "The Satanic Verses" contained all the elements of Islamist intimidation and Western appeasement with which we are now so familiar. British Muslims burned the book in the streets of Britain and called for Mr. Rushdie's murder, while the police looked on passively. Leftists began their defense of Muslim fanatics -- perfected today -- as the "real" victims who should not have been provoked. And radical Muslims and their apologists for the first time claimed to represent the British Muslim community, a questionable claim that the state made official by choosing them as their dialogue partners.

"Death, perhaps, is a bit too easy for him (Mr. Rushdie)," Iqbal Sacranie, founding secretary general of the Muslim Council of Britain, said at the time. "His mind must be tormented for the rest of his life unless he asks for forgiveness to Almighty Allah." It is now "Sir Iqbal" as this "moderate" received a knighthood in 2005 "for services to the Muslim community, to charities and to community relations."

The Rushdie Affair was the first time Islamists not just ignored national and international law but acted, successfully, to supersede it. They didn't manage to stop the book's publication or to kill Mr. Rushdie -- although the Norwegian publisher and Italian translator were seriously wounded in separate attacks and the Japanese translator murdered.

But they managed to force Mr. Rushdie into hiding, foreshadowing the fate of later Islam critics -- including that of Mr. Wilders, who has been living for more than four years under 24-hour police protection. Because Khomeini's death sentence could have been carried out by any radical Muslim around the world, there was no escape for Mr. Rushdie, just as there is no escape for those on today's Islamic death lists. For Mr. Rushdie there was only the exile of "safe houses" and body guards.

His ordeal, and that of others, serve as a warning to any potential critic of Islam. This has led to what is euphemistically called "self-censorship" in the media, arts and politics, supposedly a sign of respect for Muslims' "religious feelings." But in truth such self-censorship is no act of courtesy but the result of intimidation and fear.

Islamists are relying not just on threats and violence, though. The 56-nation Organization of the Islamic Conference is pushing for changes to international law and national law in Western countries to make them conform with Shariah law. One of the main goals of the United Nations' "antiracism" conference in April in Geneva will be to commit member states to implement laws to stop the "defamation" of Islam.

No other major Western country seems to have internalized this Islamist mindset to the degree that Britain has. Radical Muslims -- homegrown and from abroad -- can freely preach hatred, but one of their critics has just been banned.

Britain's capital earned its "Londonistan" sobriquet -- supposedly coined by French counterterrorism agents in the mid-1990s -- when it became a center for Islamic radicals fleeing persecution in their Muslim home countries. These Islamists flocked to Britain precisely because of its tradition of tolerance. It's a cruel twist of history that radical Muslims have been allowed to use the freedom they found there to limit freedom for everybody else.

In October 2007, shortly after becoming prime minister, Gordon Brown gave a powerful speech on a central element of British identity: "From the time of Magna Carta," he said, " . . . there has been a British tradition of liberty -- what one writer has called our 'gift to the world.'" Mr. Brown's ill-advised tolerance of the intolerant is now threatening this treasured tradition.

Mr. Schwammenthal edits the State of the Union column.

from BBC News, 2009-Jan-21:

Islam film Dutch MP to be charged

A Dutch court has ordered prosecutors to put a right-wing politician on trial for making anti-Islamic statements.

Freedom Party leader Geert Wilders made a controversial film last year equating Islam with violence and has likened the Koran to Adolf Hitler's Mein Kampf.

"In a democratic system, hate speech is considered so serious that it is in the general interest to... draw a clear line," the court in Amsterdam said.

Mr Wilders said the judgement was an "attack on the freedom of expression".

"Participation in the public debate has become a dangerous activity. If you give your opinion, you risk being prosecuted," he said.

Not only he, but all Dutch citizens opposed to the "Islamisation" of their country would be on trial, Mr Wilders warned.

"Who will stand up for our culture if I am silenced?" he added.

'Incitement'

The three judges said that they had weighed Mr Wilders's "one-sided generalisations" against his right to free speech, and ruled that he had gone beyond the normal leeway granted to politicians.

"The Amsterdam appeals court has ordered the prosecution of member of parliament Geert Wilders for inciting hatred and discrimination, based on comments by him in various media on Muslims and their beliefs," the court said in a statement.

"The court also considers appropriate criminal prosecution for insulting Muslim worshippers because of comparisons between Islam and Nazism made by Wilders," it added.

The court's ruling reverses a decision last year by the public prosecutor's office, which said Mr Wilders's comments had been made outside parliament as a contribution to the debate on Islam in Dutch society and that no criminal offence had been committed.

Prosecutors said on Wednesday that they could not appeal against the judgement and would open an investigation immediately.

Gerard Spong, a prominent lawyer who pushed for Mr Wilders's prosecution, welcomed the court's decision.

"This is a happy day for all followers of Islam who do not want to be tossed on the garbage dump of Nazism," he told reporters.

'Fascist book'

In March 2008, Mr Wilders posted a film about the Koran on the internet, prompting angry protests across the Muslim World.

The opening scenes of Fitna - a Koranic term sometimes translated as "strife" - show a copy of the holy book followed by footage of the bomb attacks on the US on 11 September 2001, London in July 2005 and Madrid in March 2004.

Pictures appearing to show Muslim demonstrators holding up placards saying "God bless Hitler" and "Freedom go to hell" also feature.

The film ends with the statement: "Stop Islamisation. Defend our freedom."

Dutch Prime Minister Jan Peter Balkenende said at the time that the film wrongly equated Islam with violence and served "no purpose other than to offend".

A year earlier, Mr Wilders described the Koran as a "fascist book" and called for it to be banned in "the same way we ban Mein Kampf", in a letter published in the De Volkskrant newspaper. [Oops, rather undermined his own case there. -AMPP Ed.]

Mr Wilders has had police protection since Dutch director Theo Van Gogh was killed by a radical Islamist in 2004.

Correspondents say his Freedom Party (PVV), which has nine MPs in the lower house of parliament, has built its popularity largely by tapping into the fear and resentment of Muslim immigrants.

from the Times of London, 2009-Jan-11, by Jonathan Leake and Richard Woods:

Revealed: the environmental impact of Google searches
Physicist Alex Wissner-Gross says that performing two Google searches uses up as much energy as boiling the kettle for a cup of tea

Performing two Google searches from a desktop computer can generate about the same amount of carbon dioxide as boiling a kettle for a cup of tea, according to new research.

While millions of people tap into Google without considering the environment, a typical search generates about 7g of CO2 Boiling a kettle generates about 15g. “Google operates huge data centres around the world that consume a great deal of power,” said Alex Wissner-Gross, a Harvard University physicist whose research on the environmental impact of computing is due out soon. “A Google search has a definite environmental impact.”

Google is secretive about its energy consumption and carbon footprint. It also refuses to divulge the locations of its data centres. However, with more than 200m internet searches estimated globally daily, the electricity consumption and greenhouse gas emissions caused by computers and the internet is provoking concern. A recent report by Gartner, the industry analysts, said the global IT industry generated as much greenhouse gas as the world's airlines - about 2% of global CO2 emissions. “Data centres are among the most energy-intensive facilities imaginable,” said Evan Mills, a scientist at the Lawrence Berkeley National Laboratory in California. Banks of servers storing billions of web pages require power.

Though Google says it is in the forefront of green computing, its search engine generates high levels of CO2 because of the way it operates. When you type in a Google search for, say, “energy saving tips”, your request doesn't go to just one server. It goes to several competing against each other.

It may even be sent to servers thousands of miles apart. Google's infrastructure sends you data from whichever produces the answer fastest. The system minimises delays but raises energy consumption. Google has servers in the US, Europe, Japan and China.

Wissner-Gross has submitted his research for publication by the US Institute of Electrical and Electronics Engineers and has also set up a website www.CO2stats.com. “Google are very efficient but their primary concern is to make searches fast and that means they have a lot of extra capacity that burns energy,” he said.

Google said: “We are among the most efficient of all internet search providers.”

Wissner-Gross has also calculated the CO2 emissions caused by individual use of the internet. His research indicates that viewing a simple web page generates about 0.02g of CO2 per second. This rises tenfold to about 0.2g of CO2 a second when viewing a website with complex images, animations or videos.

A separate estimate from John Buckley, managing director of carbonfootprint.com, a British environmental consultancy, puts the CO2 emissions of a Google search at between 1g and 10g, depending on whether you have to start your PC or not. Simply running a PC generates between 40g and 80g per hour, he says. of CO2 Chris Goodall, author of Ten Technologies to Save the Planet, estimates the carbon emissions of a Google search at 7g to 10g (assuming 15 minutes' computer use).

Nicholas Carr, author of The Big Switch, Rewiring the World, has calculated that maintaining a character (known as an avatar) in the Second Life virtual reality game, requires 1,752 kilowatt hours of electricity per year. That is almost as much used by the average Brazilian.

“It's not an unreasonable comparison,” said Liam Newcombe, an expert on data centres at the British Computer Society. “It tells us how much energy westerners use on entertainment versus the energy poverty in some countries.”

Though energy consumption by computers is growing - and the rate of growth is increasing - Newcombe argues that what matters most is the type of usage.

If your internet use is in place of more energy-intensive activities, such as driving your car to the shops, that's good. But if it is adding activities and energy consumption that would not otherwise happen, that may pose problems.

Newcombe cites Second Life and Twitter, a rapidly growing website whose 3m users post millions of messages a month. Last week Stephen Fry, the TV presenter, was posting “tweets” from New Zealand, imparting such vital information as “Arrived in Queenstown. Hurrah. Full of bungy jumping and `activewear' shops”, and “Honestly. NZ weather makes UK look stable and clement”.

Jonathan Ross was Twittering even more, with posts such as “Am going to muck out the pigs. It will be cold, but I'm not the type to go on about it” and “Am now back indoors and have put on fleecy tracksuit and two pairs of socks”. Ross also made various “tweets” trying to ascertain whether Jeremy Clarkson was a Twitter user or not. Yesterday the Top Gear presenter cleared up the matter, saying: “I am not a twit. And Jonathan Ross is.”

Such internet phenomena are not simply fun and hot air, Newcombe warns: the boom in such services has a carbon cost.

from the Daily Press & Argus of Howell Michigan, 2008-Dec-19, by Jim Totten:

Annoying ordinance passed in Brighton

Don't annoy someone in Brighton city or you might get a ticket.

The Brighton City Council approved a more stringent code for public conduct, and those who violate the rules – including annoying someone else – could be ticketed and fined. The ordinance was modeled after one in Royal Oak, where Brighton Police Chief Tom Wightman previously was employed.

One of the sections reads, “It shall be unlawful for a person to engage in a course of conduct or repeatedly commit acts that alarm or seriously annoy another person and that serve no legitimate purpose.”

Another section states, “It shall be unlawful for any person in the city to insult, accost, molest or otherwise annoy, either by word of mouth, sign or motions any person in any public place.”

Two City Council members expressed concerns about the ordinance but ended up voting for it.

Council member Jim Bohn said some of the language was subjective.

“I'm not sure what alarm or seriously annoy means,” Bohn said.

Council member Jim Muzzin asked if he were to stand up and read “War and Peace,” during his five-minute limit at call to the public at numerous meetings, “would I be ticketed or fined?”

Paul Burns, city attorney, responded no.

Burns said City Council chambers are considered a “bastion of democracy” and the law provides a wide breath [sic -AMPP Ed.] for free speech. Burns said there could be a situation where a ticket issued violates someone's free speech, but he said his office would be reviewing these cases.

City Manager Dana Foster said enforcement would be a subjective call made by police officers. However, Foster said the rules are aimed at those who interfere in public areas as opposed to residents who are simply annoying for annoyance's sake.

The amended ordinance takes effect 15 days from approval, which is Jan. 2, 2009.

from the Chicago Tribune, 2008-Nov-13, by John Kass:

Tolerance fails T-shirt test

As the media keeps gushing on about how America has finally adopted tolerance as the great virtue, and that we're all united now, let's consider the Brave Catherine Vogt Experiment.

Catherine Vogt, 14, is an Illinois 8th grader, the daughter of a liberal mom and a conservative dad. She wanted to conduct an experiment in political tolerance and diversity of opinion at her school in the liberal suburb of Oak Park.

She noticed that fellow students at Gwendolyn Brooks Middle School overwhelmingly supported Barack Obama for president. His campaign kept preaching "inclusion," and she decided to see how included she could be.

So just before the election, Catherine consulted with her history teacher, then bravely wore a unique T-shirt to school and recorded the comments of teachers and students in her journal. The T-shirt bore the simple yet quite subversive words drawn with a red marker:

"McCain Girl."

"I was just really curious how they'd react to something that different, because a lot of people at my school wore Obama shirts and they are big Obama supporters," Catherine told us. "I just really wanted to see what their reaction would be."

Immediately, Catherine learned she was stupid for wearing a shirt with Republican John McCain's name. Not merely stupid. Very stupid.

"People were upset. But they started saying things, calling me very stupid, telling me my shirt was stupid and I shouldn't be wearing it," Catherine said.

Then it got worse.

"One person told me to go die. It was a lot of dying. A lot of comments about how I should be killed," Catherine said, of the tolerance in Oak Park.

But students weren't the only ones surprised that she wore a shirt supporting McCain.

"In one class, I had one teacher say she will not judge me for my choice, but that she was surprised that I supported McCain," Catherine said.

If Catherine was shocked by such passive-aggressive threats from instructors, just wait until she goes to college.

"Later, that teacher found out about the experiment and said she was embarrassed because she knew I was writing down what she said," Catherine said.

One student suggested that she be put up on a cross for her political beliefs.

"He said, 'You should be crucifixed.' It was kind of funny because, I was like, don't you mean 'crucified?' " Catherine said.

Other entries in her notebook involved suggestions by classmates that she be "burned with her shirt on" for "being a filthy-rich Republican."

Some said that because she supported McCain, by extension she supported a plan by deranged skinheads to kill Obama before the election. And I thought such politicized logic was confined to American newsrooms. Yet Catherine refused to argue with her peers. She didn't want to jeopardize her experiment.

"I couldn't show people really what it was for. I really kind of wanted to laugh because they had no idea what I was doing," she said.

Only a few times did anyone say anything remotely positive about her McCain shirt. One girl pulled her aside in a corner, out of earshot of other students, and whispered, "I really like your shirt."

That's when you know America is truly supportive of diversity of opinion, when children must whisper for fear of being ostracized, heckled and crucifixed.

The next day, in part 2 of The Brave Catherine Vogt Experiment, she wore another T-shirt, this one with "Obama Girl" written in blue. And an amazing thing happened.

Catherine wasn't very stupid anymore. She grew brains.

"People liked my shirt. They said things like my brain had come back, and I had put the right shirt on today," Catherine said.

Some students accused her of playing both sides.

"A lot of people liked it. But some people told me I was a flip-flopper," she said. "They said, 'You can't make up your mind. You can't wear a McCain shirt one day and an Obama shirt the next day.' "

But she sure did, and she turned her journal into a report for her history teacher, earning Catherine extra credit. We asked the teacher, Norma Cassin-Pountney, whether it was ironic that Catherine would be subject to such intolerance from pro-Obama supporters in a community that prides itself on its liberal outlook.

"That's what we discussed," Cassin-Pountney said about the debate in the classroom when the experiment was revealed. "I said, here you are, promoting this person [Obama] that believes we are all equal and included, and look what you've done? The students were kind of like, 'Oh, yeah.' I think they got it."

Catherine never told us which candidate she would have voted for if she weren't an 8th grader. But she said she learned what it was like to be in the minority.

"Just being on the outside, how it felt, it was not fun at all," she said.

Don't ever feel as if you must conform, Catherine. Being on the outside isn't so bad. Trust me.

from the Chicago Tribune, 2008-Nov-14, by John Kass:

Girl's lesson: Bias, like shirts, picked out at home

Catherine Vogt—the brave 8th grader who used a T-shirt test to find out about political tolerance in Obamaland—is something of a celebrity now, thanks to you readers of this column.

By the time you read this, she will have already finished a round of TV and radio interviews, including a PBS spot for a Philadelphia station. It's all somewhat unsettling for a 14-year-old girl who had important high school entrance exams Thursday and a tryout for "The Music Man" at Gwendolyn Brooks Middle School in Oak Park.

"Well, a lot of people came up to me and told me that they saw me in the paper, and my teacher told me that a lot of people were telling her 'Way to go, way to support your student' and everything," Catherine told me Thursday. "It's been very exciting and hectic too."

The Catherine Vogt Experiment on Diversity of Thought took place before the presidential election. She shared her idea secretly with her history teacher, Norma Cassin-Pountney.

Catherine wore a McCain shirt one day and secretly recorded the comments of teachers and students in her journal. The next day, she wore an Obama shirt and also recorded the comments.

Her findings?

When she wore the McCain shirt, she was stupid and was told to go die. One kid said she should be "crucifixed," which should prompt outrage from that student's grammar/lit teacher. Crucifixed?

One student whispered—perhaps like Winston Smith in "1984"—"I really like your shirt." But she said it quietly so no one else would hear and denounce her.

And when Catherine wore the Obama shirt? Her brains grew back and she was smart again and welcomed into polite society.

Since many liberal journalists live in Oak Park, I expect to receive many snarky reviews. My crime? I dared to illustrate, through the actions of a brave 8th-grade girl, that even high-minded liberal communities can be intolerant, no matter how many times parents gush on about "diversity" at their cocktail parties.

So much for the audacity of hope.

But it's also true that if Catherine lived in a beet-red community and wore an Obama shirt, she'd get a similar negative, intolerant and ugly reaction. And certainly some Republican children would outrage their grammar/lit teachers by wanting her crucifixed as well.

All such outrage is predictable. Whether red or blue or right or left, many adults don't get it. But Catherine Vogt sure gets it: Children learn their politics from their parents.

A kid doesn't learn to love Democrats or hate Republicans or vice versa by reading editorials. You can't blame this one on bloggers or "Grand Theft Auto." You can't even blame Fitty Cent or however he incorrectly spells his own stage name.

Many parents in Oak Park and elsewhere want their kids to figure out things for themselves. Others only want a mirror for their own tribalism. Parents, Catherine told me, "are actually a pretty big influence on kids. They take a lot of what's home to school."

At school Thursday in Ms. Cassin-Pountney's class, they discussed Catherine's experiment and my column.

"The students were mostly shocked because when they read it they kind of figured it out. They were like, 'Oh, I actually said that thing to her and now—I'm not mentioned—but I'm actually in the paper for saying something mean?' "

She said her classmates tried to determine whether she cracked and gave up their names to me, but because she's not a Chicago machine politician under federal indictment, she didn't have to name names.

"They were all like, 'So who did you mention and what did you say?' But I didn't give out any names," she said.

There were some rough patches on Thursday. The phone rang off the hook at home. She had her big tests and that tryout. And her parents—liberal Democratic mom and conservative Republican dad—had to run down to school to stave off an impromptu imposition of the Fairness Doctrine.

"Some parents were upset that one teacher remarked about her shirt. And other parents were upset that the experiment was conducted in the first place, and didn't go through 'proper channels,' " said Catherine's mom, Pamela Webster.

"So we rushed down to school to say we were backing the principal and all the teachers and not to make a big thing of it," she said. "It was just crazy. There was no crime committed here."

Not even a thought crime?

"No," she said. "We support the principal and the school. Let this be a way for students and teachers to discuss the issue. That's what we want in our home, not indoctrination but discussion."

Catherine still won't say whether she's a Democrat or a Republican.

"I still have four years to pick a guy or a woman," she said of the presidential election in 2012, which will be her first. "I've still got four more years. Then I can decide."

Catherine says she doesn't want to become a lawyer, but perhaps a surgeon. Either way, this week, she was a great teacher.

Thank you, Catherine.

from National Public Radio, 2008-Oct-9, by Robert Smith:

Vt. Man Fights For Bible Verse Vanity Plate In Court

The English write sonnets. The Japanese, haiku.

Americans have their own form of abbreviated poetry: the personalized license plate. Seven letters or numbers to say almost anything you want. But those limits are being tested in federal court by a Vermont man who tried to write a six-character ode to Jesus on his plate.

JN36TN was used car dealer Shawn Byrne's idea for a perfect license plate. The born-again Christian from West Rutland, Vt., looked forward to displaying it on his restored F-100 pickup truck.

John 3:16 is one of the most widely quoted Bible verses among evangelical Christians. "For God so loved the world that he gave his only begotten son." And some Christians try to sneak the reference into popular culture by printing it in hidden places on products and waving John 3:16 banners at sporting events. But Byrne's lawyer says the license plate wasn't meant to proselytize.

"It's straight-up religious speech," says Jeremy Tedesco, a lawyer with the Alliance Defense Fund, which represents freedom of religion cases. "People are allowed to reference anything they want, even literature, on a vanity plate. Byrne just wants a reference to his favorite Bible verse, and the state is saying no."

All states ban profanity and vulgarity on their license plates, but in polite Vermont the law goes further. Vermont bans all those subjects you aren't supposed to discuss at the dinner table — political affiliation, religion, race, drugs, sexual references.

Eve Jacobs-Carnahan, with the attorney general's office in Vermont, says a license plate is not a bumper sticker that can say whatever you want. It's state property.

"People would look at it and say, 'A state office let that go on a state license plate?' " she says.

But how do clerks at the DMV make that decision without discriminating against particular points of view? That's the question the two lawyers argued before the Second Circuit Court of Appeals. The lawyer for Byrne pointed out that Vermont has allowed plenty of license plates with controversial or religious themes like HIREPWR, PSALM64, BUDDHA, NOAHARK, ACLU 1, ANARCHY, PROLF, PRONUKE and TREHUGR.

The state of Vermont concedes that some of those slipped though the cracks. But it shows how hard it is to make a judgment call about whether something contains a controversial message or not. If Byrne had a son named Jonathan born on March 16, then JN36TN might have made it through.

As the appeals court considers the case, it will have a lot of license-plate case law to consider. Every state that has vanity plates sooner or later runs into some controversial ones.

Stefan Lonce details them in a forthcoming book about the phenomenon called LCNS2ROM: Vanity License Plates and the GR8 Stories They Tell. He keeps a Web site of banned plates, including GODZGUD, ARYAN-1, XSTACY, SHTHPNS and MPEACHW.

Lonce says it's been such a hassle for bureaucrats that at least one state, South Dakota, considered banning personalized license plates altogether. But South Dakota drivers revolted with a resounding NOTHKU.

from AfterDawn.com, 2009-Feb-14, by Rich "vurbal" Fiscus:

Apple battles EFF, calls iPhone jailbreaking piracy

Apple battles EFF, calls iPhone jailbreaking piracy After staying notably silent on the subject of jailbreaking for the first year and a half of the iPhone's existence, Apple has now submitted a document to the Library of Congress claiming that reverse engineering the iPhone's operating system is copyright infringemnt.

Their claim is in response to the Electronic Frontier Foundation's submission for the annual DMCA exemption review. Under the DMCA, the Library of Congress is allowed to allow selected activities which would normally be forbidden by the DMCA. Due to encryption used for various bits of software in it, the reverse engineering require to jailbreak the iPhone OS falls under that cateogory.

The EFF is requesting an exemption for "Computer programs that enable wireless telephone handsets to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the telephone handset."

Apple's response indicates that they consider such an exemption inappropriate because it would violate their copyrights. As the EFF points out,"Running lawfully obtained software on a smart phone does not infringe copyright, nor does the process of jailbreaking a smart phone in order to accomplish this goal."

Apple's argument against this is that the iTunes App Store provides plenty of choice. The problem with this position is that it's ultimately Apple who gets to decide what's available,not developers or consumers. They reserve the right to turn down programs, or even remove them at any time.

from PC World via the Washington Post, 2008-Dec-19, by JR Raphael:

RIAA's New Piracy Plan Poses a New Set of Problems
The RIAA is backing down from consumer copyright infringment lawsuits, but consumers should still be concerned.

The Recording Industry Association of America is taking a dangerous step with its decision to stop suing suspected music sharers and start cutting off their Internet access instead. While the discontinuation of the lawsuit practice has its merits, the move opens up a whole new can of worms -- one that could have serious implications for our future rights as consumers of information.

On the one hand, the shift -- revealed Friday, initially in a story published in The Wall Street Journal -- does mark the end of a troubling and generally ineffective process. RIAA's past practice of independently tracking down and going after individual users has raised countless questions, most of which have focused on the group's data gathering methodology. The organization has filed numerous lawsuits that have appeared to be faulty, including one now-infamous instance in which it attempted to sue a deceased woman. The woman -- who was 83 when she passed away -- "hated computers," her children said.

Most data also suggests the lawsuits have done little to curb the online sharing of copyrighted music -- rather, the number of filesharers appears to have actually increased since RIAA started its lawsuit push in 2003. A report released this past September by the Electronic Frontier Foundation notes that music sharing is "more popular than ever, despite the widespread public awareness of lawsuits." Furthermore, the report points out, "the lawsuit campaign has not resulted in any royalties to artists."

(The vast majority of RIAA's lawsuits have resulted in minimal out-of-court settlements. The sole case that went to trial -- against a mother of six named Jammie Thomas -- saw its verdict thrown out in September. That case is still scheduled to be retried.)

The new plan, while ending the era of problem-ridden legal attacks, appears to circumvent the law and instead put the power directly into the hands of RIAA. The group says it will work directly with Internet service providers to go after people it believes are illegally sharing files. RIAA will notify an ISP, which will then warn the user and ultimately suspend or discontinue his access if a change is not observed. "Major ISPs" are said to be on-board with the idea.

Effectively, RIAA has turned itself into the sheriff, and your ISP into its deputy. Based on the same data gathering and user identification methods that have come under fire from the start, RIAA will now be able to get your Internet access limited or discontinued on its own if it for some reason flags you as an illegal filesharer. And I'm not the only one left feeling a little wary about that.

"This means more music fans are going to be harassed by the music industry," saysFred von Lohmann, senior staff attorney of the Electronic Frontier Foundation.

"The problem is the lack of due process for those accused," von Lohmann continues. "In a world where hundreds of thousands, or millions, of copyright infringement allegations are automatically generated and delivered to ISPs, mistakes are going to be made. ... Anyone who has ever had to fight to correct an error on their credit reports will be able to imagine the trouble we're in for."

In essence, the music industry is trading one questionable practice for another. Striking a deal to deem itself the judge and your ISP the regulator is not the answer -- and it's not going to win the war, either.

What is the solution, then? The EFF suggests RIAA support a "voluntary collective licensing regime" -- basically, a legal peer-to-peer network that'd let music fans pay a small monthly fee for the right to freely trade music. A survey conducted this summer found an overwhelming 80 percent of current peer-to-peer users would be interested in paying for such a system. If organized, it'd put a stamp of approval on a process that's going on anyway -- and, for an inconsequential individual fee of something like $5 a month, the industry would be able to pay rights-holders based on how much their music is being downloaded.

"The more people share, the more money goes to e more freedom for fans to upload what they care about, the deeper the catalog."

The model follows the system set up for radio stations by organizations such as ASCAP and BMI. Perhaps RIAA would be wise to consider such a system, one that could serve the interests of all parties involved rather than harming them.

Here's what it boils down to: When almost every voice in earshot is crying out against the way you operate, you have to start wondering if maybe -- just maybe -- you're going about things the wrong way. The world is crying out, RIAA. It's time to start listening.

from the Wall Street Journal Asia, 2008-Nov-25:

45 Years for a Joke
In Burma, laughing at your leaders can be a crime.

"If I did not laugh I should die," Abraham Lincoln once remarked. It's a concept the people of Burma understand well. One of their most famous celebrities is a comedian known for his antiregime jokes who goes by the name Zarganar, or "Tweezers."

The junta that rules the country, however, doesn't appreciate Zarganar's sense of humor. Last week, he was sentenced to 45 years in jail for using the Internet to spread "disaffection" toward the government. Translation: laughing at your leaders can be a crime. More than 2,000 political prisoners are in jail in Burma, nearly double last year's number, according to human-rights workers.

Zarganar is one of about 100 pro-democracy activists, monks, lawyers and entertainers who have been sentenced this month. The harshest sentences have gone to monks who helped organize the Saffron Rebellion last year, but no one has gotten off light -- one antigovernment blogger got 20 years.

It may seem curious that the junta has waited until now to mete out these sentences. But regime critics say this is part of Than Shwe's master plan. He's making sure dissidents are out of the way for the country's "elections" in 2010. These will be the first elections in Burma under a new constitution, which is designed to guarantee that the military stay in power, regardless of the popular vote. He needn't worry about the opposition. Aung San Suu Kyi, leader of the National League for Democracy, has been under house arrest for most of the past two decades.

Zarganar used to tell a joke set in heaven. Various world leaders meet God and ask when their greatest ambitions will come true. Each cries when God tells them they will not live to see it. When General Than Shwe meets God, he asks when Burma will have enough water and electricity. In response, God cries.

from the Associated Press, 2008-Dec-20:

China blocks access to New York Times Web site

BEIJING — China has blocked access to the New York Times Web site, the newspaper said Saturday, days after the central government defended its right to censor online content it deems illegal.

Computer users who logged on in Beijing, Shanghai and Guangzhou received a message that the site was not available when they tried to connect on Friday morning, the paper said. Some users were cut of as early as Thursday evening, it said.

The Web site remained inaccessible from Beijing Saturday.

It was not clear if the move was meant to block specific content on the newspaper's Web site or if it was a return to stricter censorship of the Internet in general. Beijing loosened some media and Internet controls during the 2008 Summer Olympics gestures that were meant to show the international community that the games had brought greater freedom to the Chinese people.

A spokesman for the Foreign Ministry said they do not deal with Web sites. The Ministry of Industry and Information Technology, which regulates the Internet, could not be reached for comment.

Earlier this week, Foreign Ministry spokesman Liu Jianchao defended China's right to censor Web sites that have material deemed illegal by the government, saying that other countries regulate Internet usage too.

During the August games, China allowed access to long-barred Web sites such as the British Broadcasting Corp. and Human Rights Watch after an outcry from foreign reporters who complained that Beijing was failing to live up to its pledges of greater media freedom.

The New York Times said Beijing had blocked the Chinese-language Web site of the BBC, and Web sites of Voice of America, Asiaweek, and Ming Pao, a Hong Kong newspaper, earlier in the week. But apart from Ming Pao the sites were all accessible Friday, it said.

Ming Pao's online site was still inaccessible Saturday in Beijing.

China has the most online users in the world with more than 250 million, but it has also put in place a sophisticated system to police Web sites for sensitive material and routinely blocks sites that support Tibetan independence or the region's spiritual leader, the Dalai Lama.

A spokeswoman for The Times, Catherine J. Mathis, told the paper that there did not appear to be a technical issue. Users in Japan, Hong Kong, and the U.S. were also not experiencing difficulties, the paper said.

from the Wall Street Journal, 2008-Nov-29:

Singapore Strikes Again
The city-state resumes its campaign against the Journal.

Let us begin with an apology to our readers in Asia. Unless they are online, they will not see this editorial. For legal reasons, we are refraining from publishing it in The Wall Street Journal Asia, which circulates in Singapore.

Our subject is free speech and the rule of law in the Southeast Asian city-state -- something on which the international press and Singapore's government have often clashed. We can't say which side would prevail if the Singapore public could hear an open debate, but the fact is that we know of no foreign publication that has ever won in a Singapore court of law. Virtually every Western publication that circulates in the city-state has faced a lawsuit, or the threat of one.

Which brings us to the ruling against us this week in Singapore's High Court. Dow Jones Publishing (Asia) was found guilty of contempt of court for two editorials and a letter to the editor published in The Wall Street Journal Asia in June and July. The Attorney General, who personally argued the contempt case against us, characterized the articles as "an attack on the courts and judiciary of Singapore inasmuch as they impugn the integrity, the impartiality and the independence of the Court."

In suing for contempt, Singapore chose to go after us for the most basic kind of journalism. The first editorial, "Democracy in Singapore," reported on a damages hearing in a defamation case brought (and won) by former Prime Minister Lee Kuan Yew against opposition politician Chee Soon Juan. The second editorial, "Judging Singapore's Judiciary," informed readers what an international legal organization had said about Singapore's courts.

Regarding the first editorial, we'll note that court proceedings are privileged under Singapore law, which means they can be reported -- though Singapore's media rarely do the job. Mr. Chee wrote a letter in response to the first editorial, which we published and which is cited in the contempt charge. We also published two letters from Mr. Lee's spokeswoman.

In the second editorial, we reported on the International Bar Association's critical study of the rule of law in Singapore. This is the same outfit that held its annual conference in Singapore last year, a meeting that Mr. Lee himself touted as a sign of confidence in Singapore's courts. The Law Society of Singapore is a member of the IBA. If reporting on what such a body says is contemptuous of the judiciary, then Singapore is saying that its courts are above any public scrutiny.

Again, we published a letter from the Singapore government responding to the editorial. This one was from the Law Ministry, which blasted the IBA report and us for repeating its "vague allegations." The IBA then weighed in, in a posting on its Web site, saying it wished "to correct some inaccurate comments" in Singapore's letter. It invites readers to read the report and "see for themselves" that its views are "based on comprehensive examples and evidence." The IBA homepage is www.ibanet.org.

In his ruling, Justice Tay Young Kwang refers to us as a "repeat offender." He's right in the narrow sense that this isn't the first time Singapore has pursued the Journal Asia for contempt. In 1985, the newspaper and its editors were sued over an editorial about legal actions against opposition politician J.B. Jeyaretnam. The editors apologized.

In 1989, the paper was sued for contempt again, this time over a news story that quoted Dow Jones's then-president, Peter Kann. Mr. Kann had criticized a libel judgment won by Mr. Lee against the Far Eastern Economic Review, the Journal Asia's sister publication. The paper, its editor, publisher, local distributor and local printer were all named. They lost.

We are not eager to return to that fractious era, when the Journal Asia had its circulation severely restricted in Singapore and the paper's reporters were unwelcome. Since 1991, when the newspaper and Mr. Lee reached a settlement, our relationship with Singapore had been more or less stable until the latest contempt charge.

Meanwhile, in September, the Far Eastern Economic Review lost a defamation case brought by Mr. Lee and his son, current Prime Minister Lee Hsien Loong, over an interview it published with opposition leader Mr. Chee. The elder Mr. Lee has long used defamation suits to silence his critics in the press and among the political opposition.

As for this week's contempt ruling, the first line of Justice Tay's decision is revealing as a standard for Singapore justice. "Words sometimes mean more than what they appear to say on the surface," he writes, going on to interpret the words as contemptuous because they had an "inherent tendency" to "scandalise the court." The fine he levied, S$25,000 ($16,500), is the largest ever meted out for such an offense. Justice Tay expressed the hope that it will deter "future transgressions."

We'll pay the fine. We'll also continue to express our views about politics, the courts and other subjects that we think our readers should know about. And we'll let readers decide what to make of the judiciary in Singapore.

from the Hollywood Reporter via Reuters, 2008-Nov-26, by Paul Bond:

Senators pushing for return of equal-time rules

LOS ANGELES - The Fairness Doctrine, which forced broadcasters to offer equal time to both sides of controversial issues, was abolished in 1987, paving the way for talk radio to take the opinionated -- and popular -- form it has today.

Now, House Speaker Nancy Pelosi and such influential Democratic senators as Barbara Boxer and Chuck Schumer are pushing for its return, or something like it. Could the equal-time provisions pull a Don Imus and make a radio comeback?

It could, industry insiders say. And the government-mandated programing restrictions that come with it could hobble an already struggling industry. Talk-radio hosts are unlikely to accept a new Fairness Doctrine without a fight, though. Rush Limbaugh and Sean Hannity are among those already railing against it daily.

By some estimates, conservatives on talk radio dominate liberals by a ratio of 10-to-1, hence the call by some liberals to bring back the Fairness Doctrine. But Rep. Mike Pence (R-Ind.) inserted language into the Federal Communications Commission's current budget barring it from being reinstated this year.

With the year drawing to an end and Barack Obama moving into the White House, talk about the Fairness Doctrine has heated up. Obama likely will name a new FCC chairman and make Democrats a majority on the five-person panel for the first time in eight years.

Addressing Imbalance

Obama has called on Henry Rivera, who was a commissioner in the 1980s when the Fairness Doctrine existed, to oversee the FCC transition process. Rivera is a supporter of bringing back the provisions. And heading Obama's overall transition team is John Podesta, head of liberal think tank the Center for American Progress. Last year, the CAP issued a report called "The Structural Imbalance of Political Talk Radio."

While the CAP stopped short of advocating a return of the Fairness Doctrine, it did support more stringent adherence to so-called localism, which critics consider a back door to requiring that stations ditch some of their conservative hosts.

The FCC is considering the matter now, weighing such questions as whether to require stations to create "community advisory boards" made up of "local officials and other community leaders." The boards would tell radio executives whether the content they broadcast is adequately addressing the needs of the community, subject to the board's interpretation.

"The disparities between conservative and progressive programing reflect the absence of localism in American radio," the CAP said. The group suggests that radio broadcast licenses be renewed every three years instead of eight and that stations that don't prove they are operating "on behalf of the public interest" be denied license renewals or be fined.

Podesta suggests that fines would go to the Corporation for Public Broadcasting, which operates National Public Radio. He figures that the fees could amount to a $250 million annual transfer of wealth from radio companies to the CPB.

Podesta presented his ideas to a group of Democratic senators, including California's Dianne Feinstein. The group tossed around ideas like the Fairness Doctrine, localism and reducing the size of radio conglomerates, all in the name of making talk radio more "progressive," said Stephanie Miller, an attendee of the meeting.

"With Democrats in control, it's a whole new ballgame, and hopefully it will be good for progressive radio," said Miller, a popular liberal talk-radio host.

Miller said she's against the Fairness Doctrine and localism but noted that something needs to be done to encourage radio stations to include more liberals on their talent rosters. "I can't make the kind of money on 60 stations that (Sean) Hannity makes on 600. That's the kind of fairness I'm talking about," she joked.

Profit Concerns

Some radio executives fear that fines would further strain an already struggling industry. Shares of such publicly traded radio companies as Salem Communications, Citadel Broadcasting and Cumulus Media are all down more than 90 percent in the past year amid a continuing advertising slump and a weak U.S. economy.

If the Fairness Doctrine, or a version of it, returns, radio insiders say stations might opt to alter their formats entirely rather than dump some of their talk hosts for ones with less marketable track records in order to provide equal airtime to different views.

"A Fairness Doctrine wouldn't be a death knell, just Stage 3 cancer," said Tom Tradup, vice president news/talk at family- and religion-oriented station group Salem.

But localism is actually a bigger threat because the FCC could introduce it without being accused of trampling on free speech, radio host Michael Medved said. "The Fairness Doctrine is outrageous, but our chances of stopping it are excellent," he said.

Obama, for one, has said he opposes the Fairness Doctrine but supports localism.

Not surprisingly, trade association the National Association of Broadcasters is against any measures that would cast clouds over its members' ability to air profitable content, no matter what the political orientation.

"I don't want to sound sappy," NAB spokesman Dennis Wharton said, "but that's bad for America. Who thinks the government should limit free speech?"

Talk-show host Glenn Beck has been a passionate opponent of the Fairness Doctrine and localism. "Talk radio is the only format where the audience can immediately talk back," he said. "Instead of trying to silence their voices, politicians should start listening to them."

from the Wall Street Journal's Political Diary, 2008-Nov-26, by John Fund:

Viewers to Beeb: Drop Dead

Everyone in Britain who owns a television must pay a license fee to support the official British Broadcasting Corporation. The current fee is about $210 a year and subsidizes some 75% of the BBC's budget. The BBC has long been a stern bill collector, and last year prosecuted over 151,000 people for not ponying up. Meanwhile, other British TV networks have to sell advertising to support themselves.

But the license system is now under assault as more and more Brits are practicing civil disobedience. A turning point in the refusenik revolt may have come this month when an internal BBC report blasted network executives for allowing BBC host Jonathan Ross, who earns $9 million a year as the network's highest-paid entertainer, and Russell Brand, a comedian who hosts a BBC radio show, to use Mr. Brand's show to leave a series of obscene messages on the answering machine of 78-year-old Andrew Sachs, an actor best known in the U.S. for playing the Spanish hotel worker "Manuel" in the 1970s comedy classic "Fawlty Towers."

The messages, which were left after Mr. Sachs innocently failed to call in as a guest, included Mr. Brand's claim he had slept with Mr. Sachs' granddaughter, whom he called a "satanic slut." In a second call, he joked about the retired actor hanging himself as a result of their comments. The report criticized BBC executives who were said to have found the calls "very funny."

In the ensuring uproar, Mr. Ross was suspended for three months and Mr. Brand left the network. The scandal coincidentally came amid a growing debate about the BBC's license fee and revelations about just how many prominent public figures have been refusing to pay it, many of whom the network hasn't been prosecuting for fear of creating martyrs.

Vladimir Bukovsky, who spent ten years in Soviet gulags as a dissident, is one refusenik. He says he hasn't paid his fee since 2002 in protest of the BBC's media bias and he claims that 2,000 people who have joined him haven't been prosecuted. "I wanted people to see images of me being handcuffed and dragged into court," he told the London Times. "But instead the BBC retreated quietly."

The BBC may have to retreat further as proposals are now being debated inside the government to reduce its subsidy or share it with other broadcasters. David Davies, a Conservative Member of Parliament, says: "Any more scandals like this and the license fee will become untenable."

Indeed, last year an official BBC report found that the corporation was institutionally biased, especially in its treatment of climate change, poverty, race and religion. There is a growing sense that, in an era of broadcast plenty, it's ludicrous that a quasi-monopoly broadcaster such as the BBC can force British citizens to subsidize its biased and frequently juvenile programs.

from Radio Equalizer blog, 2008-Nov-6, by Brian Maloney:

Meet Talk's Executioner
Obama's 'Fairness Doctrine' Czar Chosen, AAR Expects Benefit

Ahead of a widely-expected crackdown on free speech and political dissent by the incoming Obama administration, our Dear Leader has appointed a new FCC transition czar to oversee the process.

Henry Rivera, a longtime radical leftist, lawyer and former FCC commissioner, is expected to lead the push to dismantle commercial talk radio that is favored by a number of Democratic Party senators. Rivera will play a pivotal role in preventing critics from having a public voice during Obama's tenure in office.

Rivera, who resigned from the FCC nearly a quarter-century ago during the Reagan years, believes in a doctrine of "communications policy as a civil rights issue".

His exit during the Reagan Administration paved the way for the Fairness Doctrine's repeal when the late president appointed Patricia Diaz Dennis in 1986 to fill out the rest of Rivera's term. Had this not occurred, talk radio as we know it today would not exist.

That gives Rivera's new task a great deal of personal urgency: it's a late-career, second chance opportunity to shut down opposition voices that have been allowed to flourish since his depature from the commission.

In particular, Rivera is known for his push for more minority broadcasting ownership, but this issue has largely been rendered obsolete as former commercial broadcasting empires teeter on the brink of bankruptcy.

Rivera's first opportunity to eliminate commercial talk radio will occur in June 2009, as the term of Republican Robert McDowell expires and he can be replaced with a pro-Fairness Doctrine Democrat. That will give the commission a three-vote Democratic majority, though the final two seats must remain in Republican hands.

If they can strong-arm one of the three Republicans into leaving early, this can be implemented even sooner.

One issue facing Rivera and Obama's new commissioner is how the policy will be carried out. According to data from the 1970s, when the old doctrine regulated the content of speech on the radio, the FCC was forced to utilize a great deal of its resources sifting through tens of thousands of "unfairness" complaints. The FCC's staff might have to be increased substantially to accommodate listeners looking to censor radio programming in their area.

Meanwhile, Air America Radio apparently believes liberal talk radio will benefit from the Fairness Doctrine's implementation! In an interview with a broadcast trade publication, Air America CEO Bennett Zier seems to believe that conservative stations would be forced to carry libtalk programming in order to comply with the law (but wouldn't libtalk stations also be required to run conservatives?):

RADIO INK: What do you think of all the speculation about the return of the Fairness Doctrine? Would that be a big problem for Air America?

BENNETT ZIER: If there's a Fairness Doctrine, one would say that would be a good thing for left-of-center talk. But I think if Air America puts forth relevant, entertaining, provocative content, it'll be a balance. People will be interested in what we want to do. We believe that we need to control our own destiny, and we're going to do that by giving the listeners, the viewers, and the readers what they want in a lot of different technologies.

But this is delusional, as Air America's wildly unpopular talk programming will merely speed the demise of commercial radio if forced upon the industry's most-successful stations, which happen to be conservative talkers.

That could move the rest of the medium to the Internet and satellite radio, where Air America is already heard. The result would be a wipeout of a number of liberal radio executives who supported Obama.

Successful attempts by Democrats to suppress free speech will probably be cloaked, using different terminology and phony justifications. Don't be fooled: the only reason for this crusade is to wipe out every trace of political dissent.

from CNSNews.com, 2008-Nov-4, by Michael W. Chapman, Managing Editor:

Democratic Senator Schumer Defends Fairness Doctrine to Regulate Talk-Radio Speech

People who oppose the Fairness Doctrine for talk radio are the same people who, ironically, want the government to step in and keep pornography off the radio or TV, said Sen. Charles Schumer (D-N.Y.) on Tuesday.

The Fairness Doctrine, a federal regulation that requires equal time for the expression of different political views on the public airwaves, was abandoned by the Reagan administration in 1987. Set by the Federal Communications Commission (FCC), the regulation, supported by many leading Democrats, could be re-instated by the next president.

“The very same people who don’t want the Fairness Doctrine want the FCC [Federal Communications Commission] to limit pornography on the air. I am for that,” Schumer told Fox News on Tuesday.  “I think pornography should be limited. But you can’t say, ‘government hands off in one area’ to a commercial enterprise, but you’re allowed to intervene in another. That’s not consistent.”

There is a difference between radio or television broadcast over the public airwaves and a private medium, such as a Web site or printing press, said Schumer.

“This is not like printing a broadside,” said Schumer. “You would never say that anyone who wanted to hire a printing press or go on a computer has to have any [political] view. Do you think we should allow people to put pornography on the air? Absolutely not, particularly on television and radio.”

Conservative talk radio is commercially successful and has outpaced liberal talk radio over the years.  Rush Limbaugh, for instance is the top talker with a weekly minimum audience of 14.2 million listeners, according to the October issue of Talkers Magazine.

The No. 2 talker is conservative Sean Hannity, with 13.2 million listeners a week, followed by conservatives Michael Savage (8.2 million) and Dr. Laura Schlessinger (8.2 million).  Glenn Beck is fourth with 6.7 million listeners, followed by Laura Ingraham and Mark Levin, both with 5.5 million listeners.  All three are conservatives.

The closest competitor on the political left is Ed Schultz, who is tied in 11^th place with conservative Jerry Doyle and “paranormalist” George Noory. All three have a weekly minimum audience of 3.0 million, according to Talkers Magazine.

Conservative talk radio hosts, especially Hannity, Limbaugh, and Levin, have been warning their listeners for a year that a Democrat-controlled Congress and a Democratic president in 2009 would seek to re-impose the Fairness Doctrine. 

Conservatives largely oppose the regulation because they see it as government trying to stifle or undercut conservative viewpoints. “We have members of Congress brazenly talking about silencing people they disagree with,” said Levin on his Oct. 22 broadcast. “They are brazenly talking about it and not a single mainstream media source gives a damn. They don’t care about free speech. They care about their speech. They care about their propaganda.”

On June 24, House Speaker Nancy Pelosi (D-Calif.) attended a breakfast hosted by The Christian Science Monitor. Asked about the Fairness Doctrine by Human Events newspaper, Pelosi said, “yes,” she supported reinstating it. In June 2007, Sen. John Kerry (D-Mass.) said: “I think the Fairness Doctrine ought to be there, and I also think the equal time doctrine ought to come back. … [O]ne of the most profound changes in the balance of the media is when the conservatives got rid of the equal time requirements, and the result is that they have been able to squeeze down and squeeze out opinion of opposing views, and I think its been a very important transition in the imbalance of our public eye.”

In defending the Fairness Doctrine, Schumer told Fox News, “I think we should all try to be fair and balanced, don’t you?”

from the Wall Street Journal via OpinionJournal.com, 2007-Oct-11, by Daniel Henninger:

Hillary Talks About 'It'
Would she defend Rush Limbaugh's speech rights against the left?

In an interview in yesterday's Washington Post, Hillary Clinton said she had contributed to the country's mood of bitter partisanship and wants to "put an end to it." The senator hedged her words for future revision by referring to the problem throughout the interview only as "it."

Thus, she spoke of "having gone through it, having been on the receiving end of it and in campaigns that were hard fought maybe on the giving end of it . . ." When the reporters pressed her to explain her views on polarization, she said: "I've talked about it a lot, and I think I will continue to talk about it in a lot of different ways."

It's a start. I would like to put a question to the senator: Would you defend Rush Limbaugh's speech rights against the pressure that was brought upon him on the floor of the Senate by your colleagues Harry Reid and Ken Salazar? Colorado's Sen. Salazar went so far last week as to say he'd support a Senate vote to "censure" Mr. Limbaugh. Rhymes with censor.

When Sen. Reid attacked Mr. Limbaugh on the floor of the Senate, some felt that Mr. Limbaugh was a big boy and perfectly capable of defending himself. I'm not so sure. If Mr. Limbaugh and his critics at Media Matters want to have a street fight, that's their business. But Sens. Reid and Salazar aren't just a couple of opinionated guys; they are agents of state authority, and they were leaning hard on Mr. Limbaugh. If you are Media Matters, if you are a man or woman of the Left, does state pressure on someone's political speech discomfort you? Or is it a welcome, even defensible, repression of harmful right-wing speech?

---

This controversy over talk-show hosts is usually fought around Democratic efforts of late to resurrect the Fairness Doctrine. The purpose of this effort--the reason Sen. Reid has attached himself to it--is to suppress voter turnout on the right and lift it on the left.

Political talk-radio since its inception has energized voters on the right. In the 2000 presidential election, the left found its own voter-turnout instrument in Howard Dean's Web-based "netroots," now led by MoveOn.org and other leftwing or "progressive" sites such as Daily Kos and Media Matters.

Some of the left-wing sites, however, also do fund raising and political organizing, as in the netroots campaigns against Democratic politicians who didn't hear that dissent is dead. Talk radio does neither. Its hosts mainly excite people. Reimposing the Fairness Doctrine, essentially a toxic cocktail of boredom, would cause a narcotized right-wing base to sit on its hands, handing an advantage in the turnout wars to the (properly) unregulated political organizers of the left-wing Web.

While Mr. Limbaugh fought off the Democratic Senate in one corner, the commentator Juan Williams also found his speech and job status under pressure from Media Matters. In the same week that Mr. Williams, a Fox commentator, appeared on Bill O'Reilly's show to speak critically of black culture, his bosses at NPR rejected a White House request to have Mr. Williams interview President Bush on race.

In a Media Matters posting on all this, Eric Boehlert wrote that "real damage is being done to NPR by having its name, via Williams, associated with Fox News' most opinionated talker." Noting that Mr. Williams supported Clarence Thomas's nomination, Mr. Boehlert said there are "better advocates for genuinely liberal positions," and suggested "now is the time for [NPR] to address the growing problem."

In a now-famous remark this summer at the Kos convention of progressive bloggers, Sen. Clinton described "a real imbalance in the political world" and praised the growth of "progressive infrastructure--institutions that I helped to start and support like Media Matters."

Who threw the first stone in these media-driven bloodlettings? Good question. But to my knowledge the right has no equivalent to "repressive tolerance," the aggressive theory of scorched-earth political argument laid out in the hothouse years of the 1960s by the late left-wing political philosopher Herbert Marcuse. Just last November, in an admiring essay for the Chronicle of Higher Education, the left polemicist Stanley Fish aptly summed up Marcuse's assertion that "liberal" notions of tolerance for political speech should be overturned.

The rationale for this notion is that standard tolerance is rigged against the left. In practice, tolerance extends only to the ideas and beliefs of the powerful, while it shuts out ideas on behalf of the weak or "marginalized"--the poor, minorities, women and the rest. Mr. Fish says liberals fail to see "the dark side of their favorite virtue."

Prof. Fish has an alternative to traditions of tolerance, and to anyone awash in American politics today it will sound familiar: "That is to say, and Marcuse says it, anything the right does is bad and should not be tolerated; anything the left does is good and should be welcomed." This would explain the emotional intensity and animosity in politics now: The other side no longer deserves minimal respect.

It's not enough to disagree with conservative viewpoints; one has to undermine and delegitimize them. Mock them. Put them beyond the pale. Incidentally, Marcuse, Fish and others on the left who want to "withdraw" tolerance from the speech and ideas of their opponents count centrist Democrats among them. That is what happened to Joe Lieberman.

---

Digital technology now fixes someone's random remark forever in the ozone amber of the Web or YouTube. It's easy to make anything anyone may say, such as "macaca," a weeks-long campaign to diminish or even destroy the sayer. Wherever the nonbeliever Marcuse is now, this tool would have put him in heaven. I find it putting us closer than I'd like to be to an American "Lives of Others," media monitors always listening for the vulnerable spoken word.

Sen. Clinton this week told the Post, "I intend to build a centrist coalition." That may depend on how one defines centrist. For her progressive bloggers at Media Matters the center on tolerating speech likely falls closer to Prof. Marcuse than John Locke. So which is it? This summer Sen. Clinton said she was a founder of Media Matters, and this week she said she was a centrist. That doesn't compute. Perhaps in a year we'll know which side she's on.

Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Thursdays in the Journal and on OpinionJournal.com.

from Investor's Business Daily, 2008-Oct-28:

Axis Of Bias

Media: A major newspaper suppresses damning video of Barack Obama partying with pro-terrorism radicals. Meanwhile, Obama punishes news outlets that do their jobs. Fairness Doctrine anyone?

Los Angeles Times owner Sam Zell must have thought of the Chicago Cubs when he OK'd the layoff of 75 editorial employees this week. Zell owns the lovable loser Cubs, who haven't won the World Series in a century, and the liberal media are turning into the Cubs of modern communications.

But news-hungry consumers don't find it lovable when the media elite keep important stories to themselves. John McCain has demanded that the L.A. Times release its videotape of a 2003 farewell party in Chicago at which Obama is said to have grandly toasted guest of honor Rashid Khalidi, the late PLO head Yasser Arafat's spokesman. (Ex-terrorist Bill Ayers may have been there too.)

But the Times apparently doesn't think Americans are entitled to see Obama praising a terrorist mouthpiece before they decide whether to make him president for four years. Similarly, major news outlets buried this week's story of Obama calling for "major redistributive change" in a newly discovered 2001 radio interview.

But if you think we've got an unholy alliance between liberal Democrats in Washington and this country's media elite now, just watch what happens if Obama becomes president with a Democratic Congress — especially if it features a filibuster-proof Senate.

Major Democratic congressional leaders like Senate Majority Whip Richard Durbin of Illinois, 2004 presidential nominee Sen. John Kerry of Massachusetts and House Speaker Nancy Pelosi want the reinstitution of the outdated, pre-Internet "Fairness Doctrine." They want to counter the news revolution in which blogs and talk radio have taken on the Big Three TV networks.

The Obama campaign claims Obama opposes a new Fairness Doctrine, but City Journal editor Brian C. Anderson doesn't think a President Obama would veto such a bill. Moreover, Obama and most Democrats want to impose more "local accountability" on broadcasters, "setting up community boards to make their demands known when station licenses come up for renewal," as Anderson notes.

This measure is "clearly aimed at national syndicators like Clear Channel that offer conservative shows," Anderson says. "It's a Fairness Doctrine by subterfuge." Obama would pair that with relicensing stations every two years instead of the current eight.

We have already seen that Obama's forces have no scruples about punishing media organizations who do not act as disciples of "The One." Newswomen with both WFTV in Orlando, Fla., and the CBS affiliate in Philadelphia dared to ask running mate Joseph Biden about Obama's plans to "spread the wealth," as he infamously told Ohio's Joe the Plumber. The Obama campaign let the journalists know they were now personae non grata.

With both the executive and legislative branches firmly in the power of the most liberal leadership ever — Obama, Pelosi and Senate Majority Leader Harry Reid — it is naive to think they would not move against those who most threaten their prospects in the midterm elections of 2010. And that is Fox News and conservative talk radio, supported by the blogosphere.

The establishment media and liberal Democrats constitute an axis of bias, arming to threaten the free speech of Americans. George Orwell, call your office.

from RealClearPolitics.com, 2008-Oct-11, by Michael Barone:

Obama vs. Free Speech

"I need you to go out and talk to your friends and talk to your neighbors," Barack Obama told a crowd in Elko, Nev. "I want you to talk to them whether they are independent or whether they are Republican. I want you to argue with them and get in their face." Actually, Obama supporters are doing a lot more than getting into people's faces. They seem determined to shut people up.

That's what Obama supporters, alerted by campaign emails, did when conservative Stanley Kurtz appeared on Milt Rosenberg's WGN radio program in Chicago. Kurtz had been researching Obama's relationship with unrepentant Weather Underground terrorist William Ayers in Chicago Annenberg Challenge papers in the Richard J. Daley Library in Chicago -- papers that were closed off to him for some days, apparently at the behest of Obama supporters.

Obama fans jammed WGN's phone lines and sent in hundreds of protest emails. The message was clear to anyone who would follow Rosenberg's example. We will make trouble for you if you let anyone make the case against The One.

Other Obama supporters have threatened critics with criminal prosecution. In September, St. Louis County Circuit Attorney Bob McCulloch and St. Louis City Circuit Attorney Jennifer Joyce warned citizens that they would bring criminal libel prosecutions against anyone who made statements against Obama that were "false." I had been under the impression that the Alien and Sedition Acts had gone out of existence in 1801-02. Not so, apparently, in metropolitan St. Louis. Similarly, the Obama campaign called for a criminal investigation of the American Issues Project when it ran ads highlighting Obama's ties to Ayers.

These attempts to shut down political speech have become routine for liberals. Congressional Democrats sought to reimpose the "fairness doctrine" on broadcasters, which until it was repealed in the 1980s required equal time for different points of view. The motive was plain: to shut down the one conservative-leaning communications medium, talk radio. Liberal talk-show hosts have mostly failed to draw audiences, and many liberals can't abide having citizens hear contrary views.

To their credit, some liberal old-timers -- like House Appropriations Chairman David Obey -- voted against the "fairness doctrine," in line with their longstanding support of free speech. But you can expect the "fairness doctrine" to get another vote if Barack Obama wins and Democrats increase their congressional majorities.

Corporate liberals have done their share in shutting down anti-liberal speech, too. "Saturday Night Live" ran a spoof of the financial crisis that skewered Democrats like House Financial Services Chairman Barney Frank and liberal contributors Herbert and Marion Sandler, who sold toxic-waste-filled Golden West to Wachovia Bank for $24 billion. Kind of surprising, but not for long. The tape of the broadcast disappeared from NBC's Website and was replaced with another that omitted the references to Frank and the Sandlers. Evidently NBC and its parent, General Electric, don't want people to hear speech that attacks liberals.

Then there's the Democrats' "card check" legislation, which would abolish secret ballot elections in determining whether employees are represented by unions. The unions' strategy is obvious: Send a few thugs over to employees' homes -- we know where you live -- and get them to sign cards that will trigger a union victory without giving employers a chance to be heard.

Once upon a time, liberals prided themselves, with considerable reason, as the staunchest defenders of free speech. Union organizers in the 1930s and 1940s made the case that they should have access to employees to speak freely to them, and union leaders like George Meany and Walter Reuther were ardent defenders of the First Amendment.

Today's liberals seem to be taking their marching orders from other quarters. Specifically, from the college and university campuses where administrators, armed with speech codes, have for years been disciplining and subjecting to sensitivity training any students who dare to utter thoughts that liberals find offensive. The campuses that used to pride themselves as zones of free expression are now the least free part of our society.

Obama supporters who found the campuses congenial and Obama himself, who has chosen to live all his adult life in university communities, seem to find it entirely natural to suppress speech that they don't like and seem utterly oblivious to claims that this violates the letter and spirit of the First Amendment. In this campaign, we have seen the coming of the Obama thugocracy, suppressing free speech, and we may see its flourishing in the four or eight years ahead.

from Fox News, 2008-Oct-31, by Bonney Kapp:

Obama Camp Pares Down Press Corps

DES MOINES - Today it was learned that three reporters covering the Obama campaign will no longer be permitted to fly on Obama's chartered 757 beginning Sunday, just two days before Election Day.

The reporters represent three papers whose editorial pages each endorsed McCain for president: The Dallas Morning News, The New York Post, and The Washington Times. Ebony and Essence - Obama-friendly publications - will take their seats on the plane.

All three news outlets have had reporters traveling to some capacity with the campaign during the course of the general election, but unlike outlets like The Washington Post and the New York Times, it has not been consistently. Ebony and Essence, who will be traveling throug the end of the road, have been on the road only occasionally.

“Unfortunately, demand for seats on the plane during this final weekend has far exceeded supply, and because of logistical issues we made the decision not to add a second plane. This means we've had to make hard and unpleasant for all concerned decisions about limiting some news organizations and in some cases not being in a position to offer space to news organizations altogether,” a spokesperson from the campaign explained.

The campaign points out that the ousted reporters are encouraged to cover the events, and they'll provide assistance with hotel rooms, space at events, and the same information disseminated to the traveling press. “Which means the only thing they don't get is a seat — they have access to everything else,” a staffer noted. But with multiple events spanning the United States in the coming days, reporters traveling outside of “the bubble” will not logistically be able to cover each event.

It's easy to draw the conclusion that the reporters were slighted because of unfavorable or less than glowing coverage, but to be fair, it should be noted that just today on the flight to Iowa, FOX News - hardly an Obama campaign favorite - had four coveted seats on the cramped campaign plane.

Each news organization (yes, even the New York Times) has had their number of seats limited, meaning that if a big shot wants to swoop in to cover the end, in theory, someone will have to forego a seat.

Of course all of this might have been avoided if the campaign had reconfigured the plane differently. While staffers lounge in business class seats, press and Secret Service sit three-to-a-row in the two rear cabins of the same size.

Among the newspapers expected to travel regularly for the next four days: USA Today, The New York Times, The Chicago Tribune, The Chicago Sun-Times, The Washington Post, The Wall Street Journal, The New York Daily News, The Boston Globe, The Los Angeles Times, and McClatchy. Politico and Slate also have slots.

from WorldNetDaily, 2008-Oct-27, by Aaron Klein:

Obama's 'authoritarian media practices' slammed

All freedom-loving Americans and independent-minded journalists must be concerned about the authoritarian actions practiced in recent days by Sen. Barack Obama's campaign, which cut off future interviews to a local news network after its anchor dared to ask legitimate but pressing questions to Democratic vice presidential candidate Sen. Joe Biden.

The boycott move is a direct threat to what little is left of America's free press, highlighting to reporters the ramifications of questioning the Obama campaign on issues it doesn't want to talk about.

As a Mideast reporter, I've seen this kind of action before. It's routinely practiced by Middle East dictators and has resulted in an intimidated press corps which toes the jihadist line, in part out of fear of having their contacts cut off.

During the exchange in question, labeled as "hostile" by the Obama campaign, WFTV Orlando's Barbara West started an interview by asking Biden whether he was embarrassed about the "blatant attempts to register phony voters by ACORN," stating Obama had been tied to the controversial organization which has been convicted in massive cases of voter registration fraud.

Biden responded: "I am not embarrassed by it. We are not tied to it. We have not paid them one single penny to register one single solitary voter ... so there is no relationship ... We haven't paid Acorn a single penny to register one single voter."

Biden's response is false and misleading.

As WND first reported, Obama's campaign indeed paid more than $800,000 in services to Citizen Services Inc., or CSI, a nonprofit organization that is an affiliate of ACORN and works from the organization's offices. The payments, listed for "stage, lighting or sound," stood out in FEC filings since CSI does not offer services for stage, lighting or sound. The Obama campaign amended the FEC reports in August and September to claim the payments to CSI were for get-out-the-vote efforts, which means the Obama campaign absolutely paid an affiliate of ACORN to help register voters.

Biden's attendant claim there is "no relationship" between Obama and ACORN is also untrue. In 1992, Obama was director of Project Vote in Chicago, which helped register 150,000 voters on the city's South Side and whose parent company is registered at the same New Orleans address in which ACORN and multiple ACORN affiliates are housed. Obama's campaign claims ACORN was "not part of" Project Vote, but Obama himself previously stated ACORN was "in the middle" of Project Vote.

Obama and other Chicago attorneys won a 1995 suit on behalf of ACORN, forcing the state of Illinois to implement the federal "motor-voter" bill. In the early 1990s Obama conducted two train courses for ACORN activists. While Obama served alongside Weathermen terrorist Bill Ayers on the board of the Woods Fund, a Chicago nonprofit, he helped channel millions of dollars to ACORN and affiliated groups.

But back to the interview. West went on to quote Karl Marx and asked Biden how Obama's comment to Joe the Plumber about spreading the wealth was not a Marxist ideal.

Biden, visibly taken aback, retorted, "Are you joking? Is this a joke, or is that a real question?"

He later said to West, "I don't know who's writing your questions."

West was not off the mark in her line of questioning about socialism, although her delivery could have been more appropriately tempered. Just last week, WND reported strong evidence has emerged that Obama belonged in 1996 to the now-defunct socialist New Party. It sought to elect members to public office with the aim of moving the Democratic Party far leftward to ultimately form a new political party with a socialist agenda.

Obama's campaign furiously retaliated for the West interview by refusing future sit-downs with the Orlando news channel and unilaterally canceling a scheduled chat with Biden's wife, Jill.

Adrianne Marsh, Florida spokeswoman for Obama’s campaign, ruled, "This [Jill Biden's] cancellation is non-negotiable, and further opportunities for your station to interview with this campaign are unlikely, at best for the duration of the remaining days until the election."

Marsh characterized West as "both combative and woefully uninformed about simple facts" and claimed West's insistence that Obama was an organizer for ACORN was "100 percent false."

We have seen the Obama campaign repeatedly deny or minimize provable facts and associations, such as Obama's ties to Ayers, ACORN, or pro-PLO Professor Rashid Khalidi. There's nothing new this time around.

The worrying escalation is the Obama camp's immediate clamp-down on West's news program, an affront to journalists everywhere.

There are only a handful of reporters conducting real, independent investigations of Obama anyway, so this draconian move will probably not have much of a direct impact on the pathetic state of "reporting" in this presidential election.

But the Obama-Orlando boycott could have far-reaching, long-term consequences should Obama take the White House. Reporters have taken note and will likely think twice in the future before bringing up legitimate issues that call into question Obama's leadership and its reifications for the U.S.

Talk radio must immediately be placed on high alert in response to the West incident and amid reports Democrat senators are itching to revive some version of the Fairness Doctrine, which aims to silence non-liberal viewpoints.

The type of media oppression evidenced by the Obama camp is regularly practiced in the Middle East, where (excluding Israel) independent journalism is virtually nonexistent. Most media outlets in my neck of the woods are state run. The Palestinian Authority has previously shut down access for reporters who strayed from the Palestinian narrative of Israeli "aggression" toward Palestinian "victims." Syria once refused to let me enter the country for fear that as a Jew and truth-seeking journalist I may shine a light on the rogue Damascus regime. Egypt has arrested reporters for questioning the leadership of Egyptian President Hosni Mubarak.

The outlook for the already grim future state of reporting during an Obama administration just faded to black.

Aaron Klein, WorldNetDaily's Jerusalem bureau chief, is known for his regular interviews with Mideast terror leaders and his popular segments on America's top radio programs. His newly released book is "Schmoozing with Terrorists: From Hollywood to the Holy Land, Jihadists Reveal their Global Plans – to a Jew!"

from the San Jose Mercury News, 2008-Nov-7, by Troy Wolverton:

Court blocks new Apple exec from going to work

Apple's move to shake up its iPod and iPhone management team has been put on hold.

A federal court judge Friday granted a preliminary injunction requested by IBM that ordered Mark Papermaster to cease working for Apple until further notice.

Apple hired Papermaster away from IBM last month to head hardware engineering for its handheld gadgets. IBM subsequently sued Papermaster, who had signed a non-competition agreement with Big Blue in 2006, charging him with violating that agreement.

Kenneth Karas, a U.S. District Court judge in the southern district court of New York, where the case was filed, didn't immediately explain his ruling, saying he would release a full opinion in the future. He scheduled a follow-up meeting later this month to map out a time line for the case.

IBM was pleased with the decision, company spokesman Doug Shelton said.

"Mr. Papermaster's employment by Apple is a violation of his agreement with IBM against working for a competitor should he leave IBM," Shelton said.

Apple and Papermaster will comply with the order, Apple spokesman Steve Dowling said.

But he added that Apple is "confident that Papermaster will be able to ultimately join Apple when this dust settles."

Papermaster and his attorneys did not respond to requests for comment.

On Tuesday Apple announced that it had hired Papermaster and that Tony Fadell, former senior vice president of its iPod division, was stepping down from that position and reducing his role with the company.

While Apple continues to dominate the market for MP3 players, its sales growth has slowed markedly over the last two years.

from The Australian, 2008-Jan-16, by Janet Albrechtsen:

Too many rights make a wrong

CANADA: It was one of those rare, particularly sunny days in Vancouver in September when, addressing an audience at the University of British Columbia, I suggested that multiculturalism and its partner in crime, moral relativism, were leading to the demise of Western values.

"But you must understand," implored a well-intentioned woman in the audience, "multiculturalism is Canada's gift to the world."

If Australia is set to follow Canada, then thanks, but no thanks. Call me ungrateful, but we should have returned the gift to Canada long ago. I say that as someone who has long adored Canada. Its politics may be as dripping wet as Vancouver, but the people are warm and funny, and there is something sweet about the US's insecure, slightly wimpy northern neighbour. Yet there comes a point when weakness morphs into a reckless death wish.

That point is about now. I'm back in Canada and the distinct chill is not just in the air. Last Friday, conservative commentator Ezra Levant was hauled before Alberta's Human Rights and Citizenship Commission for publishing the infamous Danish Mohammed cartoons two years ago in the Western Standard.

Syed Soharwardy, the head of Canada's Islamic Supreme Council, complained that Levant had incited hate against Muslims.

Levant's opening statement was a tour de force as far as punchy defences of free speech go. Apparently viewed almost 200,000 times, it is one of the most-watched clips on YouTube in recent times. It's also on his website, www.ezralevant.com, where he describes the chilling process: "No six-foot brownshirt, no police cell at midnight. Just Shirlene McGovern, an amiable enough bureaucrat, casually asking me about my political thoughts on behalf of the Government of Alberta. And she'll write up a report about it, and recommend that the Government do this or that to me. Just going through checklists, you see ... a limp clerk who was just punching the clock. She had done it dozens of times before and will do it dozens of times again. In a way, that's more terrifying."

It was, said Levant, the epitome of Hannah Arendt's warning against "the banality of evil".

Refreshingly, Alan Borovoy, general counsel to the Canadian Civil Liberties Association and the chap who helped found these commissions in the 1960s and '70s, was equally appalled. Writing in the Calgary Herald, he said "during the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech". Pointing to the empire-building frolic of the commissions, Borovoy advised that the legislation needed to be changed to make it clear that these commissions had no business investigating and making edicts about thought crimes.

Borovoy's warning about the alarming expansion of the jurisdiction of these rights bodies adds another and very timely warning for Australians about the implications of human rights law. Expressed in impossibly platitudinous and therefore vague language, these so-called human rights bodies effectively decide how far their reach extends.

Canada shows where we will end up in due time: with a system of governance where large swaths of social policy have been delegated by parliament to the unelected grey bureaucrats, who get to implement "progressive" policies that could never get through a body of elected politicians.

As the jurisdiction of these commissions expands into areas never originally intended, fundamental freedoms contract. When state bodies start enforcing the religious prohibitions of Muslims, which forbid the depiction of the prophet Mohammed, it destroys a few fundamental Western values, namely the separation of mosque and state and, more critically, the freedom of speech.

This is not simply a defence of Levant because he is a conservative columnist. Far from it. If a bleeding heart on the Left was dragged before a human rights commission for thinking and saying unpalatable things, even stupid things, the defence would remain the same. Defending the right to say the right things is easy. Defending the right to say the wrong things, even offensive things, is what counts if we are serious about free speech.

That's why, some years ago, I wrote in defence of my colleague Phillip Adams when he was accused of racial vilification by an American who was offended by Adams's assertion that the US was one of the most violent nations on earth and was largely to blame for the events of September 11. The comments were daft but Adams has a right to be wrong and so it was important to stand up for his right to say it.

Allowing a state body to investigate it as a speech crime sends a chill down the spine of Western progress. As Levant argued, "Freedom of expression is only meaningful when it trumps other values, such as political sensibilities, or religious dogma, or personal sensitivities. Indeed, Western civilisation's progress in all realms, ranging from science to art, to religion, to feminism, to civil rights for racial minorities and gays, has come about from the free expression of ideas that necessarily offended some earlier order." In short, self-criticism is at the core of the West's progress. The battle of ideas may be no place for the faint-hearted, but it produces exceptional results by thrusting forward the better ideas.

In the Canadian multicultural zeitgeist, where bland political correctness is preferred, those on the Right tend to get hit more often by ludicrous complaints to human rights commissions. A bunch of law students marched off to a Canadian human rights commission complaining about Maclean's for running an excerpt from Mark Steyn's book America Alone: The End of the World as We Know It.

Steyn, like Levant, can defend himself. As Steyn wrote on his blog: "I don't want to get off the hook. I want to take the hook and stick it up the collective butt of these thought police." But what about the little guys put through the human rights commission wringer? Failing to complain about the quotidian incidences of oppression by human rights bodies only encourages the egregious examples to occur.

Take the case of the Queensland Anti-Discrimination Tribunal drafting an inane apology last November to be run by the Mission Beach Advertiser for publishing an admittedly unpleasantly anti-gay letter that offended the catch-all Gay Lesbian Bisexual Transgender Intersex Anti-Violence Committee.

Or when the NSW Administrative Decisions Tribunal upheld a complaint against The Australian's opinion page editor, Tom Switzer, for saying perfectly accurately, if somewhat colourfully, in 1998 that the Palestinians were "vicious thugs" who were derailing the peace process.

So, we need to watch Canada. As it goes, so will we. And even if you can stomach the idea of handing over power over social policy to unelected bureaucrats and self-opinionated lawyers, you might like to hang on to free speech. Oh Canada, where are you taking us?

from Canadian Jewish News, 2008-Nov-26, by Paul Lungen:

Tories vote to annul section restricting free speech

The Conservative Party adopted a resolution at its policy convention in Winnipeg last week that would nullify application of the federal human rights provision that restricts free speech.

The one-paragraph resolution was adopted with broad support of delegates, including Justice Minister and Attorney General Rob Nicholson, left,

The resolution affirms the Conservative Party's support for “legislation to remove authority from the Canadian Human Rights Commission and Tribunal to regulate, receive, investigate or adjudicate complaints related to Section 13 of the Canadian Human Rights Act.”

The section has come under fire in recent months for permitting encroachments on the Charter right to free speech in the name of preventing the promotion of hatred or contempt. Cases involving commentator Mark Steyn writing in Maclean's magazine along with the Western Standard and its publisher, Ezra Levant, brought the provision under intense scrutiny.

Critics such as Levant said the section permitted bureaucratic censorship of free expression while proponents – including three mainstream Jewish advocacy organizations – argued the section was needed to prevent the vilification of minorities. While maintaining their support for the legislation, Canadian Jewish Congress, B'nai Brith Canada and the Friends of the Simon Wiesenthal Center (FSWC) have acknowledged the need for procedural reforms to prevent abuse of the section.

Last week, Levant and the Jewish groups again found themselves on opposite sides, this time on their evaluation of the significance of the Tories' resolution.

Levant called passage of the resolution “enormous. It was 90 per cent in favour of repealing section 13 in the workshop but over 99 per cent in the policy plenary, which means Canadians from across the spectrum… voted for this.

“When the justice minister publicly announces that he wants to repeal the law, that's incredible.”

Congress CEO Bernie Farber saw it differently. “The delegates at the convention do one thing; the caucus does another.”

Farber said there is also no evidence the Liberals, NDP or Bloc Québécois endorse changes to the Canadian Human Rights Act and in a minority parliament, “there's no stomach to take it on.”

Leo Adler, director of national affairs for FSWC, agreed passage of the resolution “does not necessarily mean it's going to end up Canadian government policy.”

Despite flaws in the legislation, “At a fundamental point, if you look at the cases where Section 13 [was applied], it's very clear they do constitute hate speech,” he said.

FSWC is “in the process of re-evaluating the issue, because there have been problems identified within these types of proceedings,” but he added FSWC along with B'nai Brith and Congress are intervenors in a recent human rights case against Marc Lemire, who is alleged to have posted hate messages online. The Jewish organizations have filed joint legal arguments in support of the constitutionality of the section, which Lemire is challenging.

The Lemire case has further discredited the Canadian Human Rights Commission, Levant asserted. Evidence at the hearing showed Commission staff went online to join neo-Nazi organizations where they posted hundreds of bigoted messages.

“The CHRC is a leading disseminator of anti-Semitic, anti-black and anti-gay bigotry in Canada. In fact, I believe they're the largest, and certainly the best-staffed and best-funded, hate group in Canada,” Levant said.

“It's hard to believe, I know. I only found out about it because the CHRC had admitted to it under oath.

“In various Section 13 cases, CHRC employees and ex-employees have testified that they joined neo-Nazi organizations, like the U.S.-based Stormfront and Vanguard.”

Levant said the Tories would find support in all political parties for a move to rescind Section 13. Canadians from all ends of the political spectrum – including most Jews – would back such a move, he said.

Late last week, the RCMP declined to lay charges in connection to allegations that the CHRC hacked into an Ottawa woman's wireless Internet account to surreptitiously post material on extremist websites. No reasons were given.

“This albatross hanging over the CHRC is no longer there, and now we can focus more on the issues around Section 13, rather than silly allegations that go nowhere,” Farber said.

from BBC News, 2008-Oct-25, by Nick Bryant:

Australia trials national net filters
Critics of the filtering plan fear it will slow net speeds

Sydney -- Is the Rudd government about to erect a Great Firewall of Australia - introducing a form of internet censorship that will infringe upon the freedom of computer users to browse the worldwide web?

That is the concern of online civil liberties groups, as the Rudd government prepares plans for a field trial of internet service provider (ISP) filtering products, with a view to introducing them nationally.

ISP filtering is the blocking of certain sites which the government deems illegal or inappropriate, and is the central plank of the Rudd government's "Plan for Cyber-Safety".

The official watchdog, the Australian Communications and Media Authority (ACMA) has been conducting laboratory tests of six filtering products, and the government plans a live trial soon.

"Although the internet has opened up a world of possibilities and benefits for Australian children," noted communications minister Stephen Conroy when he announced his intention to police the internet earlier in the year, "it has also exposed them to continually emerging and evolving dangers that did not previously exist."

The aim, he said, was to create a safer online environment for Australian children.

Web feed

But the government has been very tight-lipped about its plans. That information vacuum has been filled on the blogosphere by concerned internet users.

Much of the angry online chatter and speculation has centred on whether internet users will be able to opt-out of the filtered "clean feed". Net users in China, Getty China is known for operating tight control over net access

Senator Conroy has stated that Australians would be given the opportunity to opt-out, and that the scheme would therefore not be mandatory.

But a network engineer from one of Australia's leading net suppliers, Internode, has challenged that assertion, arguing that there would be two black-lists. One would contain unsuitable and harmful material for children; the other would include inappropriate material for adults.

Mark Newton of Internode wrote in an online forum: 'The much-touted 'opt-out' would merely involve switching from blacklist number 1 to blacklist number 2….Regardless of your personal preference, your traffic will pass through the censorship box.'

Senator Conroy has since indicated that there would be a two-tier system: a mandatory one that would block all "illegal material" and an optional tier that would block material deemed unsuitable for children, such as pornography.

Watch dogs

The opponents of ISP filtering have practical as well as philosophical concerns.

Firstly, there are worries about online censorship.

The website, "No Internet Censorship for Australia" asks: "Do we really want the Government of the day deciding what Australian adults can and can't see? Do we want Australia to join a censorship club in which Burma, China and North Korea are the founding members?"

Then there is the problem of what online free speech advocates call "censorship creep".

"Even if the filtering system only targets child pornography to begin with, we have no confidence it will stay that way," says Dale Clapperton of the online civil liberties organisation, Electronic Frontiers Australia (EFA). "It will be subject to creep. Everyone with any lobbying clout will be after the government to ban their pet peeve websites.'

These fears are exacerbated by the political balance of power in Canberra.

Though the governing Labor Party has a comfortable majority in the House of Representatives, it has to rely in the upper house, the Senate, on the Greens, an independent from South Australia and the socially conservative Family First Party.

Family First's sole parliamentarian, Senator Steve Fielding, recently single-handedly blocked the government's initial proposals for a luxury car tax. Freedom of online speech advocates fear he could use his influence to push for even greater controls on the internet.

There is also question of what is inappropriate, and who gets to decide. The Greens Senator Scott Ludlam contends: "The black list ... can become very grey depending on how expansive the list becomes - euthanasia material, politically related material, material about anorexia. There is a lot of distasteful stuff on the internet."

Slow start

There are technical issues, as well, such as the impact of filtering on the speed of the web, which in Australia is already slow.

The technical term is network degradation. After its recent trials, ACMA reported significant improvements on earlier studies. The network degradation on one product was less than 2%, although two products were in excess of 75%.

Filtering systems also have a tendency to "overblock", restricting access to legal material.

They look at words, the ratio of images to text and the preponderance of skin colour. They assess content but not necessarily the context in which it appears.

"It is easy to mix up a site criticising child sex tourism and one promoting child sex tourism," says Mr Clapperton of the EFA.

Finally, there is the question of whether the filters will be effective. In the ACMA trials, the filters ranged from an 88% to 97% hit rate.

Even the most successfully restrictive system was by no means water-tight.

Computer experts also say that the filters will not impact peer-to-peer (P2P) file sharing networks, which account for an estimated two-thirds of internet traffic.

"Any determined user - including children - could bypass the filter quickly using an anonymizer service," says the No Internet Censorship for Australia site.

Many in the online community fear that Australian government is about to degrade the internet with a filtering system that will not offer any effective protections - that if a way can be found to erect the Great Firewall of Australia, it will be easily and quickly breached.

from Wired Magazine, 2008-Oct-15, by Sarah Lai Stirland:

YouTube to McCain: You Made Your DMCA Bed, Lie in It

YouTube on Tuesday rebuffed a request from John McCain's presidential campaign to examine fair-use issues more carefully before yanking campaign videos in response to DMCA takedown notices.

"Lawyers and judges constantly disagree about what does and does not constitute fair-use," YouTube's general counsel Zahavah Levine wrote in a letter Tuesday. "No number of lawyers could possibly determine with a reasonable level of certainty whether all the videos for which we receive disputed takedown notices qualify as fair-use."

"We hope that as a content uploader, you have gained a sense of some of the challenges we face everyday in operating YouTube," he added. Mccainyoutubead

The McCain campaign on Monday fired off a letter to YouTube complaining that the company had acted too quickly to take down McCain's videos in response to copyright infringement notices. McCain campaign general counsel Trevor Potter argued that several of the removed ads, which had used excerpts of television footage, fall under the four-factor doctrine of fair-use, and shouldn't have been removed.

But citing the DMCA, a controversial copyright law that McCain voted to approve a decade ago, Levine pointed out that YouTube risks being sued itself if it doesn't respond promptly to takedown notices.

"If … service providers do not remove the content to such notice, they do so at their own risk because they lose their safe harbor,"he wrote.

Further, Levine argued, the fair-use analysis is complicated, and the creators of the videos are better equipped to perform it. The uploader can then issue a DMCA counter-notice if they believe they're on solid legal ground, and YouTube will restore the video.

"YouTube does not possess the requisite information about the content in user-uploaded videos to make a determination as to whether a particular takedown notice includes a valid claim of infringement," Levine wrote. "The claimant and the uploader, not YouTube, hold all of the relevant information in this regard, including the source of any content used, the ownership rights to the content, and any licensing arrangements in place between the parties."

"The real problem here is individuals and entities that abuse the DMCA takedown process," he added.

"We look forward to working with Senator (or President) McCain on ways to combat abuse of the DMCA takedown process on YouTube, including by way of example, strengthening the fair-use doctrine, so that intermediaries like us can rely on this important doctrine with a measure of business certainty."

from WorldNetDaily, 2008-Sep-27:

Backlash to Obama officials squelching political speech
Law enforcement threats, intimidation likened to 'police-state tactics,' by Missouri governor

Following legal threats by Missouri state law-enforcement officials supporting Barack Obama against presidential campaign ads that appeared to be false or misleading, Gov. Matt Blunt today likened the intimidation to "police state tactics."

"St. Louis County Circuit Attorney Bob McCulloch, St. Louis City Circuit Attorney Jennifer Joyce, Jefferson County Sheriff Glenn Boyer, and Obama and the leader of his Missouri campaign Senator Claire McCaskill have attached the stench of police state tactics to the Obama-Biden campaign," said Blunt in a statement released today. "What Senator Obama and his helpers are doing is scandalous beyond words, the party that claims to be the party of Thomas Jefferson is abusing the justice system and offices of public trust to silence political criticism with threats of prosecution and criminal punishment."

The statement came after the law enforcement officials pledged to form a "truth squad" to halt ads that, among other things, claimed Obama was not a Christian or that he was not planning to cut taxes on Americans other than the wealthy.

"If they're not going to tell the truth, somebody's got to step up and say, 'That's not the truth. This is the truth,'" McCullogh told KMOV-TV in St. Louis.

The effort appeared to be part of a move by the Obama campaign to block advertisements to which it objects. The campaign also sent "threatening" letters to several news agencies in Pennsylvania and Ohio demanding they stop airing ads exposing Obama's gun stance, according to the National Rifle Association.

"This abuse of the law for intimidation insults the most sacred principles and ideals of Jefferson," said Blunt. "I can think of nothing more offensive to Jefferson's thinking than using the power of the state to deprive Americans of their civil rights. The only conceivable purpose of Messrs. McCulloch, Obama and the others is to frighten people away from expressing themselves, to chill free and open debate, to suppress support and donations to conservative organizations targeted by this anti-civil rights, to strangle criticism of Mr. Obama, to suppress ads about his support of higher taxes, and to choke out criticism on television, radio, the Internet, blogs, e-mail and daily conversation about the election."

Blunt concluded: "Barack Obama needs to grow up. Leftist blogs and others in the press constantly say false things about me and my family. Usually, we ignore false and scurrilous accusations because the purveyors have no credibility. When necessary, we refute them. Enlisting Missouri law enforcement to intimidate people and kill free debate is reminiscent of the Sedition Acts – not a free society."

The NRA's Political Victory Fund also condemned the effort as censorship.

"Barack Obama and his campaign are terrified of the truth," said Chris W. Cox, chairman of organization. "Sen. Obama's statements and support for restricting access to firearms, raising taxes on guns and ammunition and voting against the use of firearms for self-defense in the home are a matter of public record. NRA-PVF will make sure that everyone knows of Obama's abysmal record on guns and hunting."

The Obama campaign declined to respond to a WND request for comment.

The NRA said Obama sent "cease and desist letters" to news outlets in the two states, "denouncing the ads and demanding their removal from the airwaves."

"Barack Obama would be the most anti-gun president in our nation's history. That's the truth," said Cox. "NRA-PVF has the facts on our side. No amount of running from or lying about his record and then intimidating news outlets in the hope of deceiving American gun owners and hunters is going to work. Those strong arm tactics may work in Chicago, but not in Pennsylvania and Ohio, and not as long as NRA-PVF has anything to say about it."

The warnings were from Obama lawyer Robert Bauer, who told station managers that in order to stay in the Federal Communication commission's good graces, they should not air the ads.

Josh Marquis, an Oregon prosecutor who serves as a spokesman for the NDAA, said the comments from Missouri don't sound like the McCulloch he knows.

"I'm really surprised. I know Bob," Marquis told WND.

The KMOV report said the Obama campaign asked members of Missouri's law enforcement to target anyone who "lies" or issues misleading television ads. Formation of the Obama "Truth Squad" was the result, the report said.

McCulloch declined to return a call from WND seeking comment.

The KMOV report said the campaign was being conducted by McCulloch and another prosecutor, Jennifer Joyce, along with a number of sheriffs throughout the state.

"They will be reminding voters that Barack Obama is a Christian who wants to cut taxes for anyone who makes less than $250,000 a year. They also say they plan to respond immediately to any ads and statements that violate Missouri's ethics laws," the report said.

"We want to keep this campaign focused on issues," Joyce told the station. "We don't want people to get distracted. Missourians don't want to be distracted by the divisive character attacks."

The campaign was assembled to "set the record straight," they said.

Officials with the Missouri Sheriff's Association declined to talk about any sheriffs who might be involved in the campaign.

At the blog Gateway Pundit, the reaction was immediate.

"St. Louis and Missouri Democrat sheriffs and top prosecutors are planning to go after anyone who makes false statements against Obama during his campaign. This is so one-sided I can't even being to describe how wrong this agenda is," writes blogger Jim Hoft.

Hoft said Joyce and McCulloch "are threatening to bring libel charges against those who speak out falsely against Barack Obama."

Missouri blogger Doctor Bulldog commented: "Don't think they will stop with just the local radio and television stations. Oh, no. We bloggers are NEXT on the chopping block! It doesn't matter if it is the truth. It only matters if Obama deems it a lie (i.e. – something that can cause damage to his bid to be president). Basically, NO ONE is free to criticize Obama here in Missouri!!!"

In the St. Louis Examiner, a commentary said, "Look, politicians are all about lies. It may be annoying (I find it entertaining), but that's for their opponents and good-government groups to counter – not law enforcement. ... Even if the officeholders joining the 'truth squad' are nominally stepping out of their official roles in order to put on their (political) party hats and play politics, it's inappropriate. They wield too much power to use it to wag their fingers at people who say un-nice things about political hopefuls. Prosecutors and sheriffs are, after all, normally thought of as people with the clout to put their targets behind bars."

Marquis told WND politicians keep their right to have a political opinion and express it, but the DA's organization strives hard not to be partisan.

from the Wall Street Journal Europe, 2008-Sep-10, by Elizabeth Samson:

Criminalizing Criticism of Islam

There are strange happenings in the world of international jurisprudence that do not bode well for the future of free speech. In an unprecedented case, a Jordanian court is prosecuting 12 Europeans in an extraterritorial attempt to silence the debate on radical Islam.

The prosecutor general in Amman charged the 12 with blasphemy, demeaning Islam and Muslim feelings, and slandering and insulting the prophet Muhammad in violation of the Jordanian Penal Code. The charges are especially unusual because the alleged violations were not committed on Jordanian soil.

Among the defendants is the Danish cartoonist whose alleged crime was to draw in 2005 one of the Muhammad illustrations that instigators then used to spark Muslim riots around the world. His co-defendants include 10 editors of Danish newspapers that published the images. The 12th accused man is Dutch parliamentarian Geert Wilders, who supposedly broke Jordanian law by releasing on the Web his recent film, "Fitna," which tries to examine how the Quran inspires Islamic terrorism.

Jordan's attempt at criminalizing free speech beyond its own borders wouldn't be so serious if it were an isolated case. Unfortunately, it is part of a larger campaign to use the law and international forums to intimidate critics of militant Islam. For instance, in December the United Nations General Assembly passed the Resolution on Combating Defamation of Religions; the only religion mentioned by name was Islam. While such resolutions aren't legally binding, national governments sometimes cite them as justification for legislation or other actions.

More worrying, the U.N. Human Rights Council in June said it would refrain from condemning human-rights abuses related to "a particular religion." The ban applies to all religions, but it was prompted by Muslim countries that complained about linking Islamic law, Shariah, to such outrages as female genital mutilation and death by stoning for adulterers. This kind of self-censorship could prove dangerous for people suffering abuse, and it follows the council's March decision to have its expert on free speech investigate individuals and the media for negative comments about Islam.

Given this trend, it's worth taking a closer look at the Jordanian case.

The prosecutor is relying on a 2006 amendment to the Jordanian Justice Act that casts a worryingly wide net for such prosecution. Passed in response to the Danish cartoons incident, the law allows the prosecution of individuals whose actions affect the Jordanian people by "electronic means," such as the Internet. The 2006 amendment, in theory, means anyone who publishes on the Internet could be subject to prosecution in Jordan. If the case against the 12 defendants is allowed to go forward, they will be the first but probably not the last Westerners to be hit by Jordan's law.

Amman has already requested that Interpol apprehend Mr. Wilders and the Danes and bring them to stand before its court for an act that is not a crime in their home countries. To the contrary. Dutch prosecutors said in July that although some of Mr. Wilders's statements may be offensive, they are protected under Dutch free-speech legislation. Likewise, Danish law protects the rights of the Danish cartoonists and newspapers to express their views.

Neither Denmark nor the Netherlands will turn over its citizens to Interpol, as the premise of Jordan's extradition request is an affront to the very principles that define democracies. It is thus unlikely that any Western country would do so, either. But there is no guarantee for the defendants' protection if they travel to countries that are more sympathetic to the Jordanian court.

Unless democratic countries stand up to this challenge to free speech, other nations may be emboldened to follow the Jordanian example. Kangaroo courts across the globe will be ready to charge free people with obscure violations of other societies' norms and customs, and send Interpol to bring them to stand trial in frivolous litigation.

A new form of forum shopping would soon take root. Activists would be able to choose countries whose laws and policies are informed by their religious values to prosecute critical voices in other countries. The case before the Jordanian court is not just about Mr. Wilders and the Danes. It is about the subjugation of Western standards of free speech to fear and coercion by foreign courts.

Ms. Samson, an attorney specializing in international and constitutional law, will join the Hudson Institute this fall.

from the Associated Press, 2008-Sep-12:

Saudi: OK to kill owners of 'immoral' TV networks

RIYADH, Saudi Arabia — Saudi Arabia's top judiciary official has issued a religious decree saying it is permissible to kill the owners of satellite TV networks that broadcast immoral content.

The 79-year-old Sheik Saleh al-Lihedan said Thursday that satellite channels cause the "deviance of thousands of people."

Many of the most popular Arab satellite networks — which include channels showing music videos often denounced as obscene by Muslim conservatives — are owned by Saudi princes and well-connected Saudi businessmen. Al-Lihedan did not specify any particular channels.

Al-Lihedan is chief of the kingdom's highest tribunal, the Supreme Judiciary Council. Saudi Arabia's judiciary is made up of Islamic clerics whose decrees, or fatwas, on everyday issues are widely respected. Their fatwas do not have the weight of law. In the courts, cleric-judges rule according to Islamic law, but interpretations can vary.

Al-Lihedan was answering listeners' questions during the daily "Light in the Path" radio program in which he and others make rulings on what is permissible under Islamic law.

One caller asked about Islam's view of the owners of satellite TV channels that show "bad programs" during Ramadan.

"I want to advise the owners of these channels, who broadcast calls for such indecency and impudence ... and I warn them of the consequences," he said.

"What does the owner of these networks think, when he provides seduction, obscenity and vulgarity?" he said.

"Those calling for corrupt beliefs, certainly it's permissible to kill them," he said. "Those calling for sedition, those who are able to prevent it but don't, it is permissible to kill them."

Among the most viewed Arabic satellite networks is Rotana, which airs movies and music videos. It is owned by Prince Al-Waleed bin Talal, a billionaire businessman and member of the royal family whom Forbes ranks as the world's 13th richest person.

Al-Lihedan sparked controversy in the past by issuing a decree that Saudis can join jihadists to fight U.S. troops in Iraq.

from Reuters, 2008-Sep-15:

Cleric wants death for TV 'sorcerers'

A senior Saudi cleric has said purveyors of horoscopes on Arab television should face the death penalty, a newspaper has reported, days after another cleric urged the same fate for channel owners who broadcast "indecent" shows.

"Sorcerers who appear on satellite channels who are proven to be sorcerers have committed a great crime ... and the Muslim consensus is that the apostate's punishment is death by the sword," Sheikh Saleh al-Fozan told al-Madina daily.

"Those who call in to these shows should not be accorded Muslim rites when they die," the prominent cleric added.

Many of the hundreds of Arab satellite channels that have sprung up in recent years specialise in horoscopes and other advice to callers on solving problems that is seen by some religious authorities as "sorcery".

In their capacity as judges, clerics of Saudi Arabia's austere form of Islam often sentence "sorcerers" to death.

Fozan, a member of the Higher Council of Clerics, was responding to a controversy ignited by a Council colleague, Sheikh Saleh al-Lohaidan, who said last week that owners of Arab TV shows should be tried and face death over some shows.

Lohaidan, who is the head of Saudi Arabia's Islamic sharia courts, told Saudi radio: "I want to advise the owners of these channels that broadcast programmes with indecency and vulgarity and warn them of the consequences ... They can be put to death through the judicial process."

He was referring to comedy shows and soap operas airing in Ramadan, a month of fasting when Muslims are supposed to focus on God. Critics say Ramadan has become an orgy of food and television consumption once the fast ends at sunset.

Lohaidan appeared on Saudi state television on Saturday night to clarify his statement, saying he did not suggest satellite owners should be killed without a trial.

"No one should expect that I would rush to judgement, as has been falsely suggested, and say I had ruled that satellite owners be killed," he said in the remarks, which were published on an Islamist website on Sunday. He added that courts could impose a death penalty.

Fozan said entertainment channel owners should be "banished" but stopped short of advocating the death penalty for them.

Turkish soap operas that became hugely popular in Saudi Arabia and other Arab countries this year provoked a storm of anger among Saudi conservatives who fear the spread of secular culture in the key U.S. ally.

The government's official adviser on religious affairs, Grand Mufti Sheikh Abdelaziz Al al-Sheikh, said in July it was not Islamically permissible to watch the Turkish serials.

The owners of Arab entertainment channels, including MBC, ART, Orbit, Rotana and LBC, are mostly Saudi royals and businessmen closely allied to them.

Concerned about the country's international image, some key members of the Saudi royal family have promoted liberal reforms. The clerics fear plans to limit their extensive influence in what is the world's largest oil exporter.

from the Telegraph of London, 2008-Sep-25, by Adrian Blomfield:

Russia to ban Simpsons and South Park

The Kremlin was accused of a return to Soviet-style indoctrination after Russia moved to ban American cartoons like The Simpsons and replace them with programmes teaching children to be patriotic.

The move came as Russia's broadcast watchdog began hearings on whether or not to revoke the license of a cartoon network as punishment for transmitting episodes of South Park, The Simpsons and Family Guy.

The American cartoons, all of which have adult themes, have been fallen foul of recently tightened extremism laws that critics say have been used to muzzle opponents of the Kremlin.

The State Duma, Russia's parliament, said that the frequency given to the 2x2 cartoon channel would instead be given to new government network that "reflects the state position in the area of youth policy".

In place of foreign cartoons, Russia's children would instead watch programmes teaching them patriotism, respect for family values and the importance of sport, the Duma's youth committee said.

The move comes as MPs are also considering the compulsory introduction of patriotism classes in all Russian schools. Under one proposal lessons in Russian literature could be scaled back to find room on the curriculum.

The proposal to create a new state channel, criticised in some quarters as an attempt to seize lucrative frequency rights from a private broadcaster, was likened by some activists to Soviet era moralizing that fettered the minds of the young.

"The wish to create a youth patriotic channel is one of many attempts by the authorities at indoctrinating and brainwashing the young," said Lev Ponomarev, a veteran human rights activist and member of Garry Kasparov's outlawed opposition party.

"The authorities are accelerating their own death by all this."

The Kremlin has also come under criticism for creating nationalist youth movements like Nashi, whose members have sworn allegiance to Vladimir Putin, the prime minister, and have been used to disrupt opposition protests.

The anticipated closure of 2x2, which will learn its fate within days, has also raised questions over the manner in which Russia's authorities are interpreting legislation ostensibly introduced to fight xenophobia.

The channel is facing a criminal investigation for broadcasting an episode of South Park that allegedly promoted religious hatred.

The episode, titled "Mr Hankey's Christmas Classics" featured a taking faeces that emerges from a lavatory every Christmas Eve to give presents to children whose diet is suitably fibre-rich. Mr Hankey led a variety show of Christmas songs whose lyrics had been twisted to include profanities and digs at organised religion.

Prosecutors also alleged, without elaborating, that The Simpsons and Family Guy violate the rights of children.

Implementation of the extremism law has courted controversy on several occasions in the past year. In August, a blogger who criticized the FSB, the intelligence agency that replaced the KGB, was charged with extremism.

An online newspaper was closed in April after an anonymous reader posted a comment at the bottom of a story calling for violence against government officials.

Others have faced investigation simply for criticising Mr Putin, among them Andrei Piontkovsky, a prominent political analyst, and a group of mothers whose children were killed during the Beslan school siege of 2004.

The late British historian High Trevor-Roper also fell foul of the law after one of his books was banned for carrying quotes from Hitler that disparaged Jews and Russians. A hobbyist who built replica Second World War tanks was also investigated earlier this year.

from Reuters, 2008-Sep-5, by Edith Honan with editing by Daniel Trotta and Eric Walsh:

U.S. publisher buys novel about wife of Mohammad

NEW YORK - U.S. publisher Beaufort Books has bought a novel about the Prophet Mohammad's child bride a month after Random House canceled its release, citing fears it could "incite acts of violence."

The publishing house will release "The Jewel of Medina" in October and a sequel in 2009, Beaufort president Eric Kampmann said in a statement released on Friday.

Beaufort is the same publisher that took on "If I Did It," O.J. Simpson's book about the murder of his wife, after it had been dropped amid public outrage by its original publisher, Regan books, a unit of NewsCorp's HarperCollins.

"We are building a great team to bring 'The Jewel of Medina' to the audience it deserves to have," Kampmann said, calling it a "ground-breaking novel."

Random House, a unit of Bertelsmann AG, had been due to publish "The Jewel of Medina," a first novel by journalist Sherry Jones, 46, on August 12.

Random House pulled out, saying it had received "cautionary advice not only that the publication of this book might be offensive to some in the Muslim community, but also that it could incite acts of violence by a small, radical segment."

In a statement, Jones said that she was pleased to have found a publisher "that wouldn't be spooked by controversy."

Deals have now been reached with publishers in Britain, Brazil, Italy, Germany, Russia, Spain and other countries, Jones's literary agent Natasha Kern said.

The novel traces the life of Aisha from her engagement to Mohammad, when she was six, until the prophet's death.

from CNET News.com, 2008-Sep-11, by Declan McCullagh:

RIAA, MPAA resume lobbying push to expand copyright law

It only took a few days after politicians returned from their summer holidays for Hollywood and the major record labels to resume their legislative push to rewrite and expand digital copyright law.

The Recording Industry Association of America and the Motion Picture Association of America are lobbying for a pair of bills that enjoy bipartisan support. Both are designed to give the federal government more power to police copyright violations, and both are likely to run into opposition from political foes of the RIAA and MPAA.

On Thursday, the Senate Judiciary Committee is scheduled to vote on the so-called Enforcement of Intellectual Property Rights Act, a 46-page bill that was introduced in July by Vermont's Patrick Leahy and Pennsylvania's Arlen Specter, the committee's top Democrat and Republican.

The measure represents a fusion of previous bills, including ones that have enjoyed support in both the Senate and House of Representatives, and one that Leahy introduced in November 2007. One of the more controversial sections of the latest version would permit the Justice Department to file a civil lawsuit against "any person" committing a copyright violation--which would include thousands, or perhaps millions, of piratical peer-to-peer users.

A group of librarians and nonprofit groups, including the American Library Association, Public Knowledge, and the Electronic Frontier Foundation, sent a letter to senators on Wednesday that says copyright holders--and not government lawyers funded by tax dollars--should be the ones filing the lawsuits.

"Movie and television producers, software publishers, music publishers, and print publishers all have their own enforcement programs," the letter says. "There is absolutely no reason for the federal government to assume this private enforcement role." (The letter also criticizes the bill's criminal and civil forfeiture sections, and impounding of business records pre-trial if someone is accused of copyright infringement.)

The second RIAA- and MPAA-backed bill was introduced by senators Max Baucus, a Montana Democrat, and Orrin Hatch, a Utah Republican, on Wednesday. It's called the International Intellectual Property Protection and Enforcement Act, and it aims to ratchet up copyright pressure against countries that the U.S. Trade Representative deems to be taking too few steps against piracy.

"We can't let other countries repeatedly rip off the movies Americans make, the products Americans design and the other fruits of American ingenuity without taking some action," Baucus said in a statement.

The Baucus-Hatch bill says that the executive branch "shall develop an action plan" against such nations, with benchmarks including "adequate and effective protection of intellectual property rights." Failure to meet those benchmarks may result in the Feds suspending government procurement contracts involving that nation, and halting loans and development aid, including credit from the Overseas Private Investment Corporation and the Export-Import Bank of the United States.

Another section says the president "shall ensure that an intellectual property attache with the title of Minister-Counselor is placed in the United States embassy of each foreign country with which the President determines the United States has a commercially significant relationship."

The RIAA applauded the bill in a statement, saying it will "protect this national resource with new, meaningful tools." The MPAA's Dan Glickman said: "We appreciate the leadership of Chairman Baucus and Senator Hatch. Their efforts to strengthen the enforcement of U.S. intellectual property rights around the world are critical to protecting the many American business sectors and American workers that depend on intellectual property."

from the Wall Street Journal, 2008-Jul-14, p.A15, by L. Gordon Crovitz:

Patent Gridlock Suppresses Innovation

The Founders might have used quill pens, but they would roll their eyes at how, in this supposedly technology-minded era, we're undermining their intention to encourage innovation. The U.S. is stumbling in the transition from their Industrial Age to our Information Age, despite the charge in the Constitution that Congress "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

For the third year in a row, Congress has just given up on passing a law reforming how patents are awarded and litigated. This despite growing evidence that for most industries, today's patent system causes more harm than good. Litigation costs, driven by uncertainty about who owns what rights, are now so huge that they outweigh the profits earned from patents.

It's true that defining intellectual property is hard at a time when new technologies upset the traditional ways of protecting rights, as debates over digital piracy make clear. But in the case of patents, poorly defined property rights for inventions are leading even the biggest companies to take desperate measures, including banding together to protect themselves against claims of increasingly broad and vague patents.

Companies as diverse as Verizon, Google, Cisco and Hewlett-Packard recently formed the Allied Security Trust to buy patents they may want to use some day and that otherwise could end up in the hands of "patent trolls." These firms buy up old patents not to produce anything, but instead to work the system to extract settlements. A similar group formed against trolls to protect the Linux open-source operating system. A Google executive explained that helping to buy up and license patents is the "legal equivalent of taking a long, deep, relaxing breath." Companies can rest easier, and legitimate inventors get paid for their work.

These corporate trusts seem like odd ways to protect products, but the memory is still fresh of the BlackBerry device almost being forced to shut down. Parent company Research in Motion paid more than $600 million in 2006 to settle a case. But in this and many other cases, companies can't be sure whether or not they are complying with patent law. For example, by one estimate there are more than 4,000 patents that must be reviewed and potentially licensed by firms selling products or services online. The legal abuses arising from uncertainty are legion. More than 100 companies are being sued for alleged patent infringement by using text messaging internationally.

The proposed law in Congress would have reduced potential damages to the value of the technology, not the full value of the completed product. Another uncertainty would have been reduced by moving to the first-inventor-to-file system, instead of our more ambiguous first-to-invent standard. The larger problems would have remained, including the trend of awarding vague patents, coupled with a still-primitive system for notifying others of the existence of patents.

Yet the fault line over patent reform signals the deeper problems. Many pharmaceutical companies lobbied against the proposals, fearful of reduced value in their key intellectual property. In contrast, most technology firms supported the reforms, worried more about uncertainty in the law than about the value of their patents.

Both sides may be right. New empirical research by Boston University law professors James Bessen and Michael Meurer, reported in their book, "Patent Failure," found that the value of pharmaceutical patents outweighed the costs of pharmaceutical-patent litigation. But for all other industries combined, they estimate that since the mid-1990s, the cost of U.S. patent litigation to alleged infringers ($12 billion in legal and business costs in 1999) is greater than the global profits that companies earn from patents (less than $4 billion in 1999). Since the 1980s, patent litigation has tripled and the probability that a particular patent is litigated within four years has more than doubled. Small inventors feel the brunt of the uncertainty costs, since bigger companies only pay for rights they think the system will protect.

These are shocking findings, but they point to the solution. New drugs require great specificity to earn a patent, whereas patents are often granted to broad, thus vague, innovations in software, communications and other technologies. Ironically, the aggregate value of these technology patents is then wiped out through litigation costs.

Our patent system for most innovations has become patently absurd. It's a disincentive at a time when we expect software and other technology companies to be the growth engine of the economy. Imagine how much more productive our information-driven economy would be if the patent system lived up to the intention of the Founders, by encouraging progress instead of suppressing it.

from the Wall Street Journal, 2008-Nov-11, by Bret Stephens:

'Tolerance' Is Not the Lesson of Kristallnacht

Sunday was the 70th anniversary of Kristallnacht, the night of broken glass. With some notable exceptions, Europe has opted to mark the occasion by missing its point.

"We must not be silent," said German Chancellor Angela Merkel at a memorial ceremony in Berlin's renovated Rykestrasse synagogue, one of the few that was not burned down that night by the Nazis -- though 2,200 others were, as crowds of German or Austrian citizens looked on. "There can be no tolerance, for example, if the safety of the state of Israel is threatened by Hamas, Hezbollah and Iran." Well said. Maybe the chancellor will turn next to the issue of the 2,000 German companies that still do business with Tehran, whose exports are up more than 14% this year.

Less well said is a "white paper on tolerance," which, along with a draft of a "European Framework Convention on Promoting Tolerance and Combating Intolerance," was presented yesterday at a conference at the European Parliament in Brussels. The meeting is generating interest in part because of the participation of representatives from Saudi Arabia, Egypt and other Muslim states -- none of which are especially known for their solicitude toward Jews.

Maybe they've had a change of heart. Alternatively, they might have figured out that the banner of "tolerance" -- a word that means nothing -- can serve their purposes as well as the "peace" movement once served the Soviet Union.

To be sure, neither the white paper nor the framework convention is short on references to anti-Semitism and its "current increase . . . in many European countries." But the drafters of the convention also claim to be "profoundly convinced that combating anti-Semitism, while requiring a specific type of action, is an integral and intrinsic component of the fight against racism."

With this premise, the convention proposes various legal penalties for the "dissemination of any ideas based upon racial superiority or hatred," as well as policies to promote "special positive measures to further equal social development and ensure the civil, political, economic, social and cultural rights of all victims" of discrimination.

But if that sounds relatively anodyne, consider the ways in which radical Islamists in Europe have been using hate-speech codes to their advantage. In 2005, the Times of London reported that the radical Islamist group Hizb ut-Tahrir -- proscribed in Germany for distributing anti-Semitic literature -- had launched a recruiting drive on college campuses under the aegis of a "Stop Islamophobia" campaign. In Belgium, the leader for several years of the Arab European League, which claimed to defend Antwerp's Muslim immigrant Moroccan community against police harassment, was Dyab Abou Jahjah, himself a Lebanese member of Hezbollah.

Then there is the instructive, albeit complex, case of the Cologne mosque project. An enormous structure designed to accommodate 4,000 worshippers, it was approved by city hall and sponsored by the Turkish-Islamic Union (or DITIB), an umbrella group considered to be relatively moderate. Given that 12% of Cologne's population is Muslim, it seems a reasonable accommodation.

Yet the sheer scale of the project aroused widespread unease. In September, a group called "pro-Cologne" -- some, though by no means all, of whose members had ties to anti-immigrant parties such as the Flemish Vlaams Belang -- attempted to hold an anti-Islamification Congress. They were thwarted by an estimated 40,000 protestors throwing paint bombs and chanting "No Kölsch [beer] for Nazis."

Superficially, at least, the protestors seemed to have achieved a worthy objective against some unsavory characters. Yet as John Rosenthal of the invaluable WorldPoliticsReview Web site points out, Germany's actual Nazis took a different view.

"Inasmuch as it is a determined opponent of the western-plutocratic one-world policy, we regard Islam, globally considered, as an ally against the mammonistic dominance of the American east coast" went a statement published by the neo-Nazi North German Action Office, using the words "American east coast" as a euphemism for Jews. "'Pro-Cologne's' superficial populism against Islam sends a completely wrong signal, about which only pro-Israel circles could be happy."

This isn't to say that the Cologne protestors are closet neo-Nazis. Nor is DITIB a radical group, at least compared to Hizb ut-Tahrir. Yet DITIB refuses to distinguish between Islam (a religion) and Islamism (a political idea) and accuses anyone who has an unkind word to say about the latter of being a "racist."

Much the same goes for other "mainstream" Islamic groups in Europe, who would find in the proposed "framework convention" a useful tool through which to shut down serious and legitimate concerns about the rise of Islamism -- along with its usual cargo of Israel- and Jew-hatred -- in Europe. One perverse result is that these groups will now be in a position to dictate the terms of what constitutes acceptable speech. Also perverse, and a process that's already in train, is that European moderates will increasingly find themselves marching into the arms of parties like the Vlaams Belang.

So here we are, 70 years after Kristallnacht, as good an example as any of what happens when the evil of the few (or, perhaps, not-so-few) takes advantage of the cowardice of the many. If there's a lesson here, it's in the need not for "tolerance," but for moral courage. Now as before, Europe finds it in short supply.

from Investor's Business Daily, 2008-Apr-14:

Free Speech Vs. Lawsuit Terrorism

Islamofascism: Suicide bombs aren't the only chilling weapon Islamists are using in their war to the death with Western civilization. Exploiting the free world's laws on libel and so-called hate speech, they intimidate truth-telling writers.

When American Center for Democracy director Rachel Ehrenfeld in 2003 authored "Funding Evil: How Terrorism Is Financed — and How to Stop It," she was intellectually taking part in the global war on terror. But she also ended up becoming enmeshed in an international legal war.

Saudi banker and suspected al-Qaida financial supporter Sheikh Khalid bin Mahfouz and his sons were named in the book and Mahfouz sued Ehrenfeld for libel in Britain — although only 23 copies of the American-published "Funding Evil" were purchased there, online.

British libel law is notoriously geared to the advantage of the plaintiff. So Ehrenfeld chose not to defend her case, and in 2005 High Court Justice Sir David Eady pronounced a default judgment ordering Ehrenfeld to apologize and pay $225,000.

Ehrenfeld countersued in the U.S., but the courts ruled they had no personal jurisdiction over Mahfouz under New York state law. As a result, Ehrenfeld is now discouraged from traveling abroad to promote her important, potentially life-saving work. And publishers, too, will be discouraged from printing her future books by the fear of being sued for large sums of money.

This is but one case in an intensifying global jihad against those who dare to exercise free speech to expose the tactics of terrorists, or criticize Islamic extremism.

Even the oldest publishing house in the world, Cambridge University Press, which printed its first book over 420 years ago, last year sullied its prestigious reputation by melting before a separate Mahfouz libel suit.

It ordered the destruction of all copies of "Alms For Jihad" by retired U.S. diplomat J. Millard Burr and University of California historian Robert O. Collins, asked libraries worldwide to take it off their shelves and reportedly paid off Mahfouz in a settlement.

Mahfouz's big-money legal bullying has led to successful actions against several other similar scholarly books (which tend not to become money-generating blockbuster best-sellers). Equally disturbing is the assistance the jihadists have been getting from politically-correct governmental institutions.

In December, for instance, the popular Canadian-born columnist and author Mark Steyn was subjected to complaints by the Canadian Islamic Congress before Canada's federal human rights commission, as well as the Ontario and British Columbia human rights commissions because his cover story in popular Canadian magazine Maclean's was considered "anti-Islam and anti-Muslim."

While the Ontario panel recused itself on jurisdictional grounds, it blasted Steyn's writing as "xenophobic" and "Islamophobic." The two other commissions have yet to decide on their course of action.

Such state agencies can fine or imprison their targets. But speaking before the Foundation for Defense of Democracies and the New Criterion magazine's "Free Speech in an Age of Jihad" conference in New York last week, Steyn elicited a standing ovation when he vowed to confront such tribunals anywhere and everywhere in the world.

He warned his audience that while Muslim immigrants may not have assimilated to Western culture, when it comes to exploiting the culture of victimology now embraced within the legal systems of the U.S. and other free nations, "they are superbly assimilated."

Britain, France, Germany and many other Western countries also have hate speech laws, and Steyn considers it absurd to think America can sustain itself as a beacon of hope as other nations regulate the criticism of Islam.

Allowing our own ill-conceived laws to prevent exposing how terrorists can destroy innocent lives is self-destructive. As Steyn reminded his listeners, recalling historian Arnold Toynbee, civilizations have always died by suicide, not murder.

from ABC News, 2008-Aug-14, by Ki Mae Heussner:

Leading Computer Scientists Defend Student Hackers
11 of the Country's Top Researchers Call Judge's Order 'Dangerous'

Eleven of the country's top computer scientists have come out in support of the three MIT students who were silenced by a gag order before they were able to tell a hackers conference in Las Vegas how they were able to break into Boston's subway fare collection system.

In an eight-page letter, the researchers argued that the injunction and others like it could have a "dangerous impact" on computer security research.

The temporary restraining order was meant to block discussion of how the students at the Massachusetts Institute of Technology figured out how to evade the computer system's security to change a $1.25 fare card to a $100 fare card.

In the letter filed Tuesday, the researchers, from leading institutions such as the University of California at Berkeley and Columbia University, urged the court to remove the restraining order issued against the students Sunday.

"We are concerned that the pall cast by the temporary restraining order will stifle research efforts and weaken academic computing research programs," the letter said. The students received an A on the project from their MIT professor.

"In this case, the law gives the public a false sense of security, achieved through law, not technical effectiveness," the letter also noted.

Despite the researchers' support, U.S. District Judge George O'Toole Jr. today left the injunction intact.

According to a spokeswoman for the Electronic Frontier Foundation, the civil liberties group defending the students, the judge did not uphold or remove the temporary restraining order. Instead, he postponed the decision to another hearing that will take place Tuesday.

The judge also asked the students to turn over more documentation on their research. By Friday afternoon, the students must hand over the class report that they submitted to their professor, part of the code that was intended to be part of their presentation and e-mail correspondence with organizers of the hacking conference.

The students and their lawyers said they are moving toward the judge's deadline but also plan to appeal the ruling to the U.S. 1st Circuit Court of Appeals.

"These restraints on the students' speech is flatly unconstitutional," said Rebecca Jeschke, a foundation spokeswoman.

Computer security experts say the attempt to gag the alleged hackers has boomeranged -- again.

"Every single time, harassing the researcher ends up spreading the research," said Dan Kaminsky, a computer security consultant for Seattle-based IOActive, Inc.

MIT students Zack Anderson, R.J. Ryan and Alessandro Chiesa were scheduled to present their "Anatomy of a Subway Hack" Sunday at Defcon, the popular Las Vegas hackers convention. Their trip to the podium, however, was blocked when they were served with an injunction obtained by the Massachusetts Bay Transportation Authority ordering them not to talk about the flaws in the MBTA security system.

But not only had the presentation already been distributed at the Defcon convention, it had been entered into public record when the MBTA filed its complaint. In the blink of a mouse click, the slides were posted on the Internet and hackers were shaking their heads at the MBTA's attempt to block discussion of the information.

"The bottom line is independent security research is how we get more secure networks," Kaminsky said. "But because anyone can just say anything, the way we differentiate what's true from what's not is to actually show the details that can be independently verified."

The students emphasize that their objectives were not to defraud the transit authority.

"Our intention ... was to find out what vulnerabilities might be present and then determine how those might be fixed," Anderson told ABCNews.com.

Most importantly, he said, the students never planned to reveal the information that would actually permit others to hack the system. The slideshow and presentation did not include the key enabling information.

Anderson said they contacted transit authority officials in late July. The purpose of the meeting was to educate them about the system's flaws and present them with possible solutions.

Early last week, Anderson said, the students met with the transportation officials. After walking representatives through their presentation, the students thought they had allayed the transit authority's fears.

But Aug. 8, they were notified that a federal lawsuit had been filed against them.

"It was a huge shocker," said Anderson.

In a complaint filed Aug. 8 with a U.S. district court in Massachusetts, the transportation authority said the students did not provide it with ample time to address the system's weaknesses. As a result, public disclosure of the flaws could cause significant damage to the transit system.

In an e-mail, a spokesman for the MBTA told ABCNews.com that, at the meeting, the students agreed to provide the transit authority with a copy of the presentation. After several days passed without receiving the information, the MBTA said it had "no choice but to seek assistance from a federal court judge."

The MBTA said it is now "reviewing the information to determine if there is any degree of substance to the claims being made by the students."

Corynne McSherry, a staff attorney with the Electronic Frontier Foundation, said injunctions such as the one requested by the MBTA chill the conversations that protect consumers from computer security threats.

The Electronic Frontier Foundation, a nonprofit group that advocates for civil liberties in the digital world, is defending the three students. The group's lawyers contend that the court violated the students' First Amendment rights to discuss their research.

"The court stopped researchers from speaking about their research traditional academic research," she said. "[It] essentially decided that talking about security vulnerabilities was somehow forbidden."

Some legal experts have a different view.

"It's one thing, for academic purposes, to do research. It's something entirely different to actually carry it out," said Peter S. Vogel, an attorney with the Dallas office of Gardere Wynne Sewell who specializes in Internet security and e-commerce. He is also an adjunct professor at the Southern Methodist University Dedman Law School.

If transit authority lawyers presented compelling evidence that the students violated state or federal laws while conducting their research, the judge would have been obligated to grant the injunction, Vogel added.

"The First Amendment doesn't protect people from breaking the law. It's a fine line to draw between violating a law and freedom of speech," Vogel said.

from the Wall Street Journal, 2008-Aug-2, p.A11, By L. GORDON CROVITZ:

Free the Web -- From the FCC!

There are a few holy articles among the Web faithful: The Internet is the most liberating force in generations, freeing people to use and share information however they like; the digital world has grown through innovation and risk-taking by entrepreneurs and companies; and government's role is to get out of the way and stay out.

We have happily sung from this hymnal for years, but the gospel is breaking down on the issue of government involvement. Many Internet activists now want the federal government to regulate the Web. They do so in the hope of maintaining the open Web. But they should be careful what they wish for, lest they instead get micromanagement, tariffs and a Web clogged by politics.

They applaud the U.S. Federal Communications Commission's announcement on Friday that it will replace market solutions with regulatory review. The case involved Comcast's effort to deal with the problem of resource allocation on the Web -- which is that at peak times, 5% of Internet users use 90% of the available bandwidth.

Last year, Comcast tweaked its network-management system to delay slightly the uploading of data through BitTorrent, one of the peer-to-peer services people use to swap movies, music and other large-bandwidth content. Comcast didn't discriminate against BitTorrent based on the content or, it says, to compete, arguing that it acted under its terms of usage so that consumers overall had the best experience. (Think of how controlling traffic with red lights gets to the ultimate destination faster.) Comcast and BitTorrent agreed in March that Comcast would find other techniques to manage its network. The companies issued a news release saying "these technical issues can be worked out through private business discussions without the need for government intervention." The FCC didn't take the hint.

The real problem is how to maintain the Web as a free and open commons, available for all to use in reasonable ways. An article in Britain's Guardian newspaper put it well: "The family gathers for tea, and there are four cream cakes for four people. If one person grabbed three of them, words would be said. However, peer-to-peer sharers think it's perfectly OK to grab three quarters of the communal internet bandwidth."

Instead of offering ways to keep the Web unclogged, the FCC decided that from now on it must approve how Internet service providers manage the fast-changing demands on bandwidth. The rationale suggests that the FCC now thinks of the Web as a "common carrier," the phrase earlier generations of regulators used to justify government management of industries.

Some history on this kind of regulation: In 1887, Congress decided that the new carriers of that era -- railroads -- could not be trusted to handle the traffic on their networks. It passed the Act to Regulate Commerce, which declared, "It shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever."

This sounds like how the FCC now wants to deal with the Web as a carrier of data. This 19th-century law led to the creation of the Interstate Commerce Commission, which micromanaged railroads and trucking for decades. Its regulations proved untenable, for example barring carriers from treating different kinds of freight differently. The ICC became a symbol of regulatory excess, crimping innovation and harming consumers. The agency was abolished in 1995 with bipartisan enthusiasm.

Today's call for government regulation is under the well-intentioned cry of "net neutrality," not the more accurate, "Let's regulate the Web the way they regulated railroads." If setting reasonable tariffs for railroad freight was overreaching, imagine regulators trying to set reasonable practices or prices for different packets of online data. Do we really want an FCC as modern-day ICC deciding how many YouTube video downloads are reasonable?

Internet service is a competitive business, though cable and telecommunication companies do themselves no favors by occasionally acting like duopolists, and they should disclose their network practices. The key matter of social policy is that the Web needs more investment to keep capacity growing faster than Web developers find ways to use it. This is harder as large-bandwidth movies and music migrate online. It will be harder still if potential investors conclude that pricing and network management will be regulated by anything other than supply and demand.

Government's role on the Web is to ensure more competition and more consumer choice, not less competition and diminished consumer choice by turning the Web into a regulated industry. The Internet has become one of the most powerful innovations of our time, in part because it hasn't been burdened by government intervention. Those of us who want to keep the Web free should remember that the best way to keep an industry free is simply to keep it free.

from PaidContent.org via the Washington Post, 2008-Jul-25, by Dianne See Morrison:

Italian Prosecutors To Charge Google Execs Over Third-Party Content

Four Google executives may be standing trial over failing to adequately monitor third-party content posted to their Italian language site. Italian prosecutors are preparing to file charges in a two-year old case against the Google employees over a video uploaded to the search giant's Italian site, the Wall Street Journal is reporting. Prosecutors are expected to charge the execs for defamation and violation of privacy after they failed to control the content of the site.

Google spokesperson Stefano Hesse said that the company has been cooperating with the authorities and had removed the video "within hours" of having been told of its presence on the site. The 191-second video shows four youths taunting their autistic classmate. He noted that under EU rules, and Italian law, the company isn't required to monitor third party content on its sites, but takes down any offensive material when it is notified.

The target of the investigation includes Google's legal representative and chairman of its Italian unit at the time; another Google Italy board member who has since left; its head of privacy policies in Europe; and its former head of Google Video for Europe. Note that the Italian authorities are going after these particular persons because they had "authority" over the operations involved.

Google is facing a number of lawsuits across Europe over uploaded videos. In April, French TV network TF1 sued YouTube, claiming intellectual property infringement. Two months later, Spain's Telecinco sued the site over the same issue. YouTube has agreed in court to remove videos requested by Telecinco.

from the Wall Street Journal's Political Diary, 2008-Jun-16, by John Fund:

He Was a Living Rebuke to McCain Feingold

Stewart Mott, the eccentric heir to a Michigan automobile fortune, died last week at age 70. During his life Mott contributed much of his considerable fortune to a variety of liberal causes, from population control to peace studies. But he will be best remembered for having provided much of the seed money for Gene McCarthy's insurgent 1968 campaign for president, one that toppled Lyndon Johnson and made the anti-Vietnam War movement politically viable.

McCarthy often said he could never have mounted his historic effort without Mott's $210,000 in seed money. The late Minnesota Senator always considered spending and political speech limits anti-democratic. He pointed out that the Founders pledged their "lives, fortune and sacred honor" to win the American Revolution. They didn't say "lives and fortunes up to a certain amount."

Mott agreed and joined with the ACLU and conservative Sen. James Buckley to challenge the 1974 law that limited his ability to make political donations. He won a partial victory but continued to criticize campaign-finance "reform." Former Federal Election Commission chairman Bradley Smith notes that today's campaign finance laws "pose a particularly high hurdle to unknown candidates" or those challenging the establishment. He points out that Teddy Roosevelt's 1912 Bull Moose third-party effort was funded entirely by a few wealthy backers. Barry Goldwater's 1964 takeover of the GOP, George McGovern's miraculous capture of the 1972 Democratic nomination along with Senator Buckley's own 1970 third-party victory as a Conservative in New York were all fueled by contributions from a few wealthy individuals. "McCarthy and I could not have done what we did under the present law," Mr. Buckley told me a few years back.

Today, campaign finance laws have effectively limited such insurgencies. The influence of money in politics is supposedly less, but in reality the real political power has been transferred to shadowy billionaires such as George Soros who can pour millions into political causes using non-transparent organizations, so long as no contributions go directly to a candidate. How this all has made politics better or cleaner escaped Stewart Mott, an honest liberal who was happy to spend his money openly on behalf of the causes and candidates he supported.

from the Wall Street Journal, 2008-Feb-26, p.B1, by Jane Spencer, with Yaroslav Trofimov contributing:

How a System Error in Pakistan Shut YouTube

Service on Google Inc.'s YouTube Web site was disrupted around the world for several hours Sunday after a botched effort by the Pakistani government to block access to a video clip critical of Islam.

The story began unfolding Friday when the Pakistan Telecommunications Authority, the nation's telecom regulator, ordered Pakistan's Internet-service providers to immediately block access to a specific YouTube video, which it said was so incendiary it could trigger riots. A senior official at the authority said it also contacted YouTube, requesting that the site remove the video. The authority argued the clip was a violation of YouTube's terms of service, which ban hate speech. YouTube has since removed the clip but says it doesn't comment on reasons for removing specific videos.

According to the senior official at the authority, the clip in question was about a soon-to-be released film made by Dutch politician Geert Wilders, whose outspoken comments against Islam have made him a target of protests in the Muslim world and elsewhere.

Mr. Wilders's own Web site says his film portrays the Quran as a fascist book that incites people to murder. Mr. Wilders has previously compared the Quran to Adolf Hitler's "Mein Kampf." On Fox News recently, he said, "Our culture is far better than a retarded Islamic culture." He didn't respond to requests for comment on the YouTube incident.

Even though fewer than 5% of Pakistan's households are connected to the Internet, the government feared the film could spark riots similar to the deadly violence that broke out in Muslim countries after a Danish newspaper published cartoons about the prophet Muhammad in 2006, according to a senior official at the authority. Violent protests have erupted repeatedly in Pakistan in recent months following the assassination of opposition leader Benazir Bhutto. There were also new protests about the cartoons in recent weeks after Danish authorities arrested several people who were allegedly plotting the assassination of the cartoonist behind the drawing.

But in a bizarre twist, the government's efforts to block the clip in Pakistan wound up affecting YouTube users around the world. YouTube spokesman Ricardo Reyes confirmed in an email that YouTube traffic was disrupted world-wide for several hours Sunday. "We have determined that the source of these events was a network in Pakistan," said Mr. Reyes. "We are investigating and working with others in the Internet community to prevent this from happening again."

The problem began when Pakistan Telecommunication Corp. Ltd. began implementing government orders to block the Dutch video on YouTube, according to people familiar with PTCL's network operations. The telecommunications company, Pakistan's largest, controls almost all of the nation's network infrastructure. The instructions sent out across its network were meant to apply only to traffic within Pakistan, a process commonly known as "black holing." But because of errors in the handling of PTCL's routers, the message started being replicated on the Internet world-wide, and other Internet-service providers started having trouble accessing the YouTube site.

The message was communicated around the world via PCCW Ltd., a Hong Kong telecommunications company that inadvertently transmitted the message internationally over its network. PTCL is connected to the global Internet through PCCW's networks, among others. Technical experts say this type of problem is extremely rare -- and is essentially beyond YouTube's control.

"The traffic that was supposed to be going to our address was being rerouted to Pakistan, and subsequently dropping," says Mr. Reyes of YouTube.

PCCW didn't respond to requests for comment.

Shahzad Ahmed, a civil-rights activist who monitors Internet issues for the group Rights for All in Pakistan, suggested that the government of Pervez Musharraf had another motive to block YouTube besides the Geert Wilders film. He said YouTube has been flooded with anti-Musharraf videos in recent weeks, including videos accusing the government of rigging the nation's election, crowds protesting against Musharraf and audio clips of a popular cellphone ring tone in Pakistan featuring the chant "Go Go Musharraf."

"People are putting a lot of material against Musharraf and the government on YouTube, and the government has been trying to find a reason to block this Web site," said Mr. Ahmed. "If this was really about the film and Islam, they would have blocked Wikipedia and tons of other sites containing hate material against Islam." Wikipedia's site, which isn't blocked in Pakistan, reprints the Danish cartoons that triggered the riots.

An official at the telecommunications authority, which regulates Internet censorship, said the accusations were without merit and the government was only trying to block materials related to Mr. Wilders's film because of their potential to trigger unrest. The official added that PTCL doesn't have the technical ability to block individual URLs, just entire Web sites, which led to the total YouTube blockout in Pakistan.

Pakistan intensified its Internet-censorship efforts two years ago, following the cartoon flare-up, and the Supreme Court instituted a ban on all content deemed "blasphemous." But Pakistan's telecom authority has also regularly filtered content determined to be antistate or antimilitary, according to the OpenNet Initiative, a global organization that promotes freedom of information on the Internet.

YouTube reserves the right to remove content from the site that it deems inappropriate, according to the terms of service posted on its site. YouTube's community guidelines state: "We encourage free speech and defend everyone's right to express unpopular points of view....But we don't permit hate speech."

Many of Pakistan's Internet users received notices about the ban on YouTube from their Internet-service providers. "Dear Valued Customer," reads one from Micronet Broadband Ltd. "The Pakistan Telecommunication Authority has directed all ISPs of the country to block access to www.youtube.com for containing blasphemous Web content/movies." The letter asked Internet users to write YouTube.com to urge it to remove the objectionable videos.

• See the order issued by the Pakistan government requesting that the site be blocked. (Adobe Acrobat required)

from the Washington Post online, 2008-Jun-16, by Joseph Weisenthal of paidContent.org:

AP Wants Change In Blog Excerpting, Just Not Sure What

The AP is spoiling for a fight it can't win. It started last week when the news organization took exception with the linking and excerpting practices at the Drudge Retort (not theDrudge Report), a liberal social news site run by longtime blogger Rogers Cadenhead. You can see some examples of the posts the AP wanted taken down here, but basically the posts contained nothing unusual: a headline and a fairly short snippet from the actual article. No surprise: the move prompted a major blog-borne blowback.

Following that, AP VP Jim Kennedy told the NYT that it regretted its "heavy-handed" approach to theDrudge Retortand that it would "rethink" its attitude towards bloggers. Ok. But from there the AP's goals are pretty unclear. Jeff Jarvis characterizes the AP's back-and-forth stance as a "policy ping-pong game". Kennedy says they don't want to sue bloggers, but they're not withdrawing their take-down demands. He says they don't want to cast a pall over the blogosphere but that they want blogs to use short summaries, rather than even short quotations. Basically it comes down to this: the AP doesn't want blogs to convey the news in the article; it wants readers to go to the article. The next step: developing guidelines for blog linking and summarizing. Apparently it plans to meet with the Media Bloggers Association, but if it thinks that group somehow represents or holds sway over a lot of bloggers, it will be sorely mistaken.

The AP's ambivalent attitude was clear when I interviewed AP CEO Tom Curley last year. While talking up the web 2.0 ethos of free-floating content, he also balked at what some would consider fair use: "If you want our content, we expect to be paid for it ? this nonsense that you can just take the first paragraph or use the picture small doesn't really fly with us."

Of course, the AP is in somewhat charted territory here, having been in court with Moreover for awhile, over basically the same thing. But it's one thing to go after a large, commercial organization (VeriSign), and it's quite another, strategically, to go after a rather small social news community with a few BlogAds running along the side. The fact that it chose this site of all of them is sending a strong signal. It's not going to work, of course. It's probably the ultimate tilting-at-windmills situation. In the meantime, the organization will take considerable hits to its reputation.

from ArsTechnica.com, 2007-Nov-28, by Jacqui Cheng:

Congress to examine "the Internet" as a tool for homegrown terrorism

The House of Representatives last month passed a bill known as the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007, which asks the National Commission on the Prevention of Violent Radicalization and Homegrown Terrorism to develop tools to monitor and combat "homegrown terrorism" along with the promotion of ideologically-based violence within the US. In particular, the bill cites the Internet as a tool used to facilitate "violent radicalization." Despite some of the alarmist coverage of the bill, however, there is only one mention of the 'Net. 

The bill was introduced earlier this year by Rep. Jane Harman (D-CA), and it passed by a 404 to 6 margin. It's off to the Senate now, where it may still stagnate and disappear. Given its heavy support in the House and focus on a hot-button issue, though, we can expect that members of the Senate will at least consider what is being proposed in the name of fighting terrorism.

Here's the section of the bill that has some observers up in arms:

The Internet has aided in facilitating violent radicalization, ideologically based violence, and the homegrown terrorism process in the United States by providing access to broad and constant streams of terrorist-related propaganda to United States citizens.

The section quoted above is, in fact, the only specific mention of the Internet in the bill. The remainder of the "findings" only vaguely address a need to understand, prevent, and combat homegrown terrorism in the US—all of which are noble goals—with the Internet being the only tool singled out.

The bill also calls on the DHS to establish a grant program to prevent radicalization, create university-based centers of excellence for the "Study of Radicalization and Homegrown Terrorism" in the US, and study the methodologies used by other countries to prevent radicalization and homegrown terrorism.

It's no secret that terrorists use the Internet to aid communications—it is, after all, extremely quick and mostly anonymous. Indeed, the head of US Homeland Security, Michael Chertoff, warned us last year that terrorists can "train themselves over the Internet" without ever having to set foot in a training camp. The 'Net can be used to spread propaganda, engage in psychological warfare, recruit, network, and coordinate attacks. But so can plenty of other communications tools. Cracking down on 'Net propaganda can be difficult, too, because of the cross-border nature of the Internet, but that hasn't stopped the EU from trying to ban the distribution of bomb-making instructions online. Should this law pass, it is possible that such restrictions would be proposed for the US, but any proposals would still have to pass a Congressional vote and judicial review.

The bigger bone of contention is that the law will simply fund paranoia towards dissidents and could even set off another wave of McCarthy-style hysteria over "terrorists" in the US. Because the bill leaves all definitions up to the committee, critics like Philip Giraldi worry that it will be used to target just about everyone who dislikes some aspect of government policy. Writing for the left-leaning  Huffington Post, Giraldi argues that the act "could easily be abused to define any group that is pressuring the political system as 'terrorist,' ranging from polygamists, to second amendment rights supporters, anti-abortion protesters, anti-tax agitators, immigration activists, and peace demonstrators. In reality, of course, it will be primarily directed against Muslims and Muslim organizations."

Similar claims are made in a lengthy piece at The Indypendent, and a follow-up piece on blogosphere reaction shows just how hyped-up the rhetoric here has become ("Stop S. 1959 or lose Internet free speech," one poster wrote). Such rhetoric seems more than a bit over the top, since the commission doesn't have the power to make laws or to rewrite the Constitution. Still, if the issue concerns you, now would be an excellent time to contact your senator.

from InformationWeek, 2007-Sep-12, by Thomas Claburn:

Fair Use Worth More to Economy Than Copyright, CCIA Says

Fair use exceptions to U.S. copyright laws account for more than $4.5 trillion in annual revenue for the United States, according to a report issued on Wednesday by the Computer and Communications Industry Association.

"Much of the unprecedented economic growth of the past 10 years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and nonlicensed manner," CCIA president and CEO Ed Black said in a statement. "To stay on the edge of innovation and productivity, we must keep fair use as one of the cornerstones for creativity, innovation, and, as today's study indicates, an engine for growth for our country."

By one measure -- "value added," which the report defines as "an industry's gross output minus its purchased intermediate inputs" -- the fair use economy is greater than the copyright economy.

Recent studies indicate that the value added to the U.S. economy by copyright industries amounts to $1.3 trillion, said Black. The value added to the U.S. economy by the fair use amounts to $2.2 trillion.

The fair use economy's "value added" is thus almost 70% larger than that of the copyright industries.

The $4.5 trillion in annual revenue attributable to fair use represents a 31% increase since 2002, according to the report, which claims that fair use industries are responsible for 18% of U.S. economic growth and almost 11 million American jobs.

The fair use doctrine allows the use of copyrighted material without a license from the copyright owner.

CCIA members include Google, Microsoft, Yahoo, and many other tech companies that benefit immensely from fair use. The media also benefits from fair use -- quoting the copyrighted CCIA report would be illegal were it not for fair use. The same can be said for anyone who has ever printed copyrighted material from a Web page, sent copyrighted material in an e-mail, or used a recording device of some sort to capture copyrighted audio or video.

According to the U.S. Copyright Office, use of copyrighted material may be considered fair use based on four criteria: "the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work."

However, assuming a use qualifies as fair use remains a gamble. The distinction between fair use and infringement isn't easily defined, as the Copyright Office puts it. Companies like Google, which has been sued at least four times so far this year for copyright infringement, know this all too well.

Black said his organization's aim in releasing this report is to encourage lawmakers to recognize that copyright legislation requires balance. "What it points out is there's an important chunk of the economy that's impacted by what happens to copyright law," he said. "It points out to some extent ... that when you focus on only one side when making policy changes and don't recognize that, you're going to have a collateral impact on the other side."

"Copyright was created as a functional tool to promote creativity, innovation, and economic activity," said Black. "It should be measured by that standard, not by some moral rights or abstract measure of property rights."

from OpinionJournal.com's Political Diary, 2007-Jun-25, by John Fund:

In Fairness, Shut Up

It really does appear that liberal Democrats are planning an attempt to revive the Fairness Doctrine as a way of curbing conservative talk radio. They may even have some quiet Republican allies in their effort.

Twenty years ago, the Reagan Administration scrapped the Federal Communications Commission rule that mandated broadcast licensees "afford reasonable opportunity for discussion of conflicting views on matters of public importance." Last week, Oklahoma GOP Senator Jim Inhofe reported that both Senators Hillary Clinton and Barbara Boxer had talked of the need for a "legislative fix" to rein in talk radio hosts, although he acknowledged the conversation he had overheard was three years old. But when Senator Dianne Feinstein, Ms. Boxer's Senate colleague, was asked by Fox News yesterday if she wanted the Fairness Doctrine restored, she acknowledged she was "looking at it" and asserted that in the halcyon days when the Doctrine was in force there was "much more careful and correct reporting to people."

In reality, the Fairness Doctrine stifled discussion of controversial issues and was used as a political billy club by both parties against critics. Bill Ruder, an assistant secretary of commerce under John F. Kennedy, admitted to CBS News producer Fred Friendly that "our massive strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue."

Richard Nixon didn't require much incentive to follow in those footsteps. Jesse Walker of Reason magazine reports that the Republican National Committee routinely filed challenges against stations whose reporting upset the White House. During the antiwar demonstrations of October 1969, a paranoid Mr. Nixon issued orders 21 times to aides to take "specific action relating to what he considered unfair network news coverage." Luckily, most of his rantings were ignored by aides who believed he was just blowing off steam. But other efforts at intimidation of journalists -- including the famous "enemies list" -- proceeded.

Even without overt government hostility, the Fairness Doctrine proved a nightmare of compliance. Liberal journalist Nat Hentoff recalls that when he worked at a Boston radio station, "the front office panicked" whenever a complaint was filed. "The brass summoned all of us and commanded that from then on, we ourselves would engage in no controversy at the station."

Given that the Democratic Congress now boasts approval ratings even below those of President Bush, I can understand the interest of some of its leaders to quell controversy. But for the rest of us, a return to the Fairness Doctrine would lead to a more homogenous and timid media culture. In other words, exactly the kind of climate that incumbents of both parties find congenial and easy to live with.

from the Wall Street Journal via OpinionJournal.com, 2007-Apr-30, by John Fund:

When Talk Isn't Cheap
Campaign finance regulators say speech isn't free--it's a form of "contribution."

Campaign finance laws are increasingly becoming a tool to suppress political speech, and the courts are finally waking up to the danger. Last week a unanimous Washington state Supreme Court struck down an outrageous interpretation of a law that had been used to classify the antitax comments of two Seattle talk-radio hosts as "campaign contributions" subject to regulation--that is, suppression--by local prosecutors and officials who disagreed.

Washington's highest court struck down a decision by Superior Court Judge Chris Wickham, who in 2005 ordered KVI radio hosts John Carlson and Kirby Wilbur had to place a monetary value on "campaign contributions" they made when they argued in favor of Initiative 912, a ballot measure to repeal a 9.5-cent-a-gallon increase in the state's gasoline tax. The antitax measure ultimately lost by 6% of the vote, in part because its opponents outspent its supporters by 20 to 1.

But the "unofficial" support of the measure by talk-show hosts such as Messrs. Carlson and Wilbur, who went so far as to actively tell listeners how they could sign petitions to get I-912 on the ballot, infuriated the self-styled Keep Washington Rolling coalition, which backed the gas tax hike. The coalition convinced a local prosecutor in San Juan County, along with the cities of Kent, Auburn and Seattle, to sue KVI radio demanding that it be brought under the state's campaign finance laws.

In siding with the localities, Judge Wickham insisted he was not restricting speech, merely requiring the reporting of "in kind" contributions to the antitax campaign. But in fact he was equating speech to money, for these "contributions" consisted entirely of speech.

State law bans any entity from contributing more than $5,000 in cash or services within three weeks of an election. As the November 2005 election neared, the state's Public Disclosure Commission warned the group sponsoring Initiative 912 that it faced fines, penalties and civil prosecutions if anyone contributed more than $5,000--and that Messrs. Carlson and Wilbur could violate the law if they kept talking about Initiative 912 as the election approached. "The idea that I couldn't talk about I-912 in the last 2 1/2 weeks of the campaign, which are the most pivotal, was just outrageous," Mr. Carlson told me.

First Amendment scholars tell me that if the Supreme Court had upheld Judge Wickham's ruling, it would have had a chilling effect on talk and news shows across America. And what would have been next? A judge ordering a newspaper to determine a monetary value for an editorial endorsement? In Parker North, Colo., residents who are fighting an annexation move are being sued merely for putting up yard signs and passing out flyers without registering these "contributions" with state election officials.

Washington's largely liberal Supreme Court agreed that political free speech was jeopardized by the attempt to regulate media outlets under campaign finance laws. Writing in concurrence, Justice Jim Johnson noted, "Today we are confronted with an example of abusive prosecution by several local governments. . . . This litigation was actually for the purpose of restricting or silencing political opponents." The court took the unusual step of sending the case back to the trial court to determine the nature of any constitutional violations the prosecutors who brought the case committed and whether the Initiative 912 supporters have a right to collect attorneys' fee from the local governments who sued them.

---

Also last week, the U.S. Supreme Court heard arguments in a case involving a Wisconsin pro-life group that ran afoul of McCain-Feingold restrictions on ads run by advocacy groups within 60 days of an election. Court observers believe the oral arguments went well for those challenging the law, and there is cautious optimism the court will pare back its pro-regulatory view of political speech. Certainly, the Supreme Court justices would benefit from a close reading of the Washington state court's decision.

Those in the media who support campaign regulations such as McCain-Feingold, believing that their own free speech is safe, could stand to read the decision too. The zealous pursuit of Messrs. Carlson and Wilbur showed how overreaching government officials can use such laws to intimidate the media into silence. One can only imagine how the media cheerleaders of McCain-Feingold would have reacted if they had been ordered to estimate a value for their all-out efforts to promote the legislation and were then faced with restrictions on their own speech.

from TheRegister.co.uk, 2007-Oct-23, by Paolo Attivissimo:

Proposed blogging law outrages Italian netizens
Gov backpedals after brouhaha prompts comparisons with Burma

Italian bloggers may be required to register with a national database, unless an ambiguously-worded new law is amended before it comes into force.

Widespread outrage among bloggers and IT-savvy journalists has reached the mainstream press, and the government now appears to be keen to revise a draft law which has led politician Francesco Caruso to remark: "This is Italy, not Burma."

The law got its initial approval from Mr Prodi's Cabinet of Ministers in mid-October, as part of a package attempting to tidy up Italy's publishing-related regulations, and requires further approvals before coming into force.

According to many legal experts, the murky text of the law (pdf) can be construed to include non-professional, not-for-profit blogs and websites among "editorial products", giving them the same duties and liabilities as magazines and newspapers.

This would require even the lowliest Italian blogger or MySpace account holder to go through the hassle of filing personal details with the national registry of "communication operators" currently reserved for professionals of the publishing sector.

Besides its Big Brother-esque implications, this registration would also expose bloggers to penalties and jail terms if a blog post, or even a reader's comment, were considered libelous.

Ironically, the package was officially intended to simplify the paperwork and hassle currently required to run a magazine-style blog or site in Italy and to have access to state subsidies.

Not so, says leading Italian blogger and popular showman Beppe Grillo, who has spearheaded the protest against what he calls a "gag on the internet's mouth". This has prompted Undersecretary Ricardo Franco Levi, who wrote the law's text, to explain that the rules of application, to be drafted by the Communications Regulatory Authority, have yet to decide whether ordinary bloggers will fall within the scope of the new law.

Such reassurance has not stopped government ministers from trying to distance themselves from the controversy caused by the law they had just approved. Mr Gentiloni, the minister of communications, has acknowledged in his blog that the law "needs fixing".

Mr Di Pietro, the minister of infrastructures, has even called it a "liberty-killing law" in his blog post.

Accordingly, the chances of this law becoming effective in its current form are exceedingly slim, so there is no immediate cause for concern. The blog brouhaha may turn out to be another storm in a teacup, but it has certainly shown Italian netizens once again that their government is remarkably out of touch with the realities of the internet age. ®

from ArsTechnica.com, 2007-Jul-15, by Ken Fisher:

Net radio "compromise" hinged on DRM adoption

As we reported Friday, the looming royalty crunch on Internet radio that would have begun today (July 15) was narrowly averted last week by a temporary reprieve from SoundExchange. Now it appears that a lasting compromise is indeed possible, but such a compromise will likely mean mandatory DRM (Digital Rights Management) for Internet radio.

The original decision by the Copyright Royalty Board would have tripled royalties over the next three years: an increase which many webcasters said would straight-up put them out of business. Political positioning or not, SoundExchange didn't want July 15 to be a date that lived on in infamy, so they offered a temporary reprieve and laid out the terms for a new compromise. We have to agree with Rep. Jay Inslee (D-WA), who warned that a July 15^th cut-off could have made the situation rather unfavorable for SoundExchange. "Whatever congressmen and women have heard to date, you're going to hear five to ten times as much after July 15 [if net radio stations go dark]," Inslee told a hearing of the House of Representatives Subcommittee on Small Business.

That catastrophe has been averted, and SoundExchange looks ready to deal. Yet it appears that the CRB-backed royalty increase and the increased per-station fees may be leveraged to accomplish something else the music industry would really like to see: Internet radio locked down in DRM.

After news of the temporary compromise broke, SoundExchange eventually distributed a press release (PDF) that characterized its compromise offer. It speaks for itself (emphasis added):

"SoundExchange has offered to cap the $500 per channel minimum fee at $50,000 per year for webcasters who agree to provide more detailed reporting of the music that they play and work to stop users from engaging in 'streamripping'—turning Internet radio performances into a digital music library," reads the statement.

A source at a major MP3-based Internet radio station who did not want to be named told Ars Technica that this is not the first time that SoundExchange has expressed interest in seeing streaming media locked down with DRM, but this is the first time it has been laid down on the table as absolutely necessary to any compromise that would deviate from the royalty agreement already approved by the Copyright Board.

The source also tells me that DRM is the only plausible "tool" at the disposal of webcasters to accomplish SoundExchange's goal of working to stop music "streamripping." It would appear that the more things change, the more they stay the same. The music industry is very worried about users recording Internet radio for the purposes of "disaggregating" music, and the message seems to be that if webcasters will scratch the industry's back, then a better deal is possible. Too bad it's a deal that could kill another potential avenue of fair use (recording radio), and limit users' ability to enjoy radio by limiting playback to clients that support DRM.

from TheInquirer.net, 2007-Aug-30, by Nick Farrell:

Viacom's copyright cops get carried away
Threaten film-maker

VIACOM LAWYERS have claimed that a bloke infringed its copyright by showing some of its VH1 show Web Junk 2.0 on Youtube.

The problem is that Viacom appears to have stolen the content in the first place from the same guy they are complaining about.

Independent film maker Christopher Knight made the videos around a Star War's theme when he stood for the local schoolboard. VH1 liked the idea of someone pitching themselves by using the Death Star to blow up a little red schoolhouse and ran it on its Web Junk 2.0 program.

They forgot to tell Knight and he heard about it from friends. He didn't mind too much. The program was witty and it did give him 15 minutes of fame. Writing in his bog, Knight said that he was so proud that he posted the segment featuring it on YouTube just like he had posted the original commercial.

As far as he was concerned it was fair use considering Viacom had done the same thing to him. Next thing that happened was that he got a note from YouTube saying it had taken down the flick because Viacom had complained. Knight was incandescent with rage - after all, Viacom took a video he had made for non-profit purposes and without trying to acquire his permission and used it in a for-profit broadcast. And then when he made a YouTube clip of what they did with his material, they charged him with copyright infringement and had YouTube pull the clip.

Now he is thinking of suing Viacom. More here.

from the Wall Street Journal via OpinionJournal.com, 2007-Jun-23:

Mike Bloomberg's Money
Making politics easier for billionaire candidates.

Let's face it: There's one overriding reason anyone is talking about Michael Bloomberg running for President. It isn't New York City's real estate boom, budget surpluses or his political philosophy. It's his money.

Mayor Bloomberg, in his regular denials that he intends to run for President, likes to note that a "short, Jewish, divorced billionaire" doesn't sound very electable. We're not sure how important the first three traits are, but the last, far from disqualifying him, is the main reason behind the Bloomberg boomlet. Unlike most other American politicians, he is rich enough to finance his own independent Presidential campaign. And thanks to our campaign finance laws, he's a rare candidate who doesn't have to raise money in hundreds of $2,300 or smaller increments.

Prior to the campaign finance "reforms" of the 1970s and McCain-Feingold of 2002, it was possible for a political maverick like Eugene McCarthy to mount a campaign with the money of a couple of well-heeled backers. These days, a Stewart Mott or Jack Dreyfus could only advance their views by running themselves. This is not progress.

We've had three decades worth of scolds talking about the need to get money out of politics, but the only result has been to force that money into different, and often less transparent, channels. No one seriously thought "clean Gene" McCarthy was being bought by Messrs. Mott and Dreyfus, and in any case their support was known and public for all to see. Now, thanks to campaign finance reform, we have replaced fat-cat donors with fat-cat candidates and the political machines of the likes of fat-cat George Soros.

---

We don't begrudge Mr. Bloomberg a cent of his money, and he should be free to spend all of it on politics if he wishes, including on a run for President. The Supreme Court has said he has that right. But no one has so far explained why it's fine for Mr. Bloomberg to advance his own political career using his personal fortune, but it would be "dirty" for him to bankroll someone else who shared his agenda. As long as voters knew where the money came from, they'd be free to decide whether it tainted the candidate or not. Such donations could be posted instantly on the Internet.

It is often said that billionaires should not be able to "buy" elections, and that strict donation limits weed out candidates without a broad base of support. But now a billionaire really can buy an election, in the sense that he is unrestrained by the limits imposed on everyone else. Mr. Bloomberg spent an estimated $160 million on his two mayoral campaigns, literally overwhelming his competitors with TV ads. Restricting billionaires to financing themselves, far from increasing political competition, has reduced it.

Barack Obama has defied conventional wisdom by raising enough money to compete with Hillary and Bill Clinton's campaign juggernaut, but the rest of the Democratic field is less fortunate. Surely Chris Dodd, Senator from the hedge-fund capital of the world, could find some wealthy backers for his campaign if the rules permitted it. The money would hardly guarantee him success, but it would give him a fighting chance to put his agenda on the table, leaving voters to decide whether they liked what they heard. The same goes for New Mexico Governor Bill Richardson, a candidate of significant experience who is struggling to raise enough money because he comes from a small state and is less well-known than his competitors.

Mr. Bloomberg has recently complained about the dearth of good Presidential candidates--presumably one reason he may take the independent plunge. We'd like to see him acknowledge that one reason for that dearth is that a short, Jewish, divorced billionaire can't write a check larger than $2,300 to anyone but himself.

from the New York Times, 2007-Jun-25, by David Stout:

Justices Loosen Restrictions on Campaign Ads

WASHINGTON — The Supreme Court today loosened the restrictions on what companies and unions can spend on television advertisements just before elections, and in so doing may well have affected the thinking of political strategists for the 2008 elections.

By 5 to 4, the court ruled that an anti-abortion group in Wisconsin should have been allowed to broadcast ads before the 2004 race for the United States Senate in that state. In its ruling today, the high court opened a significant loophole in the Bipartisan Campaign Reform Act of 2002, familiarly known as the McCain-Feingold law, to curb donations to campaigns.

Writing for the majority, Chief Justice John G. Roberts Jr. said that, when regulating what can be said in a campaign and when it may be said, “the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.”

In another 5-to-4 ruling involving free speech, the court ruled today against an Alaska high school student, finding that educators can prohibit student expression that can be interpreted as advocating drug use.

Today's ruling in the campaign-finance case focused on the Supreme Court's decision in 2003, when there was a different lineup of justices, upholding a key section of the McCain-Feingold law. That section bars companies and unions from paying for ads even mentioning the name of a candidate for federal office in the 60 days before a general election or the 30 days before a primary.

The 2004 ads in question mentioned Senators Russell D. Feingold and Herb Kohl, both Wisconsin Democrats, and urged viewers to contact them and urge them to oppose their Democratic colleagues' opposition to some of President Bush's judicial nominees. The ads directed viewers to a Web site critical of Mr. Feingold, who was up for re-election.

Mr. Feingold and Senator John McCain, Republican of Arizona, were the main sponsors of the campaign finance law. Its supporters see it as a valiant attempt to regulate the spigots that pour oceans of corrupting money into political campaigns. Its detractors see it as interference with free speech, and as unrealistic in view of the huge sums of money needed to run a political campaign.

The Wisconsin Right to Life organization sued the Federal Election Commission, seeking a judgment declaring that the pertinent McCain-Feingold section was unconstitutional. A special three-judge federal court panel ruled in favor of the anti-abortion group, finding that the ads' text and images did not show that they were “intended to influence the voters' decisions” but were “genuine issue ads” that the government could not keep off the air.

Today, the Supreme Court majority concluded that the special judicial panel was right in holding that the ads should have been allowed. “Because WRTL's ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate, they are not the functional equivalent of express advocacy,” the majority said, using the term for ads that urge a candidate's election or defeat.

To safeguard freedom of speech, the majority said, scrutiny of challenges to the McCain-Feingold law “must be objective, focusing on the communication's substance rather than on amorphous considerations of intent and effect.”

In defining what qualifies as “express advocacy,” or ads zeroing in on a candidate to promote or denounce him, “the court should give the benefit of the doubt to speech, not censorship,” the majority said.

Chief Justice Roberts wrote the opinion upholding the special court. Siding with him were Justices Samuel A. Alito Jr., Antonin Scalia, Anthony M. Kennedy and Clarence Thomas, although the last three jurists would have gone further and declared the pertinent section of the law unconstitutional. Chief Justice Roberts and Justice Alito said only that the anti-abortion group's ads should not have been banned under the section.

When the McCain-Feingold law was upheld in 2003, Chief Justice William H. Rehnquist was one of the four dissenters who would have overturned it. Justice Sandra Day O'Connor, who was succeeded by Justice Alito, wrote the majority opinion.

In the case decided today, Federal Election Commission v. Wisconsin Right to Life, No. 06-969, Justice David H. Souter wrote a dissent that Justices John Paul Stevens Ruth Bader Ginsburg and Stephen G. Breyer joined.

“After today,” the dissenters said, “the ban on contributions by corporations and unions and the limitation on their corrosive spending when they enter the political arena are open to easy circumvention, and the possibilities for regulating corporate and union campaign money are unclear.”

The dissenters expressed dismay over today's ruling and said it could portend a new wave of public cynicism about the role of big money in politics.When the case decided today was argued on April 25, Solicitor General Paul D. Clement, arguing on behald of the election commission, said that to find that the Wisconsin ads should have been allowed to run would leave the McCain-Feingold law “wide open.” Justice Breyer predicted then that a ruling like today's could mean, in effect, “Goodbye, McCain-Feingold.”

Whether that is indeed true may not be clear for a while. But it seemed abundantly clear after today's ruling that the broader debate over campaign money, which a California politician once famously called “the mother's milk of politics,” will go on, especially with the 2008 presidential campaign already well under way.

Senator Feingold issued a statement today expressing disappointment. “The Federal Election Commission should not allow today's decision to open the door for a return to the pre-McCain-Feingold days of phony issue ads and unlimited corporate and union spending on campaigns,” he said. “If that is the result, the court will have done the country a great disservice.”

In the Alaska case involving free speech, the court found that a high school principal and school board did not violate a student's rights by punishing him for displaying the words “Bong Hits 4 Jesus” on a banner across the street from the school as the 2002 Olympic torch parade went by.

When the case was argued on March 19, Kenneth W. Starr argued — successfully, as it turned out — on behalf of the school authorities that, whatever rights students may have to express themselves, thumbing their noses at school officials' anti-drug messages is not one of them.

from WorldNetDaily, 2007-Jun-5, by Bob Unruh:

N-word fine, but 'family values' banned
Christians challenge ruling that 'hate speech' could scare workers

A Christian organization fighting on behalf of religious and speech rights is going to the U.S. Supreme Court to challenge an appellate court decision that found municipal employers could censor words such as "marriage" and "family values" because they are hate speech and could scare workers.

At the same time, those municipal officials for the city of Oakland, Calif., were allowing employees to exchange epithets such as the N-word, the appeal said.

"To allow the lower court's ruling to stand exposes every public employee to outright censorship by a municipal employer for merely mentioning words such as the 'natural family,' 'marriage,' 'and 'family values,' issues which are at the forefront of national debate," said the appeal prepared by the Pro-Family Law Center.

"In fact, the lower courts' decisions could preclude a public employee from so much as mentioning the birth of one's child or the fact that they were just married because this might theoretically offend a co-worker," said the file in the case argued at the 9th Circuit Court of Appeals level by Richard D. Ackerman, of the Pro-Family Law Center, as well as Scott Lively.

"We are simply unwilling to accept that Christians can be completely silenced on the issues of the day – especially on issues such as same-sex marriage, parental rights, and free speech rights," Ackerman told WND.

"If we fail to get U.S. Supreme Court review, however, it will be up to each individual Christian in the United States to stand up for their rights to be heard on the issues of the day. If we choose to be silent, silenced we shall be," he said.

The case involves the Good News Employee Association and two women, Regina Rederford and Robin Christy, who wanted to launch the organization among co-workers. They put up an announcement on an Oakland city bulletin board asking those interested in those "family" issues to contact them.

This came after the same bulletin board – as well as the city's e-mail system – had been used to promote speech "concerning war, health-care, peace, employee outsourcing, sports, racism, slavery, spirituality, hate, God, the Gay-Straight Employee Alliance, tolerance, homosexuality, 'coming out,' diversity, Christ, the Bible, sexuality, and a host of other topics," the appeal said.

None of those topics was a problem. However, their supervisors ordered the two Christians' announcement about Good News pulled down, and issued a warning that such "homophobic" literature could lead to penalties up to and including dismissal, the law firm said.

The decision was affirmed by the 9th Circuit, which issued an unpublished "memorandum." in the dispute.

It found that municipalities have a right to dictate what form an employee's speech may take, even if it is in regard to controversial public issues.

"Public employers are permitted to curtail employee speech as long as their 'legitimate administrative interests' outweigh the employee's interest in freedom of speech," said the court's opinion noted.

"The district court appropriately described [the Christians' speech rights] as 'vanishingly small,'" the opinion continued.

"This incredible and devastating ruling has had the practical effect of silencing hundreds, if not thousands, of City of Oakland employees who simply wish to talk about marriage and family values. To the extent that this ruling has been shared by Oakland with other cities, there is a huge risk that these rulings are being treated as precedent by other cities across the nation. In fact, one of the defendants is presently in charge of the Washington, D.C., school district," the Pro-Family firm said.

The two Christian women had brought a complaint over the censorship of their announcement against the city as well as Joyce Hicks, the deputy executive director of the Community & Economic Development Agency in Oakland, and Robert Bobb, as city manager.

The lawsuit developed in 2002 when the women chose to create the Good News Employee Association, "in response to Bible-bashing by ranking city officials and free rein given to radical left-wing groups over the city's e-mail and bulletin board systems," the law firm said.

The Pro-Family Law Center noted that city-approved e-mails have included establishing an "altar" for Day of the Dead, and one e-mail that was circulated said, "I personally think the good book (Bible) needs some updating…"

The Christians' notice said:

Good News Employee Associations is a forum for people of Faith to express their views on the contemporary issues of the day. With respect for the Natural Family, Marriage and Family values.

If you would like to be a part of preserving integrity in the Workplace call Regina Rederford @xxx- xxxx or Robin Christy @xxx-xxxx

"The mere publication of these words was met with a direct threat of termination from employment," the law center said. "[The women] have been absolutely chilled in the exercise of free speech and cannot afford to lose their jobs."

Meanwhile Oakland's Gay-Straight Employees Alliance "was openly allowed to attack the Bible in widespread city e-mails, to deride Christian values as antiquated, and to refer to Bible-believing Christians as hateful. When the plaintiffs attempted to refute this blatant attack on people of faith, they were threatened with immediate termination by the City of Oakland. The Ninth Circuit did not feel that the threat of immediate termination had any effect on free speech," the appeal said.

U.S. District Judge Vaughn Walker had ruled in 2005 that Oakland had a right to prevent the employees from posting that Good News Employee Association flier promoting traditional family values on the office bulletin board.

"The city of Oakland has interpreted this district court's ruling to mean that Christianity has no place in our society and should be subject to punishment. I want to believe that our Supreme Court will ultimately decide this case on the values and instructions set forth in motion by the nations Founders," said Ackerman.

His arguments are based on the 1st Amendment and the 14th Amendments.

"With the likelihood of a lively and important national debate about same-sex relationships, religion, and the future of our nation in the upcoming 2008 presidential election, there exist compelling reasons for granting review in this case. If review is not granted, there is an imminent likelihood that thousands of California's Bay Area employees will be chilled in the exercise of free speech … or completely silenced during a time where friendly debate about national issues should not only be allowed but invited," the appeal said.

During Bobb's tenure, employees were allowed to discuss just about anything they wanted except for threatening or actual violence against other employees. "In fact, employees could actually refer to each other as 'niggers' or other such derogatory terms, as a form of 'workplace speech,'" the appeal said. "It's hard to believe Respondent Bobb would allow the term 'nigger' to be used …but not the terms 'natural family, marriage and family values.'"

Ackerman's firm represents the women and said the Pro-Family Law Center and Abiding Truth Ministries have helped underwrite the thousands of dollars it has cost to fight the city's aggressive promotion of the homosexual lifestyle.

from the International Herald Tribune (NYT Paris), 2007-May-18, by Doreen Carvajal:

Governments using filters to censor Internet, survey finds

PARIS: With the aid of sophisticated software, government censorship of the Internet is spreading into a global phenomenon, with tech-savvy governments filtering forbidden themes from politics and human rights to sexuality and religion, according to a new academic survey of 40 countries.

In the past five years, the practice has grown beyond a handful of countries, including Iran, China and Saudi Arabia, to 26 nations that block a wide range of topics as they adopt filtering techniques, according to an OpenNet Initiative report to be issued Friday in Oxford, England.

"It's an alarming increase," said Ron Deibert, associate professor of political science at the University of Toronto, one of four universities participating in the yearlong study along with Harvard, Oxford and Cambridge. "Once the tools are in place, authorities realize that the Internet can be controlled. There used to be a myth that the Internet was immune to regulation. Now governments are realizing it's actually the opposite."

Instead of blocking static Web sites, governments are focusing on entire Internet-based applications like YouTube, Skype and Google Maps, according to the report. They also are adopting furtive, just-in-time filtering to knock out the Web sites of political opposition groups during critical election periods, Deibert said.

About 100 researchers studied thousands of Web sites and discovered 200,000 examples of Internet filtering. Most of the countries evaluated in the study filtered out a wide set of themes, suggesting that once nations adopt blocking tools, they expand their range.

Countries like China, Iran, Syria, Tunisia, Vietnam, Uzbekistan, Oman and Pakistan followed a broad approach, accord to the report. Tunisia, which was host to a United Nations summit on the information society in 2005, focused on four themes: human rights, political opposition to the government, pornography and "anonymizer" sites that offer tools to circumvent controls online.

But there are territorial differences. Vietnam and Uzbekistan tend to focus mostly on local content while largely ignoring international Web sites. Middle Eastern countries pay more attention to international news, with Iran blocking the BBC's site. Saudi Arabia focuses on censoring social content like pornography and gambling, though it also restricts political sites critical of the Saudi monarchy or non-Sunni Islam sites.

"This balance mirrors the use of commercial software, generally developed in the West, to identify and block Internet content," according to the study. One of the more popular software tools is SmartFilter, a product of Secure Computing in San Jose, California, which is used by Saudi Arabia, the United Arab Emirates, Oman, Sudan and Tunisia.

In Tunisia's case, researchers found that when they tried forbidden sites, a page that looked like an Internet Explorer browser default page was displayed to disguise that censorship was taking place.

The report also found that some countries pursued only specific approaches or exerted little control over the online universe. South Korea filters only North Korean sites, many of them originating in Japan. Jordan, Morocco and Singapore were also sparing, filtering just a handful of sites.

Researchers discovered no evidence of filtering in more than a dozen of the surveyed countries, among them Russia, Venezuela, Egypt, Hong Kong, Israel and Iraq.

The United States and much of Europe were not studied in the survey because in those countries, filtering is focused primarily on copyright infringement issues and is generally pursued in the private sector.

In contrast, according to the report, Internet censors in the 40 countries surveyed did not filter in connection with intellectual property rights.

The research was funded by the John D. and Catherine T. MacArthur Foundation in Chicago.

In Iraq, researchers limited their testing to the civilian networks and did not include the network run by the U.S. military.

Earlier this week, officials with the U.S. Department of Defense announced plans to block a dozen Web sites. The military grid includes more than five million computers, which are now barred from sites like YouTube, MySpace and two popular Internet radio sites, Pandora.com and Live365.com.

The U.S. authorities said they had taken the step as a pre-emptive measure to prevent the sites from clogging the networks, although they said that had not happened yet.

from ZDnet.com/CNET News.com, 2007-May-16, by Stephen Shankland:

Experts say Microsoft's patent quest won't go far

Microsoft's accusation that the open-source software industry has infringed 235 Microsoft patents has spotlighted a difficult issue: how aggressively should a company police itself for patent violations?

Microsoft said it released the tally--though not the 235 specific patents--in an effort to bring open-source companies to the table to hammer out intellectual property licensing deals similar to the one struck by Linux seller Novell in 2006. But industry experts said the declaration's implicit demand--that companies with open-source software should figure out what Microsoft patents they're infringing and come to the negotiating table--is unrealistic at best.

In general, searching for potential software patent violations isn't practical, given the number, breadth and opacity of patents in the United States. Not only that, but it's at odds with Microsoft's own policy to wait for patent holders to get in touch with it if they think there's infringement.

In fact, searching for potential patent problems can actually leave a company financially exposed: if a lawsuit concludes a patent was infringed, a company or individual that knew about the potential infringement must pay triple the financial damages compared with an unknowing infringement.

"The fear of willfulness is so great that often firms instruct their engineers not to look at patents," said Matthew Schruers, senior counsel to a tech lobbying firm called the Computer and Communications Industry Association. Because of the willfulness issue, the expense of searching patents and the difficulty of actually understanding them, "It's gotten to the point where most software application developers cannot plausibly say they've conducted complete patent searches," he said. (The CCIA, although counting Microsoft among its clients, scorned its patent move on Monday as "very troubling.")

Though Microsoft has paid $1.4 billion in three years to license others' patents, the company indicated that it takes a more passive role when it comes to licensing others' patents.

"If a company believes we are using its intellectual property, they should come talk to us," the company said in a statement. It didn't respond Tuesday to questions about whether it has notified specific parties such as Red Hat or Linux kernel leader Linus Torvalds of any of the alleged infringements.

Torvalds defiant
Microsoft said the Linux kernel infringes 42 Microsoft patents, but Torvalds is among those who refuses to investigate whether he's violating any.

"There are several reasons why engineers should not read other people's patents, only their own. And it's not a 'hide your head in the sand' issue, it's a very practical issue of it being a waste of time," Torvalds said.

For one thing, developing technology without looking at patents lets a person honestly say they developed that technology independently, which helps show that the patent in question doesn't meet the requirement of a technology not being obvious, he said. And engineers aren't likely to comprehend patents in the first place: "Unless you have a patent attorney at your side, patent language usually makes no sense."

He derided Microsoft for spreading FUD (fear, uncertainty and doubt) rather than tackling the issue forthrightly. "If Microsoft were to actually tell people what patents they claim we violate, we could either laugh in their face and show prior art, or just show them to be obvious, or we could do things differently," he said.

Some, including David Jenkins, an intellectual property attorney with Eckert Seamans, believe in a more active patent-hunt approach. For example, Motorola should probably look for patent issues in Linux before shipping a Linux-powered mobile phone, he said.

But doing so isn't easy, and "Most people should not attempt to perform a search," he said.

"Finding a patent, especially a software patent, on the U.S. Patent and Trademark Office Web site is very difficult," Jenkins said. "Almost nobody calls everything the same thing...Either you use a (search) term so broad that you get a return of 1,000 patents, or if you narrow it down, it's likely you're going to miss a lot."

Jenkins' firm charges about $1,000 for a patent infringement search, but the prices go up in cases where a search yields more patents that must be scrutinized.

And even Jenkins could think of only a single instance when a client went back to refresh an existing search with up-to-date results. The frequency of checking "depends on how litigious the patent owner is going to be, and are they going to catch you," he said.

Another issue complicating Microsoft's case is the widespread belief that patent infringement is the rule rather than the exception. "People are infringing other people's patents all the time and don't pay for it," said Mark Radcliffe, an intellectual property attorney with DLA Piper.

"By sitting in my chair right now I'm probably violating somebody's patent," adds Matt Asay, vice president of business development for open-source document-management firm Alfresco and a competitor with Microsoft's SharePoint software. Asay, also a lawyer, doesn't want to violate Microsoft's intellectual property rights, but he, too, said Microsoft needs to take the initiative of describing what patents Alfresco might be violating. "Until we know--and IBM knows Red Hat knows--what can we do?"

Microsoft wouldn't say whether it believes any of its products infringe patents held by other companies with which it doesn't have a licensing agreement. It also wouldn't say whether it requires its own programmers to check if their software infringes others' patents, whether the company routinely checks to see if its products infringe or whether it ensures its products don't infringe before shipping them.

Horatio Gutierrez, Microsoft's vice president of licensing, said in an interview that the alleged open-source infringement is "not accidental." As evidence that the infringement is intentional, the company points to a 2006 speech by Richard Stallman, who single-handedly built much of the intellectual and legal framework of the free and open-source software movements.

Stallman didn't come close to a detailed analysis of where problems might lie or even a definitive admission, though. In it, Stallman refers to a 2004 study funded by Open Source Risk Management, a start-up selling insurance in open-source intellectual-property matters. "Two years ago, a thorough study found that the kernel Linux infringed 283 different software patents, and that's just in the U.S. Of course, by now the number is probably different and might be higher," Stallman said.

The quality factor
There's a wide gap between being accused of infringing a patent and being found in a civil lawsuit to actually infringe. And a recent Supreme Court decision means the gap likely will be getting wider.

In a unanimous April decision, the court sought to set a higher standard for weeding out patents for obvious technology. "Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility," the court said in its opinion, a decision that could make it easier to challenge patents' validity or harder to obtain them in the first place.

Microsoft believes its patents are solid. "Our patent portfolio scores very high on patent quality and science linkage," the company said, pointing to its second-place ranking among computing companies by the Patent Board, a patent analysis firm.

The court's decision was welcome news to those who complain about the quality of software patents. Improving patent quality to ensure patents are "truly novel, truly not obvious and truly useful" is one major part of the CCIA's patent reform agenda.

Mike Dillon, Sun Microsystems' top lawyer, said his company was "hit with two new patent troll cases" in April but is cautiously optimistic about the effects of the Supreme Court's move. He called spurious patent suits a "tax on innovation."

Those sentiments were echoed by Dillon's colleague, Sun Chief Technology Officer Greg Papadopoulos. "Are software patents useful? My answer is, mostly no. Copyright appears to be mostly better for maximizing innovation while giving individual copyright holders the ability to modulate compensation and derived works."

Torvalds was more direct. "The bulk of all patents are crap," he said. "Spending time reading them is stupid. It's up to the patent owner to do so, and to enforce them."

from the Wall Street Journal via OpinionJournal.com, 2007-May-3, by Daniel Henninger:

After Imus
No more witch burnings for PC offenses.

Don Imus, Bernard McGuirk, Trent Lott, Larry Summers, the Duke lacrosse team, Jimmy the Greek, the kid who yelled "water buffalo" at Penn, Howard Cosell, Jon Stewart, Chief Illiniwek, Jackie Mason and "South Park" all have in common only one thing: They have not been Politically Correct.

Some were brought down by it, and some have made a living from it. Today, there are people who even say that the satire on shows such as "South Park" or the "Daily Show" have made political correctness a harmless amusement. We have become so cool that we can simultaneously abide PC's merciless strictures against saying the wrong things about the right people even as we laugh at our subjugation to PC.

Despite the ironic mockery, political correctness still packs a punch. Say the wrong thing today and you can be gone tomorrow, your status as a top broadcaster, university president or politician obliterated. It happens in the small space of a sentence--defrocked, banished, gonzo. Outside a courtroom, I'm not aware of many other forces in American life that can do that.

Don Imus thought he had banked enough social capital to call black women "hos" for a laugh. Weirdly unplugged from the two-second tape delay in the back of his brain ("Don't do it"), he blurted something only black hip-hop singers get to say about black women.

In what for our time is the equivalent of burning witches, the broadcasting careers of Mr. Imus and of his producer Bernard McGuirk were then put to the torch. It took them about a week to die, but with Al Sharpton stoking the flames and the parsons of the press pouring on gasoline, they finally expired, allowing most of us to disperse back to jobs and careers whose abrupt termination generally requires a statutory felony rather than merely hurting someone's feelings.

Then last week the Imus incineration took an abrupt and unexpected turn: Russell Simmons, a famous hip-hop music promoter whose stature in recent years has swelled to cultural wise man, announced to the hip-hop "community" that it was time to retire the "h", "b" and "n" words. For the eight or nine Journal readers who don't listen to the rhymes of hip-hop, "b" rhymes with witch, and "n" rhymes with bigger.

---

Few would disagree that it would be a good thing if Don Imus became the last man in public to call a black woman a "ho." Few in the civilized world would miss hearing rappers rhyme women with "witch" and "bigger." And as a result, some would say, see, political correctness really does have its uses. It bans what nearly anyone would consider hateful, tasteless, insulting, abusive, disgusting language.

Right. That used to be known as good taste before the left delivered PC into the world. Over the years, political correctness has seemed to wax and wane, without ever disappearing. It was a relief when it offered a few laughs. What has never gone away, though, is the fact that ultimately political correctness is toxic.

Exhibit A is the Duke lacrosse team. Exhibit B is the annihilation of Harvard President Larry Summers. All the other exhibits are the forgotten professors, DJs and commentators whose jobs ended with a wrong phrase.

Duke was a particularly virulent strain of PC. It was breathtaking how fast the Duke incident broke into a politically correct scenario: privileged, women-baiting white males humiliate and assault a disadvantaged black female. Once rooted in the press, this "narrative" crushed the lives of the accused students, ruined the career of the team's coach and almost trumped the criminal justice system. For a falsity, that's pretty potent.

At a scholarly meeting two years ago, then-Harvard President Larry Summers suggested that women are underrepresented at the top of science and engineering because of what he described as the evidently more men than women who are "three and a half, four standard deviations above the mean." I recall back then reading the transcript of Mr. Summer's remarks, which is filled with caveats, obeisances, impenetrable prose and tangled logic. From this morass, it was possible to extract a big PC faux pas. But to think Mr. Summers was led from this turgid speech to the pyre, where his entire career as president of Harvard was immolated is, well, striking.

This is the way we live now: The only place where speech can occur without fear of job loss is on a cartoon show or in stand-up comedy. This means only the self-identified nuts can say what they want. Welcome to the asylum.

The left doesn't mind if comedians savage PC. So what? You get to laugh at the cartoon version but they use the real stuff to fire and eliminate whomever they wish. Thus do we all become their sheep.

---

Most people subscribe to the soft form of PC, which holds that the world will be a better place when we all have a little more equitable love in our hearts. Fine. But the hard form, played out at Duke and Harvard, is not about evening the odds; it's about exercising power, about reversing the odds. Thus, when a Larry Summers or Trent Lott trips up, the velvet glove of niceness comes off and the enemy is annihilated, abetted by a First Amendment media OK with executions for wrongful speech.

The result is that people sympathetic to PC's nominal goals are taken aback at its virulent results. Kind of like hip-hop. So in the spirit of Russell Simmons's overdue H-B-N ban, a proposed PC truce: Short of prosecutable acts, violations of PC should not lead to loss of livelihood. No more summary executions. No more firings. No more allowing the Al Sharptons to decide who makes a living and who doesn't. Don Imus is financially set, but not so the average college prof or schmo sports commentator. With this no-job-loss rule in place, Mr. Summers's enemies would have had to overthrow him on the merits of his presidency, not PC.

This won't solve all the depredations of political correctness, or its penchant for imposing lifelong stigma on offenders. But it would stop the zombies who serve as administrators, executives and advertisers from being instruments of career destruction. Sanctions or suspensions can be meted on a case-specific basis. "Nappy-headed hos" deserved at least a pistol-whipping.

Imus is hardly a casualty to mourn, but Duke was a PC travesty, which we shouldn't allow to slip down the memory hole. So was the Summers case. It's long past time to make political correctness politically correct.

Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Thursdays in the Journal and on OpinionJournal.com.

In this editorial, an editorialist at the San Francisco Chronicle (apparently the editor in chief or publisher) argues that Congress should give newspapers an anti-trust exemption so that they can organize amongst themselves to simultaneously lock all American newspapers behind subscription barriers. This would merge all of America's newspapers into a single entity with a governing committee. It would also end the capacity of ordinary Americans to read multiple points of view on current events of political significance, as they have for some time particularly on Google News. In the pre-Internet era, incumbency was usually a sufficient guarantee of unaccountability, and this proposal would go a long way to restoring that unaccountability. The author does not argue his position well, but this is likely not the last we'll hear of this.

from the San Francisco Chronicle, 2007-Mar-14, p.C1:

Pay-to-play is one way to help save newspapers

Viacom staked out a battle line between Old Media and New Media on Tuesday when it sued Google and its popular YouTube subsidiary for "massive intentional copyright infringement."

I'm no lawyer and can't speak to the merits of Viacom's case. But this dispute over online video clips strikes me as related to a problem much closer to home -- namely, how newspapers can survive in an age of free online content.

I'll come right out and say it: It's time for newspapers to stop giving away the store. We as an industry need to start charging for -- or at the very least controlling -- use of our products online.

"Maybe newspapers should follow Viacom's example," said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. "You need to go after all the people making money off your content."

I understand that this is an enormously tricky proposition and that if anyone knew how newspapers could profit from the Internet, they'd be, well, profiting from the Internet.

As it stands, most newspapers treat the Internet in general and their own Web sites in particular as loss leaders that will somehow contribute to the overall enterprise, even though, in most cases, they're little more than digital holes in the pocket.

"The Internet is a potentially fatal threat to newspapers," said Philip Meyer, a journalism professor at the University of North Carolina at Chapel Hill and author of "The Vanishing Newspaper: Saving Journalism in the Information Age."

He believes that only an elite handful of newspapers can get away with directly charging customers for online access to their content. The Wall Street Journal can do it because it's so specialized. The New York Times can charge for access to certain columnists because of their national stature.

If other newspapers want to enjoy this privilege, Meyer said, they'll need to invest in creation of the sort of unique content that readers (and Internet users) simply can't find anywhere else.

"Unfortunately, most newspapers are going in the opposite direction," he observed. "They're cutting back on staff and on the high-quality content that people might pay for."

The New York Times model of charging for select content would seem to be an approach that many local papers could emulate. Why couldn't The Chronicle, for example, charge readers for online access to Matier & Ross or Tim Goodman ... or me?

A crucial matter

Bill Keller, executive editor of the New York Times, told a reporter for his own newspaper in 2005 that it's crucial to develop other sources of revenue online.

"My main concern is that, however we distribute our work, we have to generate the money to pay for it," he said. "The advertising model looks appealing now, but do we want our future to depend on that single source of revenue? What happens if advertising goes flat? What happens when somebody develops software to filter out advertising -- TiVo for the Web?"

On the other hand, what does charging for select content really accomplish? Newspapers' online operations typically account for only about 5 percent of overall revenue. You might reduce the bleeding by charging for select content, but the reality is that you're still looking at a gaping fiscal wound.

Charge for access

The answer, I think, is that newspapers have to go further. They have to be prepared to charge for online access to their products just as they charge for print access.

But that won't be easy.

"I would not want to be the first newspaper to decide to charge," said Joel Brinkley, a journalism professor at Stanford University and former New York Times reporter. "Readers would run away. Advertisers would run away."

I agree. For this to work, the entire industry would have to come together and unite in saying that the era of the free online lunch is over.

Yet that raises another problem.

"It's illegal," said Jesse Markham, an antitrust lawyer at the San Francisco office of Morrison & Foerster who has represented media clients. "People would go to prison if they did this. It's price fixing -- a conspiracy to charge something where you weren't charging something before."

One way around this, he said, would be for individual newspapers to act on their own. But that runs the risk that some papers would end up charging for online content and others wouldn't. And the latter in turn would enjoy an influx of penny-pinching readers at the expense of rival publications.

The other way around the legal problem, Markham said, would be for the newspaper industry to apply to Congress for an exemption from antitrust laws.

But this is no less problematical, not least because of the symbiotic relationship between politicians and the press -- you don't want special treatment for a business that spends much of its time covering the very people who'd grant such a boon.

Life-or-death struggle

My thinking is that this is approaching a life-or-death struggle for newspapers, and an antitrust exemption may be the only way that the industry can smoothly make the transition to a digital future.

Put simply, we need to charge a fair price for our products, and we need to do so together.

Barring that, I agree with Kirtley at the University of Minnesota. If newspapers aren't going to collectively reach into the pockets of online readers, they should at least focus their attention on other Internet players that are profiting from newspapers' content.

First off, there are the aggregators, sites like the Drudge Report and Huffington Post that pull together stories from a wide array of media sources (and charge advertisers a fee to appear beside links to content that they had nothing to do with creating).

Just as Viacom is arguing that Google/YouTube shouldn't have unfettered access to clips from "The Daily Show," MTV and other copyrighted material, newspapers should insist that a licensing fee be paid for aggregators to have access to their content.

Then there are the blogs and other online venues that piggyback on the work of the "mainstream media" that they frequently deride as antiquated and obsolete.

Bloggers and Web sites are entitled to what is called fair use of copyrighted material. In other words, they can cite a paragraph or so of a newspaper story in commenting upon the work.

But I frequently see blogs that include entire stories or columns (my own included). Obviously a newspaper can't go after all such violators. But the big ones need to play by the rules.

Whatever else, newspapers must demonstrate that their online content has value.

"The students I teach really do believe that everything on the Internet is theirs for the taking," Kirtley said. "Young people have been conditioned to believe that they're entitled to this content."

It's time for newspapers to condition them otherwise.

from the Telegraph of London, 2007-Mar-23, by Bruno Waterfield:

'Political correctness is killing our freedoms'

Europe's citizens must be on their guard against political correctness and moralising politicians, says the European Commission President José Manuel Barroso in an interview with The Daily Telegraph.

The former Portuguese premier and centre-Right politician is concerned that freedom can be the loser in European culture wars over climate change, cheap air travel, Islam and free speech.

"We should be aware of people who, sometimes for good reasons, try to establish what I call private moral codes, for this or that, be it climate change, religious behaviour or any kind of social behaviour," he says.

Mr Barroso, a former Maoist student firebrand who fought against the Portuguese dictatorship in the early 1970s, still regards himself as a freedom fighter, even when the calls for bans or restrictions are in a worthy cause, such as global warming or respect for Muslim communities.

"I was 18 years old when a democratic revolution came to my country. Before we could not read the books or listen to the music we wanted," he says, speaking in his 13th-floor office in the Berlaymont building in Brussels. "I am radical on these matters. If there is an excess of freedom, it is better to have excess than less." Europe has been deeply divided over controversies surrounding Islam.

Violent protests on the continent, in the Middle East and in Asia followed the publication in a Danish newspaper of cartoons caricaturing the Prophet Mohammed and the Pope faced calls to apologise after a speech on theology and the origins of Islam sparked international controversy.

But Mr Barroso backs the right to offend.

"We have to show respect for all communities but the fundamental right of freedom of expression is for me more important than other collective rights," he says.

Growing up in the Portugal of the 1960s, Mr Barroso remembers being compelled to wear quasi-military uniforms. "I hate uniforms," he says.

His own personal experience of authoritarianism has made him wary both of those who are seeking to ban the wearing of the Islamic veil and Muslims who require girls to cover up. "I think the UK has the right approach. The veil should not be banned just as girls should not be forced to wear it.

"People should be able to choose what clothes they wear - as long as they don't go naked of course."

As the European Union prepares to celebrate the 50th anniversary of the founding Treaty of Rome, Mr Barroso insists that the rights of the individual, within the law, over moral strictures from either secular or religious communities, are sacred.

"Shall we respect the rights of a community to impose, for instance on a girl, a specific way of doing things or shall we give primacy to the rights of the girl, or it could be a boy, to choose?" he says.

"I have no doubts. In the Europe I want, the right to choose has primacy."

from SF Weekly, 2007-Jun-27, by David Downs:

Dark Payola Emerges
“Direct licensing” is the new threat to Webcasting's meritocracy of music

Economics over artistic merit is a recipe for payola — which is where labels pay radio stations to spin their music. It's illegal. But a new form of payola has been detected. It is the exact opposite of payola, but with all the same effects — forcing radio audiences to listen to the garbage labels want them to hear. It's dark payola.

The increased royalties set by the Copyright Royalty Board on March 2 came with a distinct catch. Webcasters are free to ink direct licensing deals with labels for a lower rate than the one set by the board. Direct licensing allows major labels to apply economic pressure to Webcasters who were formerly concerned with playing the best music.

If Net radio stations don't win their fight, playing whatever they want will become prohibitively expensive. Playing crap, however, won't be. Under the new rules it would be economically logical for cash-strapped Webcasters to take discounted rates to play music the labels want them to play. Instead of the labels paying the Webcasters, the Webcasters pay the labels less. Dark payola.

Evidence of this practice has already appeared with the launch of Slacker.com. The Internet radio startup has stated in the press that it made direct license deals with the majors that have saved it the hassle of paying higher royalties.

John Simson, executive director of the royalty collection agency SoundExchange, says dark payola won't be a problem, because radio stations can ink cheap deals with indie labels as well. But SomaFM Webcaster Rusty Hodge says that's unlikely, given the manpower it takes to handle licensing from thousands of indie music labels.

Hodge's business partner Elise Nordling works for a company practicing a form of dark payola on the indie side of things, though. Her daytime employer, the Independent Online Distribution Agency, offers free promotional MP3s from indie bands in its network. Pimping IODA MP3s on sites like SF Weekly's music blog has become easier than trying to get permissions from whatever band such sites choose. IODA's a good service, but it illustrates the point.

Furthermore, dark payola threatens terrestrial radio as well. On June 13, the Recording Industry Association of America launched a new push to raise royalty rates on terrestrial radio stations through the nascent MusicFirst Coalition. Coalition chief Mark Kadesh — former chief of staff for Sen. Dianne Feinstein — said he's not sure of the coalition's stance on direct licensing. However, coalition member Simson said direct licensing will occur.

Think you love terrestrial radio now? Wait till Britney Spears really is the cheapest thing to play.

from BusinessWeek.com, 2007-Apr-16, by Olga Kharif:

The Death of Web Radio?

On April 16, right in the midst of the NAB2007 broadcasters conference, the Copyright Royalty Board upheld its earlier decision to impose higher royalty rates on Web radio stations. The stations will have to cough up these royalty payments – 300% to 1,200% higher than the fees they are used to paying -- retroactively. Unless Congress gets involved, that will mean the death of many Web radio stations, whose revenues will fall short of these royalty payments.

But larger companies not currently thought of as broadcasters will suffer as well: Today, the CRB clarified that its decision applies not only to Web-based radio stations, but also to any company broadcasting music over cellular networks. That means that its decision can be applied very broadly. In effect, the CRB has imposed high royalties, payable to a company formed by music labels, on everyone from Mercora, which allows users to download its radio-playing software onto smartphones for listening to Webcasts via cellular, to music services powered by wireless carriers themselves. Until now, these carriers have negotiated for royalty rates with individual content owners directly. These business arrangements have not been disclosed, but there is a chance that the telcos' payments will now increase.

Now that the CRB decision affects not just the little guys – Webcasters – but also some of the telecom world's giants, that makes me more sure than ever that Congress will have to get involved before the decision goes into effect May 15. Remember, Congress got involved in figuring out what fair and reasonable rates were the last time the royalty rates were renegotiated. Now, there are enough small and large Webcasters out there – wireless and Web-based -- to claim legislators' attention. Already, today, a number of broadcasters kicked off SaveNetRadio.org grassroots campaign. I wouldn't be surprised if telcos join in this effort.

from save-internet-radio.com, 2007-Mar-2:

Save Internet Radio

If the RIAA and SoundExchange get their way, independent webcasting / Internet radio will soon cease to exist.

Why? Earlier today, the Copyright Royalty Board, the group overseeing statutory licensing for US-based internet radio stations, announced the new royalty rates for streaming radio performance rights. The board rejected the arguments made by webcasters and instead chose to adopt the proposal put forth by industry-backed SoundExchange, a royalty fee collection agency created by the RIAA.

The new rates are based on “performances” of songs. A “performance” is defined as one song being streamed to a single listener. In other words, a station with 1000 listeners is charged for 1000 performances of each song it broadcasts.

Further, the new rates, just announced today, are retroactive to 2006, and increase rapidly each year. The rates per performance are as follows:

$0.0008 in 2006
$0.0011 in 2007
$0.0014 in 2008
$0.0018 in 2009

At first glance, those seem like fairly small numbers: eight ten-thousandths of a dollar, eleven ten-thousandths of a dollar, and so on. When you actually do the math, however, you see the truth revealed. The average radio station plays 16 songs in an hour. Under this system, that would be equivalent to 16 performances.

0.0011 x 16 = 0.0176

Still a fairly small number - under two cents. But now assume this station has 1000 listeners. That means that, in one hour, the station would be billed for 16,000 performances.

0.0011 x 16000 = 17.60

That's $17.60 an hour. Now we're starting to see how expensive this truly is. Multiply that by 24 hours a day.

17.60 * 24 = 422.40

$422.40 a day. But there's 365 days in a year.

422.40 * 365 = 154176

$154,176 for the year in performance royalties alone for a station with 1000 listeners. And that's just for 2007: it gets even worse. In 2008, the cost rises to $193,536 for the year. In 2009, it goes up to $248,832. Even for a much smaller station, the royalties owed are huge.

Of course, these figures don't include the other set of rights that Internet radio stations are required to purchase, which must be licensed separately from an agency like SESAC or ASCAP, or the cost of bandwidth and server capacity. When you add all these costs together, you can easily see why nobody, save perhaps a megacorporation like AOL or Yahoo, could afford to pay these rates.

But wait - what's this? The new rates apply retroactively to the beginning of 2006. In other words, someone who has been happily (and legally) running their small internet radio station for the past few years is suddenly going to be hit with possibly hundreds of thousands of dollars in additional royalties owed. These bills could easily cause a small, independent broadcaster (and his family) to go bankrupt.

Meanwhile, over-the-air radio stations are still not required to pay one dime to the record industry for public performance rights from SoundExchange or an equivalent group. They only need to pay the far more reasonable fees of BMI, ASCAP, and/or SESAC. This reads like another tactic by the recording industry and corporate powers to exert control over anyone involved with music and an attempt to destroy independent broadcasting.

Whether you don't want to see your favorite internet radio station go off the air, whether you just hate the RIAA, whatever the reason: please, help us get this senseless, greedy policy designed to do nothing but line the pockets of the record industry overturned. Write to, or better yet call, your representative, your senators, and the Copyright Royalty Board. Tell your friends and family, write on your blog, digg this - help get the word out and help to Save Internet Radio!

If you are a webcaster, we want to hear from you! How will this affect your station? What do you plan on doing? Drop us a line at feedback@save-internet-radio.com. If you're someone involved with setting these rates, you're also welcome to contact us and explain why you think these rates are fair.

We'll be updating this site with more information as this progresses, so please check back and get involved!

from East Bay Express, 2007-Apr-18, by David Downs:

The Age of Dark Payola
Netcasters take it in the pooper from the Copyright Royalty Board. The FCC certifies the HD Radio scam.

Bay Area leading light SomaFM faces crippling debt and insolvency along with many of its Internet radio peers including Pandora and Live 365 this Spring. Late last March, the Copyright Royalty Board — three dudes in Washington — raised SomaFM's webcasting rates from $10,000 in 2005 to $600,000 for 2006 (applying retroactively).

The ruling is "fair," says the top honcho of SoundExchange, the royalty collection group lobbying for higher rates on behalf of the major labels and artists.

"Staggering," is more like it, says SomaFM founder Rusty Hodge. "We were expecting rates to go up 10, maybe 20 percent. It would be painful, but at least it wouldn't put us out of business."

SoundExchange says it needs top dollar for artists. "Webcasters have a number of opportunities to maximize revenue with ... banner ads, pop-ups, video pre-rolls, audio commercials," says John Simson, executive director of SoundExchange.

But Hodge says he isn't interested in annoying his listeners, and exposure means more than gold to the indie bands he streams. Webcasters will seek relief through the legislature, because Hodge doubts such relief will emerge during a possible re-hearing before the Copyright Royalty Board in the coming weeks.

Zooming out for a moment, the whole netcast debacle fits into a bigger picture that spells out the banal maxim: Fool me once, shame on you. Fool me twice, shame on me. Recording labels suffered two major burns in the 20th century: 1) Labels failed to negotiate terrestrial, on-air radio royalties and radio became a billion-dollar industry with their music; 2) Labels failed to negotiate royalties for music videos on MTV, and another empire cashed in.

Now, no one's building any more empires with their content, goddammit. Not Napster, Kazaa, Morpheus, LimeWire, or BitTorrent. Not YouTube (sued by Viacom), MySpace (sued by Universal), and definitely not a bunch of pissant throwbacks to college radio.

The majority of Americans who don't listen to netcasts should care about all this, because developments in that pond have ramifications for the on-air world, says Hodge. Terrestrial radio stations may soon face Internet radio's two sucky choices: 1) Pay SoundExchange through the nose for whatever the station wants to play, or 2) Save money by making direct, legal deals with record labels to play a label's free "Abomination of the Week." I'm looking directly at you, Korn Unplugged.

It's the opposite of payola but with all the effects, says Hodge. It's Dark Payola.

"They're going after the over-the-air broadcasters next," he says. "There's no doubt. And if you think media consolidation is bad now, wait till it's back to the old payola days."

At this point, you, the reader, are supposed to write congresspersons, sign petitions, and make bumpers stickers stating: "Down with Dark Payola!" There better be concerts, artists. Good ones. Plugged-in ones. Korn will not be invited.

Being a cynic means you get to be right a lot. So after expecting and then watching Internet radio webcasters strangled in their crib, there comes a certain dark glee in seeing Big Radio finally get its long-awaited approval for its horrid new HD system.

To recap what I wrote in March, HD Radio tops the list of corporate scams. The word "monopoly" fails to encompass this carny shill. Public broadcasting licenses are licenses to print money, and Big Radio's mints just got four times bigger with no givebacks to the public.

"A dream delayed" is what one FCC dissenting commissioner called the dream of a thousand little local radio stations doing their thing. New technology can boost the number of radio stations similar to TV's move to cable. If we stick to the metaphor, it's as if ABC, CBS, Fox, and NBC now owned all the cable channels too.

Cracks in my cynicism have come courtesy of more than dozen letters from all over the country. A lot of veteran broadcasters wrote in positing very cogent points. One pointed out: "All my peers in radio have been silenced, even though they don't want to go along." They say HD's flaws include super-bad distortion in the AM range and a bass-ackward interface courtesy of thirty-year-old technology.

Yet, these keen readers don't see HD and the billions of dollars that support it in Washington as a done deal. Public comments on HD are still open, they say, and people on the street seem to be voting "no" with their pocketbooks. "Big Radio covets our public airwaves," says Milspec390. "Our influence counts. Let's use it."

If by "influence," Milspec means "money," then yes, it does count. But most people are saving their influence right now for something more important to them ... like an iPhone.

from the Daily Kos, 2007-Apr-24, by DJ ProFusion:

Is the RIAA Pulling a Scam on the Music Industry?

The Internet radio game is rigged and the Recording Industry Association of America (RIAA) has rigged it in their favor.

There has been an understandable public outcry against the RIAA’s attempts to more than triple the sound recording copyright royalties on Internet radio. (See Save Internet Radio from Corporate Money Grab) One solution proposed by Webcasters is to just not play RIAA-member songs under the assumption that then they don’t have to pay the royalty to the RIAA’s collection body, SoundExchange; Webcasters would then just pay the independent artist the royalty.

This sounds fair and just because it is. However, the RIAA is not about being fair and just. The game is rigged and the RIAA has rigged it in their favor. The strategy of playing only non-RIAA songs won't work though because the RIAA has secured the right to collect royalties on all songs regardless of who controls the copyright. RIAA operates under the assumption that they will collect the royalties for the "sound recording copyright" and that the artists who own their own copyright will go to SoundExchange to collect at a later date.

Look at the information on SoundExchange.com (RIAA created SoundExchange) and see how it works. The RIAA has secured legal authority to administer a compulsory license that covers all recorded music.

"The recent U.S. Copyright Office ruling regarding webcasting designated SoundExchange to collect and distribute to all nonmembers as well as its members. The Librarian of Congress issued his decision with rates and terms to govern the compulsory license for webcasters (Internet-only radio) and simulcastors (retransmissions)." (http://soundexchange.com/faq.html#b4)

"SRCOs (sound recording copyright owners) are subject to a compulsory license for the use of their music...SoundExchange was established to administer the collection and distribution of royalties from such compulsory licenses taken by noninteractive streaming services that use satellite, cable or Internet methods of distribution."
(http://soundexchange.com/faq.html#a4)

SoundExchange (the RIAA) considers any digital performance of a song as falling under their compulsory license. If any artist records a song, SoundExchange has the right to collect royalties for its performance on Internet radio. Artists can offer to download their music for free, but they cannot offer their songs to Internet radio for free. (http://soundexchange.com/faq.html#a7)

So how it works is that SoundExchange collects money through compulsory royalties from Webcasters and holds onto the money. If a label or artist wants their share of the money, they must become a member of SoundExchange and pay a fee to collect their royalties (http://soundexchange.com/faq.html#b6). But, and this is a big "but," you only get royalties if you own the sound recording copyright. If you are signed to a major label, chances are you don’t. Even if you do own the copyright to your own recording of your own song, SoundExchange will collect Internet radio royalties for your song even if you don’t want them to do so.

Go to the SoundExchange site: http://plays.soundexchange.com/... and take a look at the hundreds of indie labels for whom SoundExchange claims they have collected royalties. Enter some of those label names on http://www.riaaradar.com/... and notice how few are actually members of the RIAA. Contact the label and ask if they are a member of RIAA and they almost certainly aren’t and may not even be aware that SoundExchange is collecting royalty fees on their music.

And what exactly is SoundExchange doing with the money they have collected for those hundreds of labels that must have thousands of songs???

from Investor's Business Daily, 2007-Jan-16:

Policing Speech

Media: It's a rather straightforward fact, yet some congressional Democrats apparently can't understand it: The Fairness Doctrine cannot coexist with the First Amendment protection of free speech.

The National Conference for Media Reform, held in Memphis, Tenn., over the weekend, didn't generate much news. But it should have. At that meeting, the Fairness Doctrine, dead since 1987, was resurrected in spirit. Democratic Rep. Dennis Kucinich of Ohio will eventually try to resurrect it in body.

Kucinich, who will head the new House Domestic Policy Subcommittee, made a guest appearance at the conference Friday night and promised to hold hearings on media "reform." He seems particularly set on restoring the Fairness Doctrine, saying in an interview: "Yes, absolutely, we're going to get that."

The Fairness Doctrine, which required broadcasters to give equal time to all sides of issues affecting the public, was adopted by the Federal Communications Commission in 1949. For almost four decades it choked free speech. That it was upheld by the Supreme Court in the 1969 Red Lion Broadcasting case was not surprising, given the "living Constitution" nonsense that perverted our judiciary then as well as now. Not until the Reagan administration's FCC dropped the rule in 1987 was speech free again on the airwaves.

Not coincidentally, talk radio, no longer shackled by the rule, began to flourish not long after.

With little exception, talk radio has been dominated by the right, which has made it a rich target of the left. The inevitable collapse of overhyped Air America, the left's attempt to balance out the right's command of the radio talk-show airwaves, will only make the left's envy even more wrathful. Look for Air America's embarrassing failure to become a rallying point for Kucinich and party colleagues who would exhume the Fairness Doctrine.

That the market has justly rejected talk radio that is filtered through a left-wing looking glass is meaningless to most Democrats. Many in the party, as the public will learn soon enough, are so convinced of the superiority of their positions that they are willing, even eager, to violate market preferences, disregard a basic liberty and force broadcasters to give them equal time.

Democrats should not complain about the right's success in talk radio; they have newspapers, network television and Hollywood to carry their water. In all fairness, the Democrats should just leave the media alone and let a free people make their own choices.

from IDG News Service via Macworld, 2007-Mar-6, by Peter Sayer:

France bans citizen journalists from reporting violence

The French Constitutional Council has approved a law that criminalizes the filming or broadcasting of acts of violence by people other than professional journalists. The law could lead to the imprisonment of eyewitnesses who film acts of police violence, or operators of Web sites publishing the images, one French civil liberties group warned on Tuesday.

The council chose an unfortunate anniversary to publish its decision approving the law, which came exactly 16 years after Los Angeles police officers beating Rodney King were filmed by amateur videographer George Holliday on the night of March 3, 1991. The officers' acquittal at the end on April 29, 1992 sparked riots in Los Angeles.

If Holliday were to film a similar scene of violence in France today, he could end up in prison as a result of the new law, said Pascal Cohet, a spokesman for French online civil liberties group Odebi. And anyone publishing such images could face up to five years in prison and a fine of €75,000 (US$98,537), potentially a harsher sentence than that for committing the violent act.

Senators and members of the National Assembly had asked the council to rule on the constitutionality of six articles of the Law relating to the prevention of delinquency. The articles dealt with information sharing by social workers, and reduced sentences for minors. The council recommended one minor change, to reconcile conflicting amendments voted in parliament. The law, proposed by Minister of the Interior Nicolas Sarkozy, is intended to clamp down on a wide range of public order offenses. During parliamentary debate of the law, government representatives said the offense of filming or distributing films of acts of violence targets the practice of “happy slapping,” in which a violent attack is filmed by an accomplice, typically with a camera phone, for the amusement of the attacker's friends.

The broad drafting of the law so as to criminalize the activities of citizen journalists unrelated to the perpetrators of violent acts is no accident, but rather a deliberate decision by the authorities, said Cohet. He is concerned that the law, and others still being debated, will lead to the creation of a parallel judicial system controlling the publication of information on the Internet.

The government has also proposed a certification system for Web sites, blog hosters, mobile-phone operators and Internet service providers, identifying them as government-approved sources of information if they adhere to certain rules. The journalists' organization Reporters Without Borders, which campaigns for a free press, has warned that such a system could lead to excessive self censorship as organizations worried about losing their certification suppress certain stories.

from TheInquirer.net, 2007-Feb-2:

Lords bemoan EU's regulation of 'TV-like' services

MEMBERS OF THE House of Lords have criticised the EU Commission's Audiovisual Media Services Directive for its attempt to introduce 'burdensome and inappropriate' regulation which they reckon could damage British industry.

The EU's proposals would see 'television-like' new media services come under the same European regulatory framework as traditional broadcasting.

Television-like services include new-fangled stuff that may appear on the Interweb.

While the European Commission argued that 'new' broadcasters are competing for audiences and advertising revenue with traditional broadcasters and so should be subject to the same rules, the Committee of Lords argues that is not the role of regulation to protect established broadcasters from new competition operating under different business models.

The Committee suggests "liberalising" the provisions on advertising for established broadcasters rather than seek to extend existing provisions to new media services.

The Lords reckon that the Directive would introduce a number of advertising restrictions on news and children's programming. They argue that these restrictions may have adverse consequences for the quality of "free to air" programming available, particularly children's programming.

The Committee says it is particularly concerned that the EU's proposals could force new media broadcasters to move their base of operations away from Europe and broadcast into the EU from a non-European base where they would be exempt from the Directive.

This, the say, would be particularly damaging to the UK that has a thriving new media industry.

Chairman of the Committee, Lord Freeman said the Commission's attempt to bring a host of non-traditional media operators under the same controls as traditional "was seriously misguided, and any future efforts to do the same would be a grave error."

"Such an attempt risks damaging the new media industry, which is a vibrant and important sector of the UK's economy," he croaked.

"Now most of our concerns on the proposed Directive rest on whether the Country of Origin principle, which we see as essential to the proper operation of single market legislation, will be maintained. We are firmly convinced that it should be," he added.

When it is published, the report, entitled Television Without Frontiers, House of Lords European Union Committee (Sub-Committee), will be available here.

from Bloomberg via the Taipei Times, 2007-Mar-22, p.11:

Honeywell sueing flat-screen firms over LCD patent

Honeywell International Inc has sued Acer Inc, AU Optronics Corp, Chunghwa Picture Tubes Ltd and three other flat-screen companies, claiming that they have infringed a US patent on a method of stopping liquid-crystal displays from flickering.

The complaint was filed on Monday in US federal court in Tyler, Texas. It also targets BenQ Corp, Renesas Technology Corp and Denmos Technology Inc.

"Honeywell has sustained damages and will continue to sustain damages in the future, including irreparable harm, unless" the companies are ordered to stop using the invention, Honeywell said in court papers.

Honeywell, based in Morris Township, New Jersey, also wants cash compensation.

The dispute relates to a method of making "flicker-free" displays, according to US Patent and Trademark Office data.

Sales of LCDs, the most common type of screens used in flat-panel televisions and computer monitors, totaled about US$69 billion last year, according to estimates by Texas-based researcher DisplaySearch.

Spokespersons at five of the six companies being sued said they have not been informed about the lawsuit.

Sharon Huang, a spokeswoman at Renesas Technology's Taipei office, said she was not authorized to comment on legal issues.

Renesas, based in Japan, makes semiconductor chips.

Hsinchu-based AU Optronics is the world's third-biggest liquid-crystal display maker behind South Korea's Samsung Electronics Co and LG.Philips LCD Co.

Honeywell is the world's largest maker of airplane controls.

from BoingBoing, 2007-Feb-12, by Cory Doctorow:

BBC techies talk DRM

Glyn sez, "The first ever BBC Backstage podcast kicked off in fine style talking about the BBC and its position on DRM and copyright. You can download and remix the MPeg3 file or the Ogg Vorbis file. Both are licensed under creative commons attribution. So as long as you credit backstage.bbc.co.uk, your good to go. In the next few days the BBC will make available a broadcast quality audio file and a video file for those who want to see the debate in action."

The podcast is both heartening and frustrating. The BBC had so much promise a few years ago, back when it was talking about delivering real, world-class public value to license payers by doing the hard work of clearing the footage in the archive and letting the public remix it. Now that vision has been reduced to a sham -- the BBC iPlayer, a steaming pile of DRM that restricts you to being a mere consumer of BBC programming, downloading it to your PC for a mere seven days.

For a minute there, the BBC seemed like it would enable a creative nation. Now it's joining the jerks in Hollywood who think that media exists to be passively swallowed by a legion of glassy eyed zombie audience members.

You can hear the disappointment in the visionaries at the BBC, the betrayal at being sold out by management. The BBC is forcing Britons to buy an American operating system -- Windows -- in order to watch British programming, made in Britain. The free and open GNU/Linux -- whose kernel is maintained in Britain -- can't be used for British TV, because of DRM.

The BBC claims it will find an "open standard" for DRM, but of course such a thing is totally, utterly, categorically impossible.

An open standard is one that anyone can implement. Anyone can improve on it, innovate on it, add features to it. The whole point of DRM is that it has to be implemented in a very specific way, to cripple certain features that users otherwise want. All DRMs have "Hook IP" -- something you have to license in order to implement them. A condition of the license is inevitably that you can't make the product user-modifiable. That means that it can't be open. It can only be implemented in crippled, restricted form.

The BBC claims that it can't clear its archives, but that is only to say that it can't do this without legislative assistance. One way to achieve that is to prospectively clear everything in its production pipeline, something that could have been done five years ago -- and that evidently isn't happening now.

The fact is that Britons are already downloading tons of TV from UKNova and elsewhere. They're risking criminal and civil penalties to get access to the programming that they are required to fund, that is being made on their behalf.

We've trained people to watch TV. You can't turn around after 70 years and say, you have to stop using the best new technology to get the best TV experience. The point of the BBC is to create compelling programming that educates, informs and entertains. At the end of the day, it's the same shows. Why should how you watch it make a difference?

The BBC exists to win this kind of fight in Britain. They exist to go where the private sector won't. For the BBC to throw its hands up and say, "We can't win this fight, we surrender, here we are, DRM forever, go buy some Microsoft," is nothing short of a betrayal. The BBC is dooming the Brits who fund it to being criminals. It's a bloody shame.

from EnterStageRight.com, 2006-Dec-18, by Paul Driessen:

Climate McCarthyism and eco-inquisitions

Two centuries years ago, Voltaire proclaimed, "I disapprove of what you say, but will defend to the death your right to say it." Today, our free speech traditions are under assault.

Colleges prohibit "offensive" or "politically incorrect" speech. Radical Islamists threaten to kill scholars, artists and even popes who "disrespect" the Prophet. And when we desperately need unfettered scientific debate, intolerant eco-activists have ushered in an era of climate McCarthyism and eco-Inquisitions.

Al Gore seeks to muzzle anyone who raises inconvenient truths about climate alarmism. Greenpeace wants "climate criminals" pilloried and silenced. Grist magazine wants "Nuremberg-style war crimes trials" for climate disaster skeptics, followed by hanging, one assumes, since burning at the stake would release greenhouse gases.

Climate catastrophist Ross Gelbspan told a DC audience: "Not only do journalists not have a responsibility to report what skeptical scientists have to say about global warming. They have a responsibility not to report what those scientists say." Reuters, Time, 60 Minutes and the Discovery Channel appear to have taken his views to heart. UK alarmist George Monbiot says the airlines contribute to climate change – so "every time someone dies as a result of floods in Bangladesh, an airline executive should be dragged out of his office and drowned." (Were his standard applied to environmental groups, their offices would be depopulated in days, since their continued opposition to DDT and other insecticides causes the deaths of a million African children annually from malaria.)

During a congressional hearing, Senator Barbara Boxer shamefully treated physician-scientist-author Michael Crichton like a child molester, for suggesting that claims about climate chaos should be reviewed by double-blind studies and evidentiary standards akin to what FDA uses for new drugs. And on October 27, Senators Olympia Snowe and Jay Rockefeller issued what the Wall Street Journal aptly called a "gag order" against ExxonMobil. "Its message: Start toeing the Senators' line on climate change, or else," said the Journal.

The Catholic Church's dogmatic Earth-centered-universe theology has been replaced by a far more intolerant Church of Gaia catechism of cataclysm. But the problem goes well beyond that, well beyond constitutional rights and traditions of open, robust debate being trampled by newspapers and politicians duty-bound to uphold them. It is, above all, an unprecedented power grab by activists, politicians and bureaucrats who want to be the final arbiters of every energy and economic decision – while reducing energy use and economic growth.

Yes, Earth's climate is changing – again, though far less than it has repeatedly throughout our planet's history. Yes, people are influencing our weather and climate – to some degree. But few scientists have joined astronomer James Hansen in saying that humans have replaced the sun and other natural forces as the primary cause, Climate Armageddon is nigh, and drastic action must be taken immediately.

Cataclysm theorists point to computer models. But models are not evidence. Neither are headlines, hype or Hollywood special effects – nor incessant claims that every storm, drought, heat wave or cold snap is due to fossil fuels. Moreover, even perfect compliance with the Kyoto Protocol would do virtually nothing to stop hypothetical human-induced climate change. And the true costs of imposing Draconian emission control measures would be astronomical.

Carbon taxes, carbon caps, greenhouse gas targets and timetables would send already high energy prices into the stratosphere, raise the cost of every consumer product and service, reduce profits, impair productivity, stifle innovation – and drive numerous jobs overseas, to countries where energy is still available and priced lower. Simply put, no juice – no jobs.

In the coming decade, according to energy analysts, Colorado alone will need 5,000 megawatts of new electrical generation; Texas, over 25,000; the USA, hundreds of thousands. Most will have to come from fossil fuels. Will policy makers enable or prevent us from meeting these needs? Will they try to curtail China and India's efforts to generate electricity and lift their people out of poverty?

If it takes 13,000 wind turbines (on 105,000 California acres) to generate the electrical output of one 500-mW gas-fired power plant, how many turbines will it take to produce 50,000 mW? How many scenic vistas will they despoil? How many birds and bats will they kill?

If we emphasize intermittent, unreliable wind and solar power, will utility companies be reduced to promising they can ensure 12 hours of power a day, as we fire up assembly lines or head into surgery? If utilities have to sequester CO2 at $40-50 a ton, will they follow Britain's lead, and tell parents who can no longer afford to heat their homes adequately: just send your children to bed with hats, mittens, sox – and bags of rice warmed in microwaves?

To reduce electricity demand, will Ebenezer Gore tell kids they can't have Sony Playstations or computers? Will he begin with his own grandchildren? Will he seek a ban on plasma televisions, which use five times the electricity of conventional TVs? Will he stop flying all over the planet, to lecture lesser mortals about climate apocalypse?

Will the Senate Inquisitors – and fear-mongering green organizations – now run their offices solely on whatever electricity they can get from wind and solar power? What will they tell families of elderly folks who die in summer heat waves, because they can't afford air conditioning – or AC has been banned as "polluting and unnecessary"?

How much will California really preserve our environment by having its future electricity generated by power plants sited in Montana, Idaho, Utah and the Dakotas – and sent to LA via 2000-mile-long transmission lines – so that its legislators can claim to have reduced Golden State carbon emissions?

How many Third World families will remain impoverished and threatened with death from lung and intestinal diseases, because eco-imperialist agitators, politicians and bureaucrats continue to pressure banks and companies not to build power plants in poor countries?

These are just a few of the inconvenient questions and truths that alarmists want silenced. That's why companies, legislators, scientists and citizens need to raise them, despite threats of repercussions.

Raising these issues – and defending open, robust, civil debate about them – is the essence of ethics, social responsibility, citizenship, and now courage. Our forebears risked their lives to speak the truth. Surely we can risk a little public browbeating from Senate neo-McCarthyites, to ensure that our nation is not stampeded into enacting state and federal laws that will be economically and ethically disastrous.

We do not face looming climate chaos. We have time to respond rationally and responsibly, evaluate competing claims, demand real science and evidence, devise sensible laws and policies, and develop new energy generation technologies that will meet growing demand for abundant, reliable, affordable electricity – while improving efficiency, reducing pollution, and protecting the health and economic vitality of families, companies and communities.

Let's hope the march toward totalitarian government ends, wisdom prevails, and we again place our faith in American optimism, creativity, innovation and true social responsibility. ESR

Paul Driessen is senior policy advisor for the Congress of Racial Equality and Committee For A Constructive Tomorrow, and author of Eco-Imperialism: Green power ’ Black death. He is one of 16 "climate criminals" named by Greenpeace at the 2005 climate conference in Montreal.

from People For Internet Responsibility, 2007-Jan-30, by Lauren Weinstein:

Memo From the Future: Why DRM is Doomed

Greetings. Historians looking back on the current battles over Digital Rights Management (DRM) will probably chuckle heartily when they review the bizarre and ultimately failed measures that were promulgated in attempts to control entertainment content during our era.

But we can still hope for a bit of their sympathy as well, since so many of the current DRM efforts are the work of very smart yet very desperate people, who mostly know in their hearts that the game is up, but still understandably wish to do everything they can to protect their content, franchises, and livelihoods.

One need only look at the utterly convoluted and almost Kafkaesque lengths that Microsoft's Vista and computer manufacturers are going through to try prevent the leakage of bits from "premium" content (e.g., hi-def versions of the "Gilligan's Island" box set), for us to recognize what can only be characterized as last gasp efforts.

Still, in the end these efforts will fail, and different business models will rise to take their places. Where demand for illicit copies exists, unencumbered bits will always find some way to escape from their bondage -- often through copies made by insiders within the production chains themselves, long before ostensibly "secure" versions ever reach consumer hands. The Internet guarantees that it only takes a single such "clean" illicit leaked copy to permeate the entire planet in short order, and for every watermarking or other control scheme deployed, hacker-provided countermeasures will quickly appear.

How this process will alter the entire ecosystem of creative talents and media is obviously not clear, but the change itself is inevitable. We need not like or approve of this course of events -- how we feel about it won't change the equation. We're all at the mercy of fundamental technological truths, especially in this case.

Interestingly, we don't even know how much financial loss can actually be attributed to this ongoing sea change, given the certain rise of other business models. We can't accurately determine how many illicit copies of music and movies really represent true lost sales. Many people collect available audio and video materials just to have them, but never would have bought them in the first place if they couldn't get them for free.

Evidence suggests that many of these same persons will willingly pay for legal copies when they perceive value-added content and fair pricing -- the robust sales of budget-priced DVD film compilations is a clear indicator of such potential.

A similar question permeated the world of phone phreaking decades ago. AT&T proclaimed millions in lost illicit phone calls revenue, but how many of those calls would really have been made if they had been charged? Few young phone phreaks really needed to hear the "speaking clock" in Sydney.

This isn't the first time that technological advancement has sent shivers through the body politic and its dominions.

The rise of the printing press initially was largely seen as a doomsday technology by then current powers. More recently, containerization caused upheavals throughout the shipping industry. Yet in so many of these cases, the affected entities found ways to profit from these new circumstances, even though major changes in their world views were typically necessary.

In the universe of the Internet and technology more generally, there are some battles that may well be winnable, especially when multidisciplinary in nature, but others that are doomed by the intrinsic nature of technological development. DRM appears to fall squarely into the latter category.

There are many detailed technical aspects to this story of course. These range from "fair use" arguments, to the apparent initial cracking of the new HD/Blu-Ray copy protection system, to whether or not DRM content "revocation" systems can actually be triggered without massive consumer backlashes -- and everything in between.

None of these particulars matter much. They will merely be transient footnotes to the big DRM picture when viewed from years hence. No matter how you slice, dice, or litigate the issue, DRM is going to be as dead as the dodo -- the "Edsel" of computing history.

The sooner we accept the fact that DRM will fail in the long run, and we choose to move cooperatively beyond DRM's artificial technological distortions to hardware, software, and the economy, the brighter the outlook will be for everyone concerned.

Perhaps those future historians will have a surprise coming.

from the Associated Press via the San Jose Mercury News, 2007-Feb-13, by Aoife White:

Court orders Google to pull Belgian news

BRUSSELS, Belgium - Google Inc. lost a copyright lawsuit Tuesday to Belgian newspapers that had demanded it remove headlines and links to articles posted on its news site without their permission.

The ruling, if it stands on appeal, could set a precedent for how Web search engines link to copyrighted material in the tumultuous arena of online news, according to the Belgian copyright group that launched the case.

Google said it would appeal, claiming its Google News service was "entirely legal" and the Belgian ruling did not set any precedent.

The Brussels Court of First Instance ruled that Mountain View, Calif.-based Google could not rely on exemptions, such as claiming "fair use," because it says it reviews press articles when it displays headlines, a few lines of text, photos and links to the original page.

"Google is reproducing and publishing works protected by copyright," it said. "Google cannot call on any exceptions set out by law relating to copyright or similar rights."

It decided in favor of Copiepresse, a copyright protection group representing 17 mostly French-language newspapers that complained the search engine's "cached" links offered free access to archived articles that the papers usually sell.

Copiepresse said the ruling was based on EU law and could trigger similar cases against Google in other nations, saying it had been in touch with copyright groups in Norway, Austria and Italy.

But Google said the judgment - which confirms an initial ruling in September - would not necessarily carry influence in other areas.

"This ruling does not mean that everywhere else or every other judge in any other country would rule in the same, even in Belgium," said Yoram Elkaim, legal counsel for Google News. "There are conflicting rulings on those issues which are fairly new and complicated."

U.S.-based technology lawyer Jonathan Band said the ruling was neither final - as it can be appealed to higher courts in Belgium - nor did it bear much weight since legal precedent is not as important in Continental European law.

"I'm sure other newspaper publishers are probably going to read the decision carefully but the most important factor is that it's not the ultimate ruling," he said.

Google said the court still had not settled the debate on what the ruling covered, claiming it only applied to Google News Belgium and google.be.

"In our view we have complied with the ruling fully since September," Elkaim said.

If the court agrees, Google would not have to pay retroactive daily fines of more than $32,000 for each day Google did not comply - far lower than an earlier judgment that threatened $1.3 million a day.

But Copiepresse lawyer Bernard Magrez claimed Google was still not complying fully with the ruling - saying it covered google.com and other versions. In the court agrees, fines could run as high as $4.3 million.

Copiepresse is still negotiating similar copyright issues with Yahoo Inc. and Microsoft Corp.'s MSN.

The group's secretary general, Margaret Boribon, said all companies that republish copyrighted works need to seek permission and pay compensation.

"Content made available by editors is quality content that is very expensive to produce and which has value ... and that value should be recognized," she told reporters.

Elkaim, however, ruled out paying to display content - Copiepresse's key demand - but said Google was willing to discuss terms with the Belgian newspapers. He also said the ruling doesn't change its basic way of doing business.

"It shouldn't preclude us from continuing to collaborate with news publishers who generally ... do want their content to be searchable so that more people can find their content on their Web site," he said. "The vast majority of publishers are happy to be included in Google News and actually we receive more complaints from publishers that are not included."

In the future, the court said it would be up to copyright owners to get in touch with Google to complain if the site was posting content that belonged to them. Google would then have 24 hours to withdraw the content or face a daily fine of $1,295.

Copiepresse first cried foul last February after Google launched a Belgian version of its Google News service in January 2006, displaying content from local newspapers found by its search engine.

A court ruling in September ordered Google to remove newspaper content from its news index under threat of daily fines. That decision came as a shock to Google, which had failed to appear at an earlier court hearing. The court later agreed to hear the case again to allow Google to put its side forward.

ON THE NET

http://www.google.be

http://www.copiepresse.be/

from Reuters via the New York Times, 2007-Feb-13:

MySpace Offers Tools to Block Video Clips

MySpace, the News Corporation's online social network, said yesterday that it was offering free software tools to let media companies block the uploading of unauthorized video clips, expanding on an earlier program to block unauthorized music.

MySpace, one of the Internet's most popular services, has licensed technology developed by a Silicon Valley company, Audible Magic, that helps identify the digital audio signature in a video file. Videos with audio tracks that match those in its database will be blocked, the company said.

The move comes a week after Viacom ordered the removal of more than 100,000 clips from the online video service YouTube, owned by Google, which it said had been slow to offer reliable ways to block unauthorized clips of top shows

For media companies, protecting copyrights while letting their programming proliferate across the Internet as a free marketing tool has been a difficult balancing act that has balkanized the media industry. Privately, some of Google's partners, which include most of the music labels, say they are holding out hope the company will be able to solve the issue.

Nowhere is that issue more apparent than at the News Corporation, which owns the 20th Century Fox movie and television studios and the Fox television network. The company subpoenaed YouTube in January to learn the identities of users who had uploaded episodes of the hit show “24” ahead of its TV broadcast and episodes of “The Simpsons.”

MySpace said it was already helping companies block the uploading of unauthorized audio files like songs and this was an expansion into video. It also said it was using this system to block both audio and video files owned by the Universal Music Group of Vivendi.

MySpace's move leapfrogs YouTube's efforts to help identify and block videos uploaded by users without copyright permission. YouTube does not screen for copyright-protected videos during the uploading process.

In a conference call after an earnings announcement on Jan. 31, Google's chief executive, Eric E. Schmidt, said the company would roll out such a system in stages soon, but gave no timeline.

YouTube had previously said similar technology would be made available at the end of last year.

from CNET News.com, 2007-Jan-19, by Candace Lombardi:

Belgian copyright group warns Yahoo
Copiepresse, which represents French- and German-language Belgian newspapers, adds No. 2 search engine to its list of offenders.

A group representing French- and German-language Belgian newspaper publishers has sent legal warnings to Yahoo about its display of archived news articles, the search company has confirmed.

Copiepresse, which has previously tussled with Google and Microsoft's MSN, has been leading the battle against search engines that publish news articles and photos via their news aggregators and search engine results. The group argues that the practice violates copyright laws, even if sites link to the publisher's Web site.

When it comes to Yahoo, Copiepresse objects to "the display of archived results" on Yahoo France's site, according to the No. 2 search engine, which said in an e-mailed statement that it "respects the copyright of content owners," and that it would respond "appropriately" to the Belgian organization.

Microsoft, since being contacted by Copiepresse, has been working out an agreement to remove certain links from its Live Search engine to French- and German-language Belgian newspapers.

In September, a court ordered Google to remove its Copiepresse results. Google removed the content from its Google.be and Google News sites, but it has filed an appeal, according to its official blog.

Copiepresse isn't the only news organization to take issue with search engines posting its content. The third-largest news agency in the world, Agence France-Presse, has sued Google for copyright violations.

from TheInquirer.net, 2006-Dec-19, by Nick Farrell:

Linking to copyrighted material could get you sued
It is all the same to Aussie judges

A LANDMARK ruling down under means that if people link to a page with copyrighted material they could be sued for piracy.

According to the Sydney Morning Herald, an Aussie Federal Court upheld a ruling against Stephen Cooper, who ran a site called pp3s4free.net for providing a search engine to enable the illegal downloading of music MP3s.

Also in the dock was his ISP, E-Talk, which had made no efforts to take the site down after it was requested to do so. The court decided that it was making money off the site by running advertisements.

Sabiene Heindl, general manager of Music Industry Piracy Investigations (MIPI) said the decision meant that anyone who stuck a link on MySpace or on their bogs could now expect a knock on the door from its briefs.

Dale Clapperton, vice-chairman of the non-profit organisation Electronic Frontiers Australia (EFA), warned that the ruling could have wider implications for search engines such as Google. Cooper was only doing the same thing as Google, except Google acts as a search engine for every type of file, while this site only acts as a search engine for MP3 files.

Heindl disagreed saying that Mp3s4free was different in the sense that it actually catalogued MP3 files that were infringing copyright material - Google doesn't do that.

Mind you, she added, action was being taken against Google in other jurisdictions, and her outfit was rubbing its paws expectantly hoping they would win that one.

We thought we might link to the Sydney Morning Herald piece but since it's the copyright of the Aussie publisher we didn't dare. You'll have to find it on Google.

from the Sydney Morning Herald, 2006-Dec-19, by Asher Moses:

Copyright ruling puts hyperlinking on notice

A court ruling has given the recording industry the green light to go after individuals who link to material from their websites, blogs or MySpace pages that is protected by copyright.

A full bench of the Federal Court yesterday upheld an earlier ruling that Stephen Cooper, the operator of mp3s4free.net, as well as the internet service provider that hosted the website, were guilty of authorising copyright infringement because they provided a search engine through which a user could illegally download MP3 files.

The website did not directly host any copyright-protected music, but the court held that simply providing links to the material effectively authorised copyright infringement.

"Mr Cooper had power to prevent the communication of copyright sound recordings to the public in Australia via his website," the judges said.

"He had that power because he was responsible for creating and maintaining his mp3s4free website."

Ms Sabiene Heindl, general manager of Music Industry Piracy Investigations (MIPI), said similar action could be taken against individuals who, like mp3s4free, used the internet to link to copyright-protected material.

The case against Mr Cooper was brought by 36 parites including leading recording companies like Universal Music, Warner Music, Festival Records, EMI and BMG.

Ms Heindl said that this could apply even if a person had embedded a copyright-infringing YouTube clip in their blog or MySpace page.

"We don't make any distinctions between big websites or small websites", she said, adding that MIPI would consider individual blogs on a "case-by-case basis as to whether it would be appropriate to take action".

Ms Heindl's message to Australians is clear: "If you are linking to copyrighted material in an unauthorised fashion, then you can be held liable for copyright infringement."

In yesterday's Cooper judgment, the ISP that hosted the website, E-Talk, was also found to be guilty of authorising copyright infringement.

The court found that E-Talk profited from the copyright infringement of mp3s4free.net's users through advertisements on the website and took no efforts to take the site down.

"E-Talk countenanced the infringing downloading by internet users who visited the website that it hosted," the court held.

"The fact is that E-Talk could have prevented the infringements that actually occurred."

Dale Clapperton, vice-chairman of the non-profit organisation Electronic Frontiers Australia (EFA), explained the ruling as follows: "If you give someone permission to do something that infringes copyright, that in itself is infringement as if you'd done it yourself. Even if you don't do the infringing act yourself, if you more or less condone someone else doing it, that's an infringing act."

Mr Clapperton added that this ruling could have wider implications for general search engines such as Google.

"What Cooper was doing is basically the exact same thing that Google does, except Google acts as a search engine for every type of file, while this site only acts as a search engine for MP3 files," he said.

But Ms Heindl said MIPI would not be going after Google in the same way it sued mp3s4free.net.

"Mp3s4free was different in the sense that it actually catalogued MP3 files that were infringing copyright material - Google doesn't do that," she said.

"There is, however, action that is being taken against Google in other jurisdictions, and we're awaiting that eagerly."

The full judgement can be found here.

from MacNewsWorld.com, 2007-Jan-15, by Erika Morphy:

Apple's Lawyers Target iPhone Copycats

Although Apple's iPhone won't hit the stores for a few months, some eager fans already have smartphones that look exactly like the user interface CEO Steve Jobs showed the world last week. Apple is taking action against any firm producing iPhone "skins." The company sent a letter to one such firm, MoDaCo, claiming that the iPhone icons and screenshot are copyrighted by Apple.

Apple's Latest News about Apple iPhone may be six months away from its general release, but some eager fans already have smartphones that look just like the user interface (UI) CEO Steve Jobs unveiled last week at the Macworld Conference & Expo.

At least one company, MoDaCo, has developed a screen shot of the UI that users can download and install as a "skin" on their PocketPC device. Apple, unsurprisingly, has not looked kindly upon these endeavors and is threatening legal action.

MoDaCo has displayed on its Web site a letter it received from Apple's legal team.

It reads, "While we appreciate your interest in the iPhone, the icons and screen shot displayed on your Web site are copyrighted by Apple, and copyright law explicitly prohibits unauthorized display and distribution of copyrighted works."

The letter continues, "Apple therefore demands that you remove this screen shot from your Web site and refrain from facilitating the further dissemination of Apple's copyrighted material by removing the link to http://forum.xda-developers.com, where said icons and screenshot are being distributed."

Red Cape Tactics

What MoDaCo did appears to be the equivalent of waving a bright red cape in front of an angry bull. Apple is notoriously protective of its brand and related patents and trademarks; however, its rights to the iPhone name is a matter of dispute as Cisco Systems Latest News about Cisco Systems also claims ownership to the trademark.

In September 2006, for instance, Apple filed the word "pod" for trademark protection with the U.S. Patent and Trademark Office -- separate from its use in connection to iPod.

Apple also apparently is seeking to claim rights to the word "podcast" in certain commercial situations. Last year, the company sent a cease-and-desist letter to Podcast Ready, a company that offers downloadable podcasts along with a software application that supports many portable devices, including the iPod.

Is There Originality?

It is unclear whether Apple's position regarding the so-called "iSkins" is the correct one under patent and trademark law.

The icon for Apple's "clock" depicts a clock face and is simply not protectable, notes Tristram Fall, a partner with the corporate and the intellectual property practice groups at Fox Rothschild.

"It lacks even a minimal level of originality, something that's required for copyright protection," he told MacNewsWorld. "Other icons, such as that for 'Internet' look to be more original and, if so, could be protectable."

Fall added, "On the other hand, the skin as a whole could be protectable in theory if the selection of icons used by Apple is original in some way."

It is more than likely that the UI is patentable, Steve Rubin, an intellectual property lawyer at WolfBlock, told MacNewsWorld.

"The beauty of many of Apple's products is the user interface. I've seen media touting Steve Jobs and his UI team as making everything much more simple, easy and fun to use. As a consequence, such user interfaces can, and likely are, also protected by patent," he noted.

Patent or Copyright?

Rubin said this issue highlights one of the major differences between patent and copyright law: Copyright protection "subsists."[[

"So, if there is an original icon, Apple has copyright protection as of its creation. Apple would have to register the work in the copyright office to file suit but it's their right and can keep others from using that particular icon," he stated.

For patent protection, by contrast, Apple has to file for a patent with the Patent and Trademark Office, Rubin continued.

"In the software arts -- and a new UI would be considered software -- such an application could take five years to process because of backlog in the Patent Office," he noted. "If Apple only recently came up with the new UI, it could be years before the patent issues and they can enforce [it]. This is a major problem in industries where the technology is only hot for a few years. The whole relevant time could be spent waiting for a patent to issue."

It's highly likely that the patent application will publish before it issues, Rubin concluded.

"Once an application is published, Apple can inform its competitors of the publication but, unless the patent eventually issues in substantially the same way -- and there is no real guidance on what that language means yet -- Apple has no rights until the patent actually issue," he said.

from Bloomberg News via the Seattle Post-Intelligencer, 2007-Jan-3:

Apple, Google, Napster sued over patent
Intertainer claims use of technology without its OK

Apple Computer Inc., Google Inc. and Napster Inc. were sued by online movie distributor Intertainer Inc. and accused of infringing a patent on a way to distribute digital entertainment over the Internet.

Apple, maker of the iPod music player; Google, the most-used Internet search engine; and Napster, a seller of songs online, are using the patented technology without permission, Intertainer said in a complaint Friday in federal court in Marshall, Texas.

Intertainer, claiming it has suffered irreparable harm, asked the court for cash compensation and an order to prevent the companies from using its technology.

Intertainer said the companies' infringement was "willful and deliberate," which, if proved, would allow a judge to as much as triple any damages awarded.

The patent, covering a "digital entertainment service platform," was issued in August 2005, court papers show.

Apple declined to comment on pending litigation, Steve Dowling, a spokesman for the Cupertino, Calif.-based company, said Tuesday.

"We have not been served with the complaint," said Ricardo Reyes, a spokesman for Mountain view, Calif.-based Google.

Dana Harris, a spokeswoman for Los Angeles-based Napster, declined to comment.

Culver City, Calif.-based Intertainer's investors include Microsoft Corp. and Intel Corp.

from the Seattle Times, 2007-Jan-3, by Tricia Duryee:

Patent suit filed against cellphone makers over Bluetooth

Research conducted by a University of Washington undergraduate more than a decade ago has become the subject of a lawsuit filed against some of the largest cellphone manufacturers in the world.

The suit claims that consumer electronics giant Matsushita and its Panasonic unit, as well as Samsung and Nokia, are infringing on four patents sold under the "Bluetooth" name.

Washington Research Foundation (WRF), which assists Washington universities with commercializing technology, filed the suit Dec. 21 in U.S. District Court for the Western District of Washington.

Bluetooth technology is used in wireless headsets, or as a means of exchanging data between mobile phones, PCs and other devices without using cables. A blinking blue light is the product's signature. As of November, one billion Bluetooth devices had been shipped, according to the Bluetooth Special Interest Group (SIG), a trade association.

WRF is asking for a court order barring the sale of products that use the patented technology and for monetary damages to be determined by a jury.

The defendants in the case did not reply to requests seeking comment.

The patents trace back to Ed Suominen, a student who was studying radio design at the University of Washington before receiving a bachelor's degree in electrical engineering in 1995.

"That's what's unusual about it," said John Reagh, WRF's manager of business development and legal affairs. "We manage a number of patents for the university, and I can't think of another one where the inventor wasn't a Ph.D."

Suominen, who now lives in Eastern Washington and is a technical adviser in the case, gave the rights to the patents to the UW, which, in turn, exclusively licensed the patents to the foundation to manage.

Reagh said the foundation has been keeping a close eye on the patents, and when it became apparent that Bluetooth was one of the obvious applications for it, it started to study the industry's players.

He said a number of the Bluetooth chipset manufacturers appeared to be infringing on the patent. One company, Irvine, Calif.-based Broadcom, agreed to license the technology. Another company CSR of Cambridge, United Kingdom, did not, Reagh said.

Matsushita, Samsung and Nokia are some of CSR's largest customers, said WRF attorney Steven Lisa. Instead of suing CSR, he said the organization decided to act against the handset makers because the chipset manufacturer may not know which chips are headed to the United States, where the patent is enforceable, but the device-maker would.

Bluetooth is a standard developed by a number of companies in the mobile industry and overseen by the Bellevue-based Bluetooth SIG. There are many patents surrounding the technology; the ones held by WRF represent only four.

"You can find a way to do it [use Bluetooth] that doesn't infringe on the patents, or you can buy it from Broadcom. That's why WRF is not going to sit back and let it go without it being addressed," Lisa said.

If WRF is awarded damages, the money will go to the University of Washington and a portion will go to Suominen, Reagh said.

from the Guardian of London, 2006-Dec-12, by Bobbie Johnson:

German gamers face jail for acts of virtual violence

Players and creators of video games could face imprisonment for acts of virtual violence under draft legislation being drawn up by two of Germany's state governments.

Politicians in Bavaria and Lower Saxony have proposed a new offence that will punish "cruel violence on humans or human-looking characters" inside games. Early drafts suggest that infringers should face fines or up to 12 months' jail for promoting or enacting in-game violence.

The scheme comes in response to a shooting last month in the town of Emsdetten on the Dutch border, where Sebastian Bosse, an 18-year-old games fan, stormed into his former school and wounded 37 people before killing himself.

The incident caused outrage and the bill's sponsor, the Bavarian interior minister Günther Beckstein, claimed there was a direct connection between Bosse's actions and his love of the game Counter Strike. "It is absolutely beyond any doubt that such killer games desensitise unstable characters and can have a stimulating effect," he said.

Germany already has drastic censorship laws for games, and industry officials are preparing organised protests against the proposals. Research has yet to show a link between violence in video games and violent acts in the real world.

from ComputerWorld.com, 2006-Nov-16, by Eric Lai:

Ballmer: Linux users owe Microsoft

In comments confirming the open-source community's suspicions, Microsoft Corp. CEO Steve Ballmer today declared his belief that the Linux operating system infringes on Microsoft's intellectual property.

In a question-and-answer session after his keynote speech at the Professional Association for SQL Server (PASS) conference in Seattle, Ballmer said Microsoft was motivated to sign a deal with SUSE Linux distributor Novell Inc. earlier this month because Linux "uses our intellectual property" and Microsoft wanted to "get the appropriate economic return for our shareholders from our innovation."

The Nov. 2 deal involves an agreement by Novell and Microsoft to boost the interoperability of their competing software products. It also calls for Microsoft to pay Novell $440 million for coupons entitling users to a year's worth of maintenance and support on SUSE Linux to its customers. In addition, Microsoft agreed to recommend SUSE software for Windows users looking to use Linux as well.

A key element of the agreement now appears to be Novell's $40 million payment to Microsoft in exchange for the latter company's pledge not to sue SUSE Linux users over possible patent violations. Also protected are individuals and noncommercial open-source developers who create code and contribute to the SUSE Linux distribution, as well as developers who are paid to create code that goes into the distribution.

Many open-source advocates criticized the deal, nevertheless. They argued that it was tantamount to an admission of patent violations by a key Linux supporter that bolstered Microsoft's case if it decided press its patent claims.

At the time, Microsoft officials, including Ballmer, were mum on whether the Linux kernel, which is governed by the General Public License and takes contributions from programmers all around the world, violated Microsoft's patents.

Ballmer was more open today.

"Novell pays us some money for the right to tell customers that anybody who uses SUSE Linux is appropriately covered," Ballmer said. This "is important to us, because [otherwise] we believe every Linux customer basically has an undisclosed balance-sheet liability."

"My reaction is that so far, what he [Ballmer] said is just more FUD [fear, uncertainty and doubt]," said Pamela Jones, editor of the Groklaw.net blog, which tracks legal issues in the open-source community. "Let him sue if he thinks he has a valid claim, and we'll see how well his customers like it."

Officials at Red Hat Inc., the leading Linux distributor, also dismissed Ballmer's comments. "We do not believe there is a need for or basis for the type of relationship defined in the Microsoft/Novell announcement," said Mark Webbink, deputy general counsel.

Red Hat has called Microsoft's legal threat a looming "innovation tax." It also said that it can protect its customers against patent claims.

Jones noted that after the Nov. 2 deal was announced, Novell said on its Web site that "the agreement had nothing to do with any known infringement. So which is true?"

Jones also challenged Ballmer to "put his money where his mouth is" and detail exactly what part of the Linux kernel source code allegedly infringes upon Microsoft patents, so that "folks will strip out the code and work around it or prove his patent invalid."

Ballmer did not provide details during his comments today. But he was adamant that Linux users, apart from those using SUSE, are taking advantage of Microsoft innovation, and that someone -- either Linux vendors or users -- would eventually have to pay up.

"Only customers that use SUSE have paid properly for intellectual property from Microsoft," he said. "We are willing to do a deal with Red Hat and other Linux distributors." The deal with SUSE Linux "is not exclusive," Ballmer added.

Robert McMillan, of the IDG News Service, contributed to this report.

from TheInquirer.net, 2006-Nov-23, by Simon Burns:

Intel orders rival to stop making CPUs
Patent pressure wielded, sources claim

Taiwan -- GIANT CPU maker Intel is pressuring smaller rival Via Technologies to exit the CPU market, industry sources in Taiwan claim.

In exchange, Intel will allow Via to continue making PC chipsets which use Intel's patented technology, say the sources at PC mainboard manufacturers, who do not wish to be named.

Intel and Via offices had not replied to a request for comment by the end of business hours in Taipei. The two companies typically will not comment on negotiations while they are in progress.

Via CEO Wen-chi ChenVia earns the bulk of its revenue from chipsets, but its CPUs are generating growing profits. The tiny, cheap CPUs have increasingly been adopted by designers of products like handheld PCs, low-cost notebooks, media servers and other applications where low cost, noise, heat and power consumption are strong selling points. Via's CPUs have begun to take orders from Intel in these niche markets. Via has recorded operating profits of $22.5 million in the first nine months of the year, compared to an $18 million loss last year.

Over the past decade, Via has endured an increasingly bruising battle with Intel over allegations that the smaller firm has illegally used Intel's patented technology in its chipsets. The patents cover details such as the timing of electronic signals that the chipset uses to communicate with the CPU. Intel's legal pressure has had a chilling effect on Via's relationships with the mainboard and PC makers who buy its chipsets, and Via is generally believed to have lost substantial chipset market share as a result of this.

In April 2003, Intel granted Via a four-year licence to use the disputed chipset technology. Although that deal apparently expires next year, Via contends that it is actually effective until the end of March 2008, recent press reports say. When the licensing deal does end, however, it appears Via will no longer be able to make the chipsets that generate the larger part of its revenue.

The suggestion that Via stop making CPUs in exchange for permission to make Intel-compatible chipsets has emerged as part of the ongoing negotiations over an extension of this licensing deal, analysts and other sources say.

Via recently announced a major reorganisation, with CPU and chipset operations now handled by separate business groups. This move would make it easier for Via to spin off the CPU unit as a separate company, although it has announced no plans to do so, and products which combine the CPU and chipset in a single chip might complicate such a move. Via founder and CEO Chen Wenchi now heads the new CPU business group. Ex-Intel employee Chen is generally seen as one of the key driving forces behind Via's success.

Via's revenue so far this year is 32 per cent higher than 2005. The company reported sales of $540m over the first 9 months of the year. However, revenues remain well below a peak of almost $1bn reached six years ago when Via held a larger share of the chipset market.

Notable products based on Via's CPUs include the Samsung Q1P and TabletKiosk EO Ultra-Mobile PCs (UMPCs), a range of thin clients from Hitachi, and a notebook PC from Via's sister company Everex which is described as the “world's most energy efficient notebook”. Another sister company, High-tech Computer (HTC), is also rumoured to be developing a second-generation UMPC which may use a Via CPU.

from ArsTechnica.com, 2007-Jan-15, by Jeremy Reimer:

First pirated HD DVD movie hits BitTorrent

The pirates of the world have fired another salvo in their ongoing war with copy protection schemes with the first release of the first full-resolution rip of an HD DVD movie on BitTorrent. The movie, Serenity, was made available as a .EVO file and is playable on most DVD playback software packages such as PowerDVD. The file was encoded in MPEG-4 VC-1 and the resulting file size was a hefty 19.6 GB.

This release follows the announcement, less than a month ago, that the copy protection on HD DVD had been bypassed by an anonymous programmer known only as Muslix64. The open-source program to implement this was called BackupHDDVD and was released in a manner designed to put the onus of cracking on the user, not the software. To extract an unencrypted copy of the HD DVD source material required obtaining that disc's volume or title key separately, which the software did not do. However, a key was later released on the Internet, and a method for extracting further keys is allegedly available as well.

Now that the genie is out of the lamp, so to speak, what will the reaction be from the content industry? CyberLink, the makers of PowerDVD playback software, have already stated that the title keys were not obtained through their software, although this has yet to be conclusively proven. As for the content providers themselves, they have already said that they reserve the right to invalidate known pirated keys in the future. But to be of any use, they'll first need to determine which software application is responsible for giving up the volume keys. If it is something like PowerDVD, future titles can require that the user upgrade their software in order to play discs—this can be made to happen automatically when new discs are first inserted.

Muslix64 and others involved in BackupHDDVD are deliberately not exposing the actual method by which the keys have been obtained. This is partly to protect themselves from legal repercussions, but also to ensure that whatever "hole" that is being exploited remains unpatched. In the ongoing war between the pirates and the content providers, the pirates appear to be winning, but who knows who will get caught in the crossfire?

from the Associated Press, 2006-Oct-27:

Peer-To-Peer Charges Net Prison Term

ABINGDON, Va. -- A network administrator for a peer-to-peer Internet file-sharing system has been sentenced to five months in prison for copyright infringement.

Grant T. Stanley, 23, was also given five months of home detention, three years of supervised probation and a $3,000 fine for his role in the Elite Torrents service, which used a sharing technology known as BitTorrent. Stanley, who had pleaded guilty to copyright-related charges, was sentenced Oct. 17.

Stanley is one of three people convicted through Operation D-Elite, a federal crackdown on suppliers of pirated works to Elite Torrents, which agents shut down in May 2005.

At one time, the Elite Torrents network had more than 133,000 members and allegedly facilitated the illegal distribution of more than 2 million copies of movies, software, music and games. Federal officials said "Star Wars: Episode III - Revenge of the Sith" was available through Elite Torrents six hours before it even debuted in theaters.

"We hope this case sends the message that cyberspace will not provide a shield of anonymity for those who choose to break our copyright laws," U.S. Attorney John Brownlee said in a statement.

from ArsTechnica.com, 2007-Jan-3, by Eric Bangeman:

RIAA fights to keep wholesale pricing secret

A proposed order in a file-sharing lawsuit would force the recording industry to divulge closely-held details of their wholesale pricing arrangements. UMG v. Lindor is one of the highest-profile file-sharing cases in the news today, due in no small part to the efforts of Marie Lindor's attorney Ray Beckerman, who maintains the Recording Industry vs The People Blog along with Ty Rogers.

Lindor, like hundreds of others, was sued by the RIAA after a John Doe lawsuit resulted in her ISP turning over information to the record labels tying an IP address allegedly used for illegal downloading to her. Lindor has mounted a vigorous defense against the charges rather than settling with the RIAA as a large number of other defendants have.

The record labels are strenuously opposing Lindor's attempts to gain access to the pricing information. They have argued that it shouldn't be divulged, and if it is, it should only be done so under a protective order that would keep the data highly confidential. The RIAA regards the wholesale price per song—widely believed to be about 70¢ per track—as a trade secret.

The pricing data really may not be all that secret. Late in 2005, New York Attorney General Eliot Spitzer launched an investigation into price fixing by the record labels, alleging collusion between the major labels in their dealings with the online music industry. At issue are "most favored nation" clauses that require a distributor to guarantee a record label the best possible rate. Here's how it works: if Apple signs a deal with UMG for X¢ per track and later agrees to pay Sony BMG Y¢ per track, then Apple will also have to pay UMG Y¢ track, assuming X < Y.

Beckerman argues in a letter to the judge that the only reason the labels want to keep this information confidential is to "serve their strategic objectives for other cases," which he says does not rise to the legal threshold necessary for a protective order. The proposed order would force the labels to turn over contracts with their 12 largest customers. Most details—such as the identities of the parties—would be kept confidential, but pricing information and volume would not.

The pricing information could be crucial for Lindor as she makes the argument that the damages sought by the RIAA are excessive. In this and other cases, the labels are seeking statutory damages of $750 per song shared. Lindor argues that the actual damages suffered by the RIAA are in line with the wholesale price per song, and if that is indeed the case, damages should be capped accordingly—between $2.80 and $7.00 per song—if infringement is proven.

from the International Herald Tribune, 2006-Oct-19, by Floyd Norris:

Patent law is getting tax crazy

As the American tax law gets more and more complicated, lawyers have come up with one more way to make life difficult for taxpayers: Now you may face a patent infringement suit if you use a tax strategy that someone else thought of first.

"I can't even imagine what it will be like in 5 or 10 years," said Dennis Drabkin, a tax lawyer with Jones Day in Dallas, "if anytime a lawyer or accountant gives tax advice, they have to find out if there is a patent on this." He notes that researching patents, and then licensing them, would just make tax compliance more costly.

Drabkin is chairman of an American Bar Association task force on the issue. He said that at one conference where tax strategies were discussed, participants later got a letter warning that using one idea mentioned would be in violation of a patent.

Why would Congress pass a law allowing such a thing? The answer is that it did not. But a U.S. appeals court ruled in 1998 that business methods could be patented, and since then the U.S. Patent and Trademark Office has issued 50 tax- strategy patents, with many more pending.

There is even one case pending in U.S. court in Connecticut, in which an organization called the Tax Strategies Group complains that John Rowe, the chairman and former chief executive of Aetna, infringed on its patent by using a certain type of trust to minimize taxes on profits from stock options. The group wants Rowe to be barred from using that strategy unless he buys a license from it.

To patent lawyers, all this makes some sense. Others might see it as an example of judicial absurdity.

But if it is legal, the mind boggles at the possibilities. Could I get a patent on taking a deduction for dependents, so that every parent in America would have to pay a royalty to me to take advantage of the tax law passed by Congress? I presume the patent office would find that obvious, and thus not patentable, but there are plenty of slightly more complicated strategies that might be patentable, particularly considering the fact that patent examiners may not be tax experts.

Indeed, Cheryl Hader, a partner in Ropes & Gray representing Rowe, argues that a strategy she uses is clearly authorized by the tax law and that no patent should have been granted.

One can imagine lawyers and accountants rushing to the patent office as soon as a new tax law is passed, seeking to claim credit for dreaming up ideas that were made possible by the new tax law. Lobbyists who get tax breaks inserted into such bills would be in a preferred position to win the race to patent them.

In an article in Legal Times this week, Paul Devinsky, John Fuisz and Thomas Sykes, who are lawyers with McDermott, Will & Emery, suggested that a company might figure out a tax strategy that would save it a lot of money and then patent it. Then the company could refuse to license the patent to its competitors, thus raising their cost of doing business.

Tax patents, the lawyers wrote, amount to "government-issued barbed wire" to keep some taxpayers from getting equal treatment under the tax code.

In an ideal world, Congress might pass tax laws so simple that clever strategies would be impossible and tax lawyers would need to find other employment. But until that happens, it would seem obvious that Congress would want to assure that tax benefits are not walled off from some.

After all, as Devinsky and his colleagues wrote, "the successful patenting of tax strategies now limits Congress's ability to shape economic policy through legislation and places that power in the hand of individual patent holders." But in Washington, such things are seldom simple. Asked what he thought Congress would do, Fuisz said action was possible, recalling that six years ago doctors got Congress to protect them from patent infringement suits over surgical techniques.

But, he added, it will be a battle of interests. "You will see the people making money off these patents lining up against those who dispense tax strategy advice," he said.

So now we can have lobbying over whether all can benefit from what the lobbyists accomplished earlier.

Ain't democracy great?

from CNET News.com, 2006-Apr-23, by Declan McCullagh with Anne Broache contributing:

Congress readies new digital copyright bill

For the last few years, a coalition of technology companies, academics and computer programmers has been trying to persuade Congress to scale back the Digital Millennium Copyright Act.

Now Congress is preparing to do precisely the opposite. A proposed copyright law seen by CNET News.com would expand the DMCA's restrictions on software that can bypass copy protections and grant federal police more wiretapping and enforcement powers.

The draft legislation, created by the Bush administration and backed by Rep. Lamar Smith, already enjoys the support of large copyright holders such as the Recording Industry Association of America. Smith is the chairman of the U.S. House of Representatives subcommittee that oversees intellectual-property law.

Smith's press secretary, Terry Shawn, said Friday that the Intellectual Property Protection Act of 2006 is expected to "be introduced in the near future."

"The bill as a whole does a lot of good things," said Keith Kupferschmid, vice president for intellectual property and enforcement at the Software and Information Industry Association in Washington, D.C. "It gives the (Justice Department) the ability to do things to combat IP crime that they now can't presently do."

During a speech in November, Attorney General Alberto Gonzales endorsed the idea and said at the time that he would send Congress draft legislation. Such changes are necessary because new technology is "encouraging large-scale criminal enterprises to get involved in intellectual-property theft," Gonzales said, adding that proceeds from the illicit businesses are used, "quite frankly, to fund terrorism activities."

The 24-page bill is a far-reaching medley of different proposals cobbled together. One would, for instance, create a new federal crime of just trying to commit copyright infringement. Such willful attempts at piracy, even if they fail, could be punished by up to 10 years in prison.

It also represents a political setback for critics of expanding copyright law, who have been backing federal legislation that veers in the opposite direction and permits bypassing copy protection for "fair use" purposes. That bill--introduced in 2002 by Rep. Rick Boucher, a Virginia Democrat--has been bottled up in a subcommittee ever since.

A DMCA dispute

But one of the more controversial sections may be the changes to the DMCA. Under current law, Section 1201 of the law generally prohibits distributing or trafficking in any software or hardware that can be used to bypass copy-protection devices. (That section already has been used against a Princeton computer science professor, Russian programmer Dmitry Sklyarov and a toner cartridge remanufacturer.)

Smith's measure would expand those civil and criminal restrictions. Instead of merely targeting distribution, the new language says nobody may "make, import, export, obtain control of, or possess" such anticircumvention tools if they may be redistributed to someone else.

"It's one degree more likely that mere communication about the means of accomplishing a hack would be subject to penalties," said Peter Jaszi, who teaches copyright law at American University and is critical of attempts to expand it.

Even the current wording of the DMCA has alarmed security researchers. Ed Felten, the Princeton professor, told the Copyright Office last month that he and a colleague were the first to uncover the so-called "rootkit" on some Sony BMG Music Entertainment CDs--but delayed publishing their findings for fear of being sued under the DMCA. A report prepared by critics of the DMCA says it quashes free speech and chokes innovation.

The SIIA's Kupferschmid, though, downplayed concerns about the expansion of the DMCA. "We really see this provision as far as any changes to the DMCA go as merely a housekeeping provision, not really a substantive change whatsoever," he said. "They're really to just make the definition of trafficking consistent throughout the DMCA and other provisions within copyright law uniform."

The SIIA's board of directors includes Symantec, Sun Microsystems, Oracle, Intuit and Red Hat.

Jessica Litman, who teaches copyright law at Wayne State University, views the DMCA expansion as more than just a minor change. "If Sony had decided to stand on its rights and either McAfee or Norton Antivirus had tried to remove the rootkit from my hard drive, we'd all be violating this expanded definition," Litman said.

The proposed law scheduled to be introduced by Rep. Smith also does the following:

• Permits wiretaps in investigations of copyright crimes, trade secret theft and economic espionage. It would establish a new copyright unit inside the FBI and budgets $20 million on topics including creating "advanced tools of forensic science to investigate" copyright crimes.

• Amends existing law to permit criminal enforcement of copyright violations even if the work was not registered with the U.S. Copyright Office.

• Boosts criminal penalties for copyright infringement originally created by the No Electronic Theft Act of 1997 from five years to 10 years (and 10 years to 20 years for subsequent offenses). The NET Act targets noncommercial piracy including posting copyrighted photos, videos or news articles on a Web site if the value exceeds $1,000.

• Creates civil asset forfeiture penalties for anything used in copyright piracy. Computers or other equipment seized must be "destroyed" or otherwise disposed of, for instance at a government auction. Criminal asset forfeiture will be done following the rules established by federal drug laws.

• Says copyright holders can impound "records documenting the manufacture, sale or receipt of items involved in" infringements.

Jason Schultz, a staff attorney at the digital-rights group the Electronic Frontier Foundation, says the recording industry would be delighted to have the right to impound records. In a piracy lawsuit, "they want server logs," Schultz said. "They want to know every single person who's ever downloaded (certain files)--their IP addresses, everything."

from Agence France-Presse, 2006-Sep-29:

Teacher who attacked Islam: 'alone and abandoned'

PARIS - French anti-terrorism authorities Friday opened an inquiry into death threats against a philosophy teacher who has been forced into hiding over a newspaper column attacking Islam, legal officials said.

Robert Redeker, 52, is receiving round-the-clock police protection and changing addresses every two days, after publishing an article describing the Koran as a "book of extraordinary violence" and Islam as "a religion which ... exalts violence and hate".

He told i-TV television he had received several e-mail threats targeting himself and his wife and three children, and that his photograph and address were available on several Islamist Internet sites.

"There is a very clear map of how to get to my home, with the words: 'This pig must have his head cut off'," he said.

Speaking on RMC radio, Prime Minister Dominique de Villepin said such threats were "unacceptable".

"We are in a democracy, everyone has the right to express his views freely — of course while respecting others. That is the only restriction that is acceptable on this freedom.

"This shows to what extent we live in a dangerous world... and how vigilant we must be to ensure people fully respect one another in our society."

The Paris state prosecutor's office Friday launched a preliminary inquiry for "criminal conspiracy in relation with a terrorist enterprise", asking the DST intelligence agency to look into the death threats.

But despite the government's assurances of support, Redeker accused the authorities of leaving him "alone and abandoned".

Interviewed over the telephone from a safe house by Europe 1 radio Friday, he said that "the education ministry has not even contacted me, has not deigned to get in touch to see if I need any help."

On Thursday Education Minister Gilles de Robien expressed "solidarity" with the teacher, but also warned that "a state employee must show prudence and moderation in all circumstances."

Redeker said that "if Robien is correct, then we would never have had any intellectual life in France. The function of politics is not tell us what we are allowed to think, but to defend our freedom to think and speak out."

The issue, as it relates to Islam, is a sensitive one in France, which has Europe's biggest Muslim community, estimated at six million or around 10 percent of the population.

Le Figaro, which published Redeker's article on September 19, printed a front-page open letter from the editors Friday expressing solidarity with him and "condemning with the greatest severity the grave attacks on freedom of thought and expression that this affair has provoked."

Redeker wrote the piece in reaction to the fury unleashed in Muslim countries by Pope Benedict XVI's references to Islam in an address in Germany two weeks ago.

Under the heading "In the face of Islamist intimidation, what must the free world do?", he denounced the "Islamisation of spirits" in France and claimed that "Islam is trying to make Europe yield to its vision of mankind."

Likening Islam to Communism, Redeker said that "violence and intimidation are the methods used by an expansionist ideology ... to impose its leaden cloak on the world".

He also compared the Prophet Mohammed unfavourably to Jesus Christ, describing the founder of Christianity as a "master of love" and the founder of Islam as a "master of hate".

"Exaltation of violence, a merciless war-leader, a pillager, a massacrer of Jews and a polygamist — this is the picture of Mohammed that emerges from the Koran," he wrote.

Subsequently Redeker was denounced on Al-Jazeera television by the influential Qatari Muslim scholar Yusuf al-Qaradawi, and that day's edition of Le Figaro was banned in Egypt and Tunisia.

Speaking on Europe 1, he said his detractors had "already won a victory of sorts."

"I cannot do my job. I have no freedom of movement. I am in hiding. Already they have succeeded in punishing me ... as if I was guilty of holding the wrong opinions."

from the Washington Post, 2006-Sep-27, p.A24, by Craig Whitlock:

Fear of Muslim Backlash Cancels Opera

BERLIN, Sept. 26 -- German lawmakers and cultural leaders assailed a Berlin opera house Tuesday for canceling a production that included a scene of the severed head of the prophet Muhammad, saying it was caving in to fears about religious extremism.

Officials with the world-renowned Deutsche Oper decided late Monday that the show -- an avant-garde remake of Mozart's "Idomeneo" -- could not go on after police warned that it could result in a violent backlash from Muslim fundamentalists. Opera officials said they were worried about a repeat of the worldwide protests that erupted this year after a Danish newspaper published cartoons satirizing Muhammad.

Kirsten Harms, general manager of the Deutsche Oper, said Tuesday that top Berlin police officials had said the production would "pose an incalculable security risk to the public and employees."

"If I had paid no attention and something had happened, everyone would rightly say that I had ignored the warnings of security officials," she said at a news conference.

Director Hans Neuenfels declined to cut the scene, and so the production was canceled.

The mayor of Berlin, federal officials and other lawmakers panned the decision, arguing that it was wrong to squelch artistic expression, even if it risked offending Muslims. "Our ideas about openness, tolerance and freedom must be lived on the offensive," Mayor Klaus Wowereit said.

German Interior Minister Wolfgang Schaeuble called the cancellation "crazy" and "unacceptable" during a visit to Washington. In a meeting with Washington Post reporters and editors, he added: "We have to be very, very clear -- we will not begin to discuss it. Otherwise we will not be convincing. Tolerance needs a clear position."

The show premiered at the Deutsche Oper in March 2003 and drew some jeers -- but no violence -- for a scene in which Idomeneo, the king of Crete, balks at making sacrifices to the gods and instead produces the severed heads of Muhammad, Jesus, Buddha and Poseidon, god of the sea.

Set in ancient Greece, the opera is considered a forceful critique of theological dogma and wars conducted in the name of religion. Neuenfels's three-act, Italian-language production was last at the Deutsche Oper in 2004.

Islamic tradition bans depictions of Muhammad and other prophets. About 5 percent of Germany's 83 million people are Muslim.

Coincidentally, the German government is sponsoring a conference on Islamic relations Wednesday a few blocks from the Deutsche Oper. The event is intended to aid the assimilation of Muslim immigrants in German culture and bolster religious tolerance.

Ali Kizilkaya, chairman of the Islamic Council for Germany, praised the decision to cancel the opera, saying that "it could certainly offend Muslims."

"Nevertheless, of course I think it is horrible that one has to be afraid," he added in a radio interview. "That is not the right way to open dialogue."

Germany has a strong tradition of free speech developed largely in response to the censorship policies enforced by the Third Reich.

In fact, the Nazis took control of the Deutsche Oper after they came to power in 1933. Propaganda Minister Joseph Goebbels oversaw the programming, and a box was reserved for Adolf Hitler.

from the Guardian of Manchester (UK), 2006-Sep-18, by Steve Busfield and agencies:

Google faces fines after Belgian ruling

A ruling by a Belgian court could potentially block Google's news aggregation business.

A complaint against the internet giant was launched by Copiepresse, an organisation that manages copyright for the French and German-speaking press in Belgium.

The court has ordered Google to stop reproducing articles from French-speaking newspapers in the news section of one of its Belgian websites.

The court's ruling, which was issued on September 5, stipulates that Google must pay a fine of 1m euros (£675,000) a day if it does not comply, according to the Copiepress general secretary, Margaret Boribon.

Links and summaries of articles in Belgian newspapers such as La Derniere Heure, La Libre Belgique and Le Soir were still visible on Google's Belgian website today.

"We are asking for Google to pay and seek our authorisation to use our content ... Google sells advertising and makes money on our content," Ms Boribon told Reuters, confirming reports in Belgian media.

She said she was informing her European counterparts of the results of the court action and it was possible that similar actions could be taken elsewhere in Europe.

Google spokeswoman Rachel Whetstone said: "We are disappointed by the decision, which we believe is flawed and which we intend to appeal."

She added that Google's policy is to remove any newspaper's content from its index if asked.

"We believe this case was entirely unnecessary," Ms Whetstone said. "There is no need for legal action and all the associated costs."

Google is facing a similar lawsuit by French news agency Agence-France Presse, which is also seeking monetary damages.

Similar cases in Germany and the Netherlands not involving Google have found in favour of internet sites linking to copyrighted content.

"The Belgian ruling seems very unusual and unprecedented," Christian Alberdingk Thijm, a Dutch internet lawyer, told Reuters.

"The scope and breadth of the ruling, on a very narrow foundation, is also extraordinary. If courts start preventing linking, we're entering a slippery slope."

The court relied on the testimony of a witness named Luc Golvers, a computer consultant, who said Google News must be considered an information portal rather than a search engine.

Mr Golvers said cached versions of news articles can be seen using Google servers even after the articles are no longer being posted on a newspaper's website.

He added that, according to a copy of the ruling, Google News was circumventing publishers' advertising revenue.

But Ms Whetsone said: "Google News does not have cached versions."

from PC Magazine, 2006-Feb-9, by Bary Alyssa Johnson and Mark Hachman of ExtremeTech:

AT&T Warns Apple, Others, Of Patent Infringement
AT&T has begun to name names in its hunt to license its MPEG video compression patents.

AT&T possesses several patents related to video compression, which the company says are an essential component of the MPEG-4 video technology. In a bid to drive its global licensing program, AT&T has targeted Apple Computer, Inc., CyberLink Corp., DivX, Inc., InterVideo, Inc., and Sonic Solutions as unlicensed companies whose products and software utilize the MPEG-4 technology.

AT&T has also contacted national retailers that distribute products from the companies listed above, to let them know that they may be held liable for infringement.

"Each of these companies has been advised that they are offering infringing products, that AT&T can provide proof of infringement, and that AT&T is offering a license under reasonable on non-discriminatory terms," Michael J. Robinson, licensing director of AT&T Intellectual Property Management, wrote in a letter sent in December 2005, and obtained by PC Magazine.

"If your company obtains MPEG-4 products or software from any of these companies, or any other unlicensed company, you are responsible for obtaining a license directly from AT&T or run the risk of distributing infringing products," Robinson wrote. "Damages resulting from the distribution of infringing products can include AT&T's lost profits, royalties and, in the case of willful infringement, treble damages and attorneys fees and costs."

Representatives from the companies named in AT&T's letter, including Apple, said they weren't aware of any notification from AT&T about possible infringement of its patents. "We believe that we have all necessary rights and licenses with respect to all of our products," a spokesman for Sonic Solutions replied.

AT&T and MPEG

For its part, AT&T has maintained that its patents underlie the MPEG-4 technology. PC Magazine attempted to contact Robinson for confirmation of the letter, but his office referred him to spokesman Jason Hillary for comment.

"The intellectual property developed by AT&T is a core component of MPEG-4 capability," AT&T's Hillary said, who declined to specifically confirm the letter's contents. "We are actively discussing and working out terms with each company for the licensing of that intellectual property, to enable them to fully take advantage of the technology."

"AT&T has intellectual property in the MPEG-4 area and are actively discussing licensing terms with a number of organizations," Hillary added. "We've announced and finalized agreements with two companies. We are having discussions with other companies but we can not provide details."

In the letter, AT&T said it can provide proof of the infringements, which could result in potential damages including lost profits, royalties and – assuming willful action – treble damages and attorneys' fees.

MPEG-4 technology is used mainly in streaming media applications and is made up of several parts. The "parts" or standards are responsible for regulating multiple multimedia units, including audio, and in this case, video profiles.

The MPEG Licensing Association (MPEG LA) oversees a patent licensing program for MPEG-2 and MPEG-4 technologies, with which AT&T is not affiliated. The separate MPEG standard falls under the auspices of the International Standards Organization (ISO) committee, which requires any company which participates in the committee to submit a letter saying they will license their patents on reasonable non-discriminatory terms, known as a RAND letter. AT&T's letter apparently doesn't cover the MPEG-2 AAC audio patents, which are administered -- along with patents from Dolby, Fraunhofer IIS, and Sony -- by Via Licensing Corp.

The MPEG-LA's MPEG-4 program is based upon patents that are essential to the standard. Licensing is voluntary, and patent holders are responsible for submitting their technology to be evaluated. If it is not deemed crucial for MPEG-4 implementation, it is not included in the MPEG LA's program.

Even if a patent is not essential to the MPEG-4 standard, it could still be important to particular product implementations, said Larry Horn, the president of licensing and business development for MPEG LA. Horn said he was not aware whether or not AT&T owned an essential patent.

"There could be many reasons that AT&T is not part of the program, maybe they didn't want to be included," Horn said. "We, as a company, don't make any assurances that all essential patents are included."

All of the companies named in the letter are involved with the editing, processing, or playback of video. With its video-enabled iPod, Apple is a high-profile target.

"This is all standard stuff, the only thing that makes it sexy is the fact that Video iPods [and similar products] are now very popular," said Greg Aharonian, editor of the Internet Patent News Service. "So if any of those companies are using this technology, they may have a problem."

Last year, AT&T announced that Pentax Corp. and Nero are among the latest licensees of its MPEG-4 patent package, allowing the two licensed companies to move ahead unencumbered by patent restrictions.

"Nero7 supports [MPEG-4 Part 2 Visual] and we needed a license in order for us to be able to include it and to sell our products to customers for OEM," a spokesperson for Nero said.

"Nero is a software maker, so they would provide encoding capabilities in their software," Hillary said. "Pentax would provide the ability to play back these types of files in the hardware that they create."

Pay-for-patents underlie standards

This isn't the first time that a company has tried to license out such a widely-used technology. Unisys, a player in the global IT industry, patented its GIF image format, asking software developers to pay royalties on programs that integrate GIF files. This eventually led to the development of PNG (Portable Network Graphics), a comparable format without legal restriction.

"In the patent world, the user of a product is responsible for figuring out which intellectual property obligations they have and how to meet them," Horn said. "They become vulnerable if infringing a patent under which they are not licensed."

With the recent explosion of products that use the MPEG-4 standard, including Apple's Video iPod and Creative's Zen Vision:M, AT&T could stand to gather a financial windfall from its patented technology. An increasing trend in mobile phone multimedia also signals potential future profits to be made through the global licensing program.

"AT&T could certainly try to go after any company that sells products like iPod - there's always a strategy with licensing technology," Aharonian said. "If you charge too much it gives people the ability to challenge the patent in court. If you charge something less, most people will just sign the license since it costs more to fight than to pay the license."

AT&T says it is looking to break from tradition by developing and delivering new services with extended capabilities. Its focus includes areas that would enable the company to deliver additional services over the existing network infrastructure.

"What we're doing is pretty common among intellectual property holders," Hillary said. "We're looking for ways to make sure others are able to take advantage of this technology and expand their capabilities and services by utilizing it, and at the same time we're able to get fair value back for the research and R&D expenses that go into developing it in the first place."

"A number of technologies have been developed, most of which relate back to the core communications services we deliver," Hillary said. "Think about video technologies. That's certainly one area we're looking to expand our capabilities for video."

Editor's Note:Additional comments by MPEG LA's Horn have been added to the story at 2:04 PM PDT on Feb. 10, 2006, in order to clarify Horn's position regarding AT&T's patents and AT&T's relationship with MPEG LA.

from IDG News Service via ComputerWorld.com, 2006-Jul-28, by Peter Sayer:

French copyright law puts squeeze on open-source
File sharing, reverse engineering now criminal offenses

France's Constitutional Council has made a stringent new copyright law even harsher, modifying three articles of the law and striking out a fourth in a review of its constitutionality. The changes mean that unauthorized sharing of copyright files such as music tracks will become a criminal offense, while those who reverse-engineer DRM (digital rights management) systems in order to develop interoperable software will face six months in prison and a fine of $36,000.

After the National Assembly and the Senate approved the law on June 30, members of the opposition Socialist Party called on the council to rule the law unconstitutional, citing procedural irregularities in debate and problems with 11 of the text's articles. However, their appeal backfired: The council refused to strike down the law in its entirety, and while it accepted the Socialists complaints about four of the disputed articles, the effect of the remedies it proposes is far from what the Socialists intended.

The ruling has dismayed campaigners against the law, who saw the constitutional review as a last chance to block the law before President Jacques Chirac signed it into effect.

"The decision will satisfy the major record, film and proprietary software companies. The public, the free software community and the artists are the losers in this affair," said Christophe Espern of copyright reform campaign group EUCD.info.

Aziz Ridouan, president of the Association of Audio Surfers, wrote that as a result of French Minister of Culture Renaud Donnedieu de Vabres' repressive law, "12 million French surfers risk five years in prison and a fine of $600,000 each time they download a file over the Internet."

Even Deputy Christian Vanneste, a member of the government majority who steered the law through the National Assembly, regretted the ruling, writing in his blog: "The law is validated, but Internet surfers have lost a few of its benefits."

Among the benefits Vanneste referred to, the text voted on June 30 allowed an exemption to the penalty for breaking DRM systems if it was done in order to develop interoperable systems, and made unauthorized file sharing a civil matter, not criminal, with a penalty of only $45.60.

The Socialists protested that Article 24 of the text made the law on copying of protected copyright works for personal use unfair. It created an exemption for the use of file-sharing software, making it a civil offense, but left other methods of copying subject to criminal penalties for piracy, defined elsewhere. Copying music for personal use is currently legal in France, and the price of all blank recording media, from cassette tapes to flash memory sticks, includes a special levy that is used to compensate artists.

Rather than modify the article to treat all unauthorized copying of protected copyright works for personal use as a civil offense, whatever the means employed, the council struck out the article in its entirety, exposing all online copying to criminal sanctions.

The council's decision undermines the assurances given by de Vabres, who said earlier this year that the law offered a "measured response" to file sharing, and that file sharers would no longer face prison.

The interoperability element makes it possible for competitors of, for example, Apple Computer Inc.'s iPod, to build players capable of playing music bought from the iTunes Music Store, or for others to create online music stores selling protected works that will play on an iPod.

For now, Apple refuses to license its DRM system to others, leaving those wishing to create interoperable systems no option but to reverse-engineer Apple's system by breaking the DRM protection. The June 30 version of the act punished the breaking of DRM protection by six months in prison and a $36,000 fine, but exempted those doing so to develop interoperable systems.

With so much at stake for open-source developers and others wanting to build interoperable music and video players while staying on the right side of the law, the Socialists had asked the council to define the term interoperability, undefined in the text. But the council, rather than clarify matters, simply deleted the word, removing the exemption and exposing open-source DRM developers to the full force of the law.

from TheInquirer.net, 2006-Jul-29, by Charlie Demerjian:

RIAA/MPAA adopt new stealth tactic
Evil wrapped in Miami Vice

I HAD THE misfortune of seeing the new Miami Vice movie Thursday night, but the experience wasn't all wasted, I stumbled upon the newest stealth rights removal reeducation campaign from the people that brought you DRM. Yes, the MPAA, RIAA or BSA, I am not sure which are behind this new tact, stealth infection of modern culture.

First the movie. It was far from good, but at no time did I actively contemplate biting my tongue off and using suicide as an escape. It was a free, and almost worth the price. If you think back, most movies have a few memorable scenes, humorous, effects-ridden or just interesting. Miami Vice did not. In fact, it was focused grouped to death, non-offensive in any way, but also studiously avoided doing anything interesting.

To use the Disco Steve method of rating movies, a scale from 1 to infinity of how many miles he would walk to avoid the movie, I would give this an 8. It was a B grade drug movie with only the most tenuous ties to the original TV show. Will Ferrell was about as suave and cool as the guy running around a NASCAR infield, drunk out of his mind, rebel flag in hand, skidmarked underwear showing.

The movie did have one thing that was extremely interesting though, the next campaign from the DRM infection folk. They are now starting to equate piracy, or their version of it, with all the things that are bad in the world. Remember the 'piracy funds terrorists' laugher a few months ago? They learned, and are doing it through the back door now, the front door got them nowhere.

Now, they are slipping the message in through 'blowoff' lines, trying to infect modern culture. There was a scene in Miami Vice where they were discussing the big bad drug dealers, and how international they were. The good guys listed all the thing the bad guys were capable of bringing into the US, Cocaine, Heroin, etc etc. They listed it as coke from Coumbia, heroin from Afganistan, X from Y and A from B. Pretty normal stuff. At the end, they added 'pirated software from China'. Blink.

Now, had they listed anything other than drugs and software, it might not have been so blatant. If they had listed pirated software any other time in the movie, I might not have noticed, but this one was pretty obviously a plant. Don't go see the movie, it isn't worth it, but if you do, pay attention for this bit, you will see exactly how much it stands out. The movie makers could not afford people to do decent dialog, and it seems the DRM infectors could not either.

Make no mistake about it, this is the first, or at least an early attempt to infect popular culture with the themes the content mafia wants you to believe are reality. They have lost the online war, and are starting to lose in the courts. The overt attempts at bending conversations have failed, mainly because they are wrong, so now they are trying the back door.

As I said, this is the first time I have seen it myself, but it has probably been around for a bit. Have you seen it? Can you send me other times that it happened, or is there a web site that cataloguess it? If so, send the links this way so I can publicize it, or if you are bored, start a site yourself. Keep an eye open for more of this evil folks, we can't let the bad guys win.

from ZDNet UK, 2006-Jul-18, by Tom Espiner:

Super-Asbos planned for cybercriminals

The Home Office is pushing for sweeping powers to ban suspected hackers from using the Internet, but security experts are concerned that civil liberties could be infringed

The Home Office wants to give the police and the courts sweeping new powers which could see suspected hackers and spammers receiving the cyber equivalent of an anti-social behaviour order (Asbo).

The proposed Serious Crime Prevention Order is intended to combat organised crime where the police do not have enough evidence to bring a criminal prosecution. It would enable civil courts to impose the orders on individuals, even if they had not been convicted of a crime.

The proposals are contained within a Home Office green paper called New Powers Against Organised and Financial Crime", published on Monday.

A Home Office spokesman confirmed on Tuesday that the proposals, if enforced, would give the police and courts "extensive powers" against suspected hackers and spammers, which could extend to banning people from using the Internet.

Asbos give the courts almost unlimited powers when imposing conditions on the person receiving the order. Under the Home Office proposals, the courts would have almost unlimited discretion to impose the order if they believe it probable that a suspect had "acted in a way which facilitated or was likely to facilitate the commissioning of serious crime". In a civil court, hearsay is admissible evidence, and the burden of proof is lighter than criminal courts.

"The proposals would give extensive powers [to the courts and police]. Suspected hackers could be banned from the Internet, or banned from entering Internet cafés," a Home Office spokesman told ZDNet UK.

Those suspected of hacking or spamming could also have computer equipment taken away by the police.

"Equipment can be seized [if the proposals go through]," said the Home Office spokesman.

Suspected cybercriminals could also have severe limitations imposed on their financial dealings, requiring them to use "notified financial instruments" such as credit cards and bank accounts, and limit the amount of cash they can carry. They could also lose their businesses, property, or anything which may "have been used to facilitate serious crime".

The proposals also call for greater data transfer and mining capabilities between public and private sector bodies for law enforcement, enabling the police to track financial transactions.

Security professionals have flagged up the impact that the Home Office proposals would have on civil liberties.

"It would be a good piece in the law-enforcement arsenal, if judiciously used," said Richard Starnes, president of the Information Systems Security Association (ISSA).

"Obviously one pitfall is that this could adversely affect people's civil liberties, without going through the judicial process. The judicial process is there for a reason — to prevent the State from abusing its citizens," said Starnes.

"In the US, this legislation would not be constitutional," said Starnes.

"If the Home Office can show it can use these powers in a reasonable and prudent manner, then I'm in favour," Starnes added.

The Home Office said that the courts would have to decide whether the proposed legislation would contravene individuals' rights under the European Convention on Human Rights, and insisted that the proposals were "a good idea".

"This [the proposals] is what we're going to push for," said the Home Office spokesman.

However, these proposals are not set in stone, as they will be debated in Parliament. Stakeholders including the police and judiciary will be consulted, as well as the public, who can download a PDF of the proposals from the Home Office Web site.

from Business Week, 2006-Jul-14:

Friendster's Patent Possibilities
Social-networking upstarts have stolen its lead, but the site now may have a potent legal weapon at its command

Friendster.com may be losing some of its "friends" to upstart MySpace.com. But the old-school social-networking site just got something that MySpace lacks: a patent on—you guessed it—social networking.

The patent, issued on June 27, refers to a "system, method, and apparatus for connecting users in an online computer system based on their relationships within social networks." While that's pretty general, it certainly covers the activities of the dozens of other social-networking Web sites that have sprung up since Friendster filed for the patent in June, 2003 (see BusinessWeek.com, 12/12/05, "The MySpace Generation").

It's not yet clear how Friendster will use the patent, which names original founder Jonathan Abrahms as the inventor. Friendster President Kent Lindstrom says the company is in the process of determining whether the site will be able to charge licensing fees. "Any kind of businessperson would say, 'Hey, we're going to prosecute this to the full extent we can and get every penny we can out of it,' " says Lindstrom. "But we do work in a community of businesses and don't want to just cause trouble if there is no reason for it."

But trouble is waiting, should Friendster decide to wield the patent. "There is a legal presumption that the patent claims were properly issued over the earlier technology discussed in references that were considered by the Patent Office while the application was under examination," says intellectual-property attorney Bill Heinze of Thomas, Kayden, Horstemeyer & Risley. "It's very difficult for someone to convince a judge to go back and say the examiner is wrong."

SECOND PATENT PENDING.

Other social-networking Web sites don't yet appear to be losing much sleep. Reid Hoffman, founder of business social-networking site LinkIn.com, said in an e-mail, "Some of our folks have reviewed the claims, and think that it's fairly obvious that none of them apply to us.... So, in short, not worried." A MySpace spokesperson says the company isn't currently prepared to comment.

Bolt.com founder Aaron Cohen says that patent protection could hold back innovation in the industry. "Social media today is similar to rock 'n' roll in the '60s," he says. "Every company riffs on each other. Patent-protection strategies are counter to the spirit of the user-generated revolution."

Friendster wasn't the first to file a social-networking patent. Sixdegrees.com, an early social-networking community that at its peak had about 3.5 million members, in 2001 was granted a patent for which it filed four years earlier. The patent went as part of the assets when Sixdegrees.com sold to now-defunct media company Youthstream Media Networks. Hoffman, along with Tribe.net founder Marc Pincus, purchased that patent at an auction in 2003.

Meanwhile, Friendster filed for a dozen patents in mid-2003 at the urging of major venture capital backer Kleiner Perkins Caufield & Byers. A second patent is expected to be granted soon, says Lindstrom. This one will focus on the technologies involved when a user loads photos onto another user's page.

REVISED FOCUS.

Friendster has lost luster in recent years, earning a reputation for failing to keep up with the needs and desires of its users (see BusinessWeek.com, 6/13/05, "Hey, Come to This Site Often?"). But in recent months, the site has picked up momentum as it continues to improve design and technology. Friendster counts 9 million to 10 million users, and it added 300,000 users last month. Says Lindstrom, "It's not MySpace, but it's a pretty sharp increase." (MySpace, owned by News Corp. (NWS ), had 51 million unique users in May.)

Last October, Friendster put itself on the block, but by early winter, it hadn't found a buyer and was quickly losing capital. Kleiner Perkins pulled Friendster out of debt in February, giving the company the capital to pay its 25 employees and get back on track.

The company now plans to focus on post-college users, young urban adults looking to connect to people in new cities. The recently redesigned site gives attention to what users are doing, rather than inviting folks to surf profiles, and Friendster is bulking up on engineers to make the site more user-friendly. Says Lindstrom: "In the end, people will end up using Friendster because the design is good and it runs fast. So we've been focusing on responding to what users are asking for."

Maybe, but in a sector where popularity is viral and fleeting, and reputation is everything, Friendster may want to think twice about unfriendly acts toward rivals.

from RightToCreate.blogspot.com, 2006-Apr-19, by Jackson Lenford:

Write Free Software, Pay $203,000 to Patent Holder

Ben Jacobsen, a model railroad hobbyist, wrote a bunch of software to let you connect your computer to your model railroad and control trains with it. He chose to not only give the software away for free, but to make the source code available as well, so that the model railroading/hacker community could improve it and customize it to their liking.

And then KAM Industries, maker of commercial software that serves a similar role, tried asserting their 'patent rights' over doing just that.

When the author of the open source railroad controller asked for additional information about what claims were being infringed, KAM sent him an invoice for $203,000, claiming that the 7000 or so users of his software resulted in damages of at least $29/each.

KAM then sent a request to the author's academic sponsor (unrelated to his independent model railroad work), requesting copies of all his email and other correspondence. To most observers, these actions would seem to be nothing more than dirty tactics meant to rattle Jacobsen into compliance.

Several more threatening letters arrived. Finally, in January of this year, Jacobsen responded by pointing out that he didn't believe the KAM patent would withstand a challenge in court, noting that there was plenty of prior art, including his allegedly infringing software, which was available before KAM filed their patent application. He also pointed out that KAM's lawyers must have known this all along. In February, KAM's lawyers responded by claiming that they know of no invalidating prior art, and that they still viewed Jacobsen's work as infringing on their patent rights.

This is all still ongoing. It isn't clear that KAM will cease harassing Jacobsen, even with the knowledge that their patents are likely illegitimate.

But it is abundantly clear that patents like this hurt the efforts of those trying to make the world a better place by producing tools for others to use (for free in this case). It is equally as clear that even small companies can use their patents as bludgeons against individuals.

The continuing saga (as well as all correspondence to date) can be followed at Jacobsen's website. Let's hope Jacobsen's software doesn't get shuttered by patent interests like RProxy did.

There are a number of useful reforms that could make the patent system a bit less abusive. If you want to do something about this type of absurdity, you can certainly try writing a letter to your Senators and Congressional Representatives. As always, feel free to cut and paste anything from this website when you compose your letter (a letter focusing on your favorite reform is a useful strategy) -- everything at Right to Create is in the public domain.

from the Associated Press, 2006-Jul-13, by Joe McDonald:

China Jails Reporter Over Essays on Graft

BEIJING -- A Chinese reporter who posted essays on foreign Web sites criticizing the ruling Communist Party was sentenced Thursday to two years in prison on subversion charges, his lawyer said.

Meanwhile, a reporter who was convicted in a case that caused an uproar after Yahoo Inc. handed over e-mails to Chinese prosecutors has appealed and asked to be released to see a doctor, a human rights monitoring center said.

Press freedom groups say China is the world's leading jailer of journalists, with at least 42 behind bars, most on charges of violating vague subversion or security laws.

Li Yuanlong, a reporter for the newspaper Bijie Daily in the southern city of Bijie, was detained in September after posting essays on foreign Web sites.

Li was convicted by the Bijie Intermediate People's Court of "inciting subversion" and sentenced to two years, said his lawyer, Li Jianqiang, who is no relation.

Foreign journalism groups had appealed for Li's release.

His lawyer said Li pleaded innocent at his 2 1/2-hour trial in May.

Li's essays, written under the pen name Ye Lang or "Night Wolf," included "On Becoming an American in Spirit" and "The Banal Nature of Life and the Lamentable Nature of Death."

They were published on Web sites that are banned in China, including Boxun News, the Falun Gong-affiliated Epoch Times, ChinaEWeekly, and New Century Net, according to earlier reports.

Meanwhile, reporter Shi Tao, who was sentenced last year to 10 years on charges of leaking state secrets, has appealed and asked for release to see a doctor, said the Hong Kong-based Information Center for Human Rights and Democracy.

Shi, 37, has contracted a lung condition and a skin disease while in prison, according to his family.

An employee who answered the phone at the High Court in Hunan province, where the Information Center said Shi's appeal was filed, said he had no information on the case.

Shi was accused of revealing the contents of a secret official memo about media restrictions.

Journalism activists criticized Yahoo Inc. after it emerged that the company turned over e-mail from Shi's account to prosecutors.

from Wired News, 2006-Jun-9, by Eli Milchman:

China Restores Google.com

China has lifted its online blockade of Google.com after a two-week crackdown that had prevented direct access to the site and temporarily thwarted popular workarounds, a media watchdog group reported Friday.

The Paris-based journalism advocacy group Reporters Without Borders, or RSF, said that tests revealed the uncensored version of the search site was accessible again to internet users in Beijing and Shanghai. The crackdown overlapped with the June 4 anniversary of the bloody 1989 Tiananmen Square protests.

A Google spokesperson confirmed this, saying that "we have heard no further reports from users in China of problems accessing Google.com."

On June 6, RSF reported that Google.com was blocked throughout much of China, and that programs like DynaPass and Ultrasurf, which allowed users in China access to censored web content, were also being blocked on a large scale successfully for the first time.

"It's always the same thing that happens in China -- they heavily censor the internet because they think people will be discussing the event," said Julien Pain, RSF Internet Freedom desk chief.

"This year, what's new is that they blocked Google at this period."

Google in January launched Google.cn in China, a self-censored version of the search engine that conforms with official government restrictions on content, including pornography and gambling, as well politically sensitive subjects such as Tiananmen Square and the Falun Gong sect.

On Tuesday, Google co-founder Sergey Brin was quoted in news reports saying that he believed the company may have compromised its principles by agreeing to state-ordered censorship.

RSF's Pain criticized Google for creating the site, saying it gives the Chinese government an option to fall back on if they decide block Google.com.

"If you give them the option ... in time of crisis they will block it. And in the long run, they will block it."

If you leave the option open to the Chinese, you have to be really naïve to think that they won't use it," said Pain.

from the Times of London, 2006-Jun-7, by Rhys Blakely:

Google admits being compromised over China

Google has admitted for the first time that it compromised its principles when it entered the Chinese market and agreed to toe Beijing's strict line on censorship.

Speaking in Washington, Sergey Brin, Google's billionaire co-founder, said the company, which operates under the motto "do no evil", had adopted "a set of rules that we weren't comfortable with".

In a hint that Google could adjust its stance in China in the future, he added: "Perhaps now the principled approach makes more sense."

Google's decision to launch its Chinese site, Google.cn, last year met with a barrage of criticism when it emerged that search results for politically sensitive topics such as the 1989 Tiananmen Square massacre would be censored.

The pact made between Google and China's leaders led to the internet company being branded "a megaphone for communist propaganda" at a US Congressional hearing called after the move.

Critics including Reporters Without Borders, the press freedom group, have called China "the world champion" of internet censorship. The country has invested heavily in a sophisticated filtering system, dubbed "The Great Firewall", which allows the authorities to search out dissidents and block their sites.

Mr Brin said: "We felt that perhaps we could compromise our principles but provide ultimately more information for the Chinese and be a more effective service and perhaps make more of a difference."

The lure of the massive Chinese market has also seen Google's arch-rivals Microsoft and Yahoo! dragged into the controversy. In particular, Yahoo! has been condemned for handing over e-mail details that led to several outspoken Chinese bloggers being jailed.

However, it is questionable whether Google could afford to turn its back on China's explosive economy.

Yesterday, Times Online revealed how the company has struggled to compete in businesses outside its core search service. Failures to break into fields such as news and financial information could up the pressure on Google to extend the reach of its search tool – already the world's most popular – into new territories.

In April, Google rebranded itself as "Gu Ge" - or "Harvesting Song" - in China, a move it said demonstrated its commitment to its controversial entry there. Speaking in Beijing at the time, Eric Schmidt, Google's chief executive, said: "We believe that the decision that we made to follow the law in China was absolutely the right one."

Commenting on the massive growth of the Chinese online advertising, Mr Schmidt said: "I don't know where [Chinese] revenue growth will be, but it will obviously be large."

The attraction of Chinese cyberspace and its massive pool of potential consumers for America's internet giants has long been clear.

Dr Charles Zhang, the chief executive of Sohu.com, China's largest web portal, said there are at least 150 million Chinese internet users, and there could be as many as 200 million. Those figures would place China neck-and-neck with the US in terms of internet users.

Mr Brin was in Washington to ask US senators to approve a plan that would safeguard "net neutrality" – the current online system which means all internet content is handled equally.

In meetings with Republican John McCain, a member of the Senate committee that oversees telecoms issues, he argued against a system that would allow telephone and cable companies to collect premium fees from companies such as Google, Microsoft and Yahoo! for faster delivery of their services

"The only way to have a fast lane that is useful – that people will pay a premium for – is if there are slow lanes," he said.

from the San Jose Mercury News, 2006-May-27, by Howard Mintz:

Apple loses case against bloggers

Applying traditional First Amendment protections to the exploding universe of online journalism, a state appeals court on Friday rejected Apple Computer's bid to unearth the identities of individuals who leaked inside information on a new company product to bloggers.

In a 69-page ruling, the San Jose-based 6th District Court of Appeal broke new ground by concluding that bloggers and Web masters enjoy the same protections against divulging confidential sources as established media organizations. Civil liberties groups and journalism organizations have argued that online journalists need to protect the confidentiality of sources just as much as traditional media, such as the New York Times and CNN.

Journalists covet the ability to protect the identity of sources as a key to gathering news. The appeals court's firm endorsement of journalistic shields for online media sets up what could be a crucial First Amendment showdown in the California Supreme Court if Apple continues to press its case.

Apple triggered the closely watched case two years ago when the company went to court to pry loose the identities of individuals who leaked internal company documents on a new product called ``Asteroid'' to three Web pages devoted to Apple-related news. Among other things, the plans for Asteroid, including an exact drawing of the yet-to-be released digital music device, were posted on a Web site called PowerPage, operated by Pennsylvania blogger Jason O'Grady.

Apple has argued that it is entitled to the identities of the bloggers' sources in order to protect its trade secrets and punish anybody who stole and distributed them. A Santa Clara County judge sided with Apple last year, but the appeals court overturned that decision Friday.

The 6th District, in a unanimous three-justice ruling, rejected Apple's argument that bloggers are not covered by California and federal laws protecting the confidentiality of journalists' sources and should not be afforded the same protections as traditional news organizations.

``We decline the implicit invitation to embroil ourselves in questions of what constitutes `legitimate journalism,' '' Justice Conrad Rushing wrote for the court. ``The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish `legitimate' from `illegitimate' news.''

``Any attempt by the courts to draw such a distinction would imperil a fundamental purpose of the First Amendment,'' the justices added.

Apple lawyers referred questions to company spokesman Steve Dowling, who did not return phone calls seeking comment. Apple has repeatedly described the case as an important test of a company's ability to protect its trade secrets.

Civil liberties groups and other online media advocates lauded the court decision, saying it marked a legal breakthrough for the eclectic blend of new media operators devoted solely to the Web. The Electronic Frontier Foundation, which represented O'Grady in the case, called the ruling a ``huge win'' for online journalists.

Various legal blogs also supported the decision. Eugene Volokh, a University of California-Los Angeles law professor who runs a popular law blog, said the court ``got this absolutely right.''

``This means that if a journalist receives information from a source, it doesn't matter if they publish that on a Web site or in a newspaper or they are talking about it on the radio,'' added Lauren Gelman, assistant director of Stanford Law School's Center for Internet and Society.

Apple was backed in the case by a coalition of high-tech companies that warned there is no journalistic privilege when it comes to concealing corporate theft. And Apple, which investigated several dozen employees for the leak, has contended that the case is about theft, not the First Amendment.

Superior Court Judge James Kleinberg, who ruled in Apple's favor last year, agreed with that position, concluding that Apple had a right to find out who stole and leaked the information on Asteroid, a device designed to work with Apple's GarageBand music software.

The appeals court, however, found that Apple failed to thoroughly pursue other options before going after the bloggers' sources. The 6th District also ruled that a 20-year-old federal law designed to protect the privacy of electronic communications prohibits Apple from going through Internet service providers to obtain the bloggers' sources.

The appeals court also refused to accept Apple's argument that information related to the Asteroid product was not newsworthy and should not fall under the scope of laws protecting a journalist's confidential sources.

Contact Howard Mintz at hmintz@mercurynews.com or (408) 286-0236.

from TheInquirer.net, 2006-May-19, by Paul Hales:

RIAA sues radio station
$150,000 per tune

BOUNTY -HUNTER the RIAA is suing a satellite radio firm, claiming a recording device it uses is more like a music download service than a broadcaster.

The industry bouncer filed a suit against XM Satellite Radio Holdings Inc. in New York yesterday.

It claims that XM's Inno device stores music in such a way as to make it more like an iPod than a tranny. It says it wants $150,000 in damages for every song XM customers may have copied onto the device, which only went on sale this month.

The RIAA says XM subscribers using the device "will have little need ever again to buy legitimate copies of plaintiffs' sound recordings."

XM said the RIAA's claim is cobblers.

"XM Radio is the largest single payer of digital music broadcast royalties, and royalties paid by XM go to the music industry and benefit artists directly," a spokesman for the radio company said.

"The music labels are trying to stifle innovation, limit consumer choice and roll back consumers' rights to record content for their personal use," he added.

from National Review Online, 2006-Apr-7, by Rich Lowry:

Let Soros Speak!
GOP cynicism and 527s.

Even George Soros has a right to participate freely and fully in American politics. Republicans apparently have a hard time grasping that concept.

And so in the House they have passed new, onerous regulations on the so-called 527 organizations that liberal groups used to pour massive resources into the 2004 elections, with left-wing billionaire Soros alone donating millions of dollars.

The Left uses the phrase “driving while black” to describe what it considers a systematic campaign by police to stop motorists for the noncrime of being black. Republicans have created their own category of nonoffense, “organizing while Democratic.”

Four years ago, Republicans railed against the McCain-Feingold bill to ban large “soft money” contributions to the political parties and prohibit broadcast ads that named a candidate within 60 days of an election. Back then, they professed ardent love for the First Amendment and worried that the legislation would tamp down on — by limiting spending on — entirely legitimate political activity. We now know they meant none of it.

The festival of GOP cynicism on this issue was kicked off by President George Bush. Vetoing something called campaign-finance “reform” would have been politically painful, even though his advisers thought the bill was constitutionally dubious. But what's mere unconstitutionality compared with political convenience? Bush signed the bill on the assumption that the Supreme Court would do his constitutional duty for him and strike it down. But the last place to expect reliable constitutional interpretation is the court. Its jurisprudence is a witches' brew of eye of newt, toe of frog and anything else that might be at hand — and, lo, it decided that political expression really wasn't so central to the First Amendment after all.

Fortunately, there was a “loop-hole” in McCain-Feingold. The beauty of a free society is that it brims with loopholes. In this case, it was 527 organizations (the name comes from the section of the tax code they exist under). 527s could accept unlimited contributions and spend them on grass-roots activity and ads, as long as nothing they did expressly advocated the election or defeat of a candidate (doing it obliquely was OK).

Democratic lawyers first realized the potential of the groups, and liberal donors quickly filled their coffers. Republicans had to decide whether to jump-start their own 527s, or to argue that they were illegal under McCain-Feingold. They choose the latter; if you can't beat them, ban them.

This is why the same congressional Republicans who said that McCain-Feingold went too far, now want to extend its reach and limit individual donations to 527s to $30,000 a year. Of course, Democrats have matched them hypocrisy for hypocrisy. They once excoriated big, unlimited donations, but now defend them. Their opportunism has landed them on the correct position.

That someone can drop wads of cash on a political cause — spurring fevered advocacy door-to-door and on the airwaves — is a tribute to the vitality of our political system. I might think George Soros is nutty, but one man's loon is another's true believer. It is important that significant avenues of political activity exist outside the regulated channels of the two parties, because it brings fresh, and often inconvenient, points of view to the table. The highest-impact 527 in 2004 was “Swift Boat Veterans for Truth.” The GOP wasn't going to touch John Kerry's Vietnam record. It took an outside group to do it, giving voters information from which they could conclude that either John Kerry is untrustworthy or the right wing is vile.

With 527s under assault, liberal groups are moving on to the next “loophole,” 501(c)4s. McCain-Feingold shifted much political activity out of the two parties and into 527s. The new legislation would only chase political activity out of the 527s and into the 501(c)4s. Then, those entities eventually will be targeted too, creating a premium for the newest loophole. As long as our political system remains truly open, there will always — thankfully — be another one of those.

Rich Lowry is author of Legacy: Paying the Price for the Clinton Years.

from the Times of London, 2006-Mar-26, by Andrew Sullivan:

Hey Chef, these guys are killing free speech

We have a new cartoon-blasphemy scandal. No, it's not Islamists burning down Kentucky Fried Chicken stores in Pakistan because a few Danish cartoonists had the gall to draw the prophet Muhammad. Now it's Scientology versus the popular and hilarious cartoon television programme South Park. And the Scientologists, like the Islamists before them, are winning.

South Park is a potty-mouthed series created by two young iconoclasts, Matt Stone and Trey Parker. It features a group of nine-year-old cardboard cut-out pals whose adventures include run-ins with a talking piece of Christmas poo, Jesus, Saddam Hussein and Mel Gibson. The show is both highbrow, it has dissected left-wing political correctness along with Vatican hypocrisy, and lowbrow.

Yes, Paris Hilton once entered a “whore-off” contest with a gay character called Mr Slave. The show is as offensive as it is inspired: the first truly post-PC television adventure. It is also brave. It doesn't only skewer political ideology, it also aims square at religions. It has mocked Catholicism, Mormonism, evangelicalism and even featured a cartoon Muhammad as a super-hero.

The Catholic League managed to stop a rerun of an episode called Bloody Mary. But now things have become really ugly. Though South Park is broadcast in Britain one episode has never been aired in the UK, and has just been pulled in the US. The show mocked Scientology. In the episode one of the kids, Stan, takes a Scientology “stress test” and does so well he is hailed as the reincarnation of L Ron Hubbard, the science-fiction writer who started Scientology.

Suddenly the child is mobbed. John Travolta shows up. Stan is sent to his room, where he finds Tom Cruise. When Stan tells Cruise what he thinks of his acting skills, Cruise is so crushed to have been dissed by the new prophet of Scientology that he runs into a closet and won't come out. A chorus of people then implore Cruise to “come out of the closet”. Not exactly subtle. But it's a cartoon; the episode begins with a disclaimer that none of this is supposed to be mistaken for reality.

In the US all hell broke loose when the episode was broadcast. One of the show's cartoon stars, an oversexed, overweight African-American chef in the school cafeteria, is voiced by Isaac Hayes, the soul singer best known for singing the theme song for Shaft. Hayes, it turns out, is a Scientologist.

At first he seemed to have no problem with the episode. He told the American satirical magazine The Onion that he often had to defend the show's edginess: “I told them not to take this stuff seriously. If you do, you'll get in trouble. Just enjoy it.”

That was January 4. By January 18 Hayes had been admitted to hospital for “exhaustion”, and a friend subsequently said he'd had a stroke. Eight days ago Hayes quit the show, accusing it of religious “bigotry”. (Chef has since been outed as a paedophile, fallen off a bridge, been mauled by a mountain lion and died.) Then the Scientology episode rerun was abruptly yanked from the schedule.

News reports say that Viacom, the company that owns Comedy Central, made the decision. Viacom also owns Paramount movie studios, which has spent a small fortune on Mission: Impossible III starring Cruise, a Scientologist. He denies any connection. Viacom refuses to say why it hasn't put the episode back on the air. South Park fans have started a petition.

And so we are back where we were with the Muhammad cartoons. Someone somewhere won't let you see the Scientology episode of South Park. You can go to the Comedy Central website and view it on the internet — the last refuge for free speech. But you won't see it on television. In a battle between satire and religion, although some deny that Scientology deserves that moniker, religion wins again.

This is, of course, a trivial story in many ways. South Park is preternaturally puerile (though it remains one of the most inspired pieces of sane lunacy out there). There are wars going on. Who cares if one silly episode of a silly series gets pulled?

Well: count me as one who does care. In the mansion of free speech cartoons have an honourable room. You can say things in cartoon form that you could never put into words or enact with real live human beings. You can turn politicians into unearthly creatures; you can portray the powerful as fools and liars; you can mock pretension of all sorts with an abandon and visual wit the written word cannot match. You can create fantasy worlds that make arguments that would be libellous or untrue in other contexts.

In the cartoon in question no one alleged that Cruise was gay. They constructed a scene where he was in a closet and others were urging him to come out of it. And it's this artful ability to say in cartoon form what you cannot say in any other without a libel writ that makes cartoons irreplaceable.

In the Parker-Stone puppet film, Team America, you get to see Michael Moore explode as a suicide bomber. In the sublime South Park movie Saddam Hussein has a gay love affair with Satan. Cartoons and puppetry, as the classic series Spitting Image proved, can convey truths and explore fantasies no other form can.

We need those truths and benefit from those fantasies. A free society survives partly because the powerful are mocked, and their pretensions undermined. Religions, which guard their own illusions carefully, are particularly ripe for satire. And they should be.

Whenever one human being is claiming to tell the truth about the meaning of life he is making a very powerful claim — and in a free society he also runs the risk of getting a raspberry. Laughter matters because piety begets power.

Orwell once remarked that one reason fascism never took off in Britain was because the sight of a goose-stepping soldier would prompt your average Englishman to giggle. Someone is now silencing the giggles. And our world is a lot creepier because of it.

from TheInquirer.net, 2006-May-3, by Nick Farrell:

RIAA and MPAA apply more pressure to Universities
Install student filters

THE RECORDING Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) seem to have turned on their allies at the Universities and are ordering them to install better filtering and security to stop students file-sharing.

Through-out its campaign to stop students downloading music, the Universities have been very forthcoming with data and have given evidence to the two watchdogs as to who has been downloading what on their systems.

Although many feel that this has been enough to stop internet file sharing, it now seems that the RIAA and MPAA do not think so. They have written to 40 universities to tell them that file sharing is still going on in their internal networks. They say they are concerned that students at colleges and universities have been increasingly using programs like Direct Connect (DC++), MyTunes and OurTunes to engage in such activity on campus LANs without using the broader public Internet.

RIAA President Cary Sherman said that while his group was "appreciative of our partners in the university community and all they have done in recent years to tackle the problem of digital piracy" but it was not enough.

"We cannot ignore the growing misuse of campus LAN systems or the toll this means of theft is taking on our industry."

He said that turning over campus networks which did not stop internal file sharing would become a priority in the coming year.

Sherman urged the universities to install blocking and filtering devices which are currently available to help administrators restrict inappropriate use of a campus network.

from the Wall Street Journal, 2006-Apr-6, p.A1, by Daniel Golden:

In Religion Studies, Universities Bend To Views of Faithful
Scholar of Mormon History, Expelled From Church, Hits a Wall in Job Search
Trying to Avoid 'Minefields'

RANCHO CUCAMONGA, Calif. -- In 1993, the Mormon church excommunicated D. Michael Quinn, one of the world's foremost authorities on the faith, whose writings had frequently contradicted the church's traditional history.

Now, he has become a pariah in some higher-education circles as well.

Although Mormon studies is a fast-growing academic discipline, Mr. Quinn -- a former professor at Mormon-run Brigham Young University and the author of six books on Mormon history -- can't find a job. In 2004, he was the leading candidate for openings at two state universities. Both rejected him.

At least three other secular schools plan new professorships in Mormon studies, but he appears to be a long shot for these posts, too -- not because he lacks qualifications, but because almost all the funding for the jobs is coming from Mormon donors.

"At this point, I'm unhireable," says the 62-year-old scholar, who lives with his mother to save money in this town east of Los Angeles.

Mr. Quinn's struggles reflect the rising influence of religious groups over the teaching of their faiths at secular colleges, despite concerns about academic freedom. U.S. universities have usually hired religious-studies professors regardless of whether they practiced or admired the faiths they researched. But some universities are bending to the views of private donors and state legislators by hiring the faithful.

"If you want to succeed in Mormon studies you have to make compromises and you have to tread gently," says Colleen McDannell, a professor of American religions at the University of Utah. "Michael would not do that."

W. Rolfe Kerr, commissioner of education for the Church of Jesus Christ of Latter-day Saints, the faith's formal name, said Mr. Quinn is "highly regarded in his discipline" and the church would not "campaign against him" for any academic post. However, Mr. Kerr said, "there may be a perception" of Mr. Quinn in the Mormon community "that would cause him, in the eyes of some, to be less acceptable."

Some professors at both state universities that rejected Mr. Quinn say fear of offending Mormons played a role. Deans at the universities deny that.

In the 1970s, some universities pioneered the idea of privately funded professorships in specific religions by establishing Judaic-studies chairs. Now many universities have chairs for faiths ranging from Islam to Sikhism. They are usually underwritten by donors of the same religion, who generally expect that the scholar filling the chair will be sympathetic to the faith.

Former Princeton University president William G. Bowen says there are similar issues in many other areas of academic study such as unionism, which is why university presidents and trustees prefer professorships to cover broader areas. "What the university shouldn't do is allow the donor control over the hire or the curriculum," says Mr. Bowen, who is now president of the Andrew W. Mellon Foundation.

"Every single department of religion is negotiating with religious communities in new ways," says Laurie Patton, chairwoman of the religion department at Emory University, a private, secular school in Atlanta.

In 1999, the Aquinas Center, a Roman Catholic organization affiliated with Emory, agreed to endow a new chair in Catholic studies. Emory selected Mark Jordan of the University of Notre Dame for the post. But the board of the Aquinas Center objected, according to Emory faculty members and Victor Kramer, a former Aquinas board member and executive director. Prof. Jordan is homosexual and wrote a critical history of Catholicism's attitude toward sodomy.

Emory shifted Prof. Jordan to a university-funded position in religion that wasn't specific to Catholicism, according to Mr. Kramer and Barbara DeConcini, who headed the faculty search committee. Plans for the chair were shelved. An Emory spokeswoman says the center was concerned it might not be able to afford the gift.

The school of religion at Claremont Graduate University, a private institution in Claremont, Calif., has raised $2.5 million, pledged primarily by California Muslims, for a new endowed professorship in Islamic studies. It hired a Muslim last year to fill it. Claremont has plans to raise funds for at least seven more religious chairs -- in Mormonism, Hinduism, Zoroastrianism, Catholicism, Protestantism, Judaism and Coptic Orthodoxy.

For each position, Claremont has established an advisory council composed mainly of believers. Councils are expected to raise funds and have a voice in hiring via a representative on the search committee. "We don't want any bomb-throwers" in the chairs, says Karen Torjesen, dean of Claremont's religion school.

Emory's Prof. DeConcini, who is also executive director of the American Academy of Religion, the main association of professors in the field, says Claremont's approach "is potentially fraught with difficulties for academic freedom." Claremont officials say they are preserving academic freedom because the university, not the search committee, makes the final hiring decision.

Harvard University's divinity school is close to filling a professorship in evangelical theological studies funded by Alonzo L. McDonald, an evangelical Christian and former White House staff director who runs a Michigan investment group. Mr. McDonald says the scholar should be "understanding and empathetic" toward evangelical traditions. Harvard's general counsel advised the school that it cannot legally ask job applicants about their religious beliefs. The 1964 Civil Rights Act bans religious discrimination in hiring at secular schools.

The school's faculty recently recommended hiring a specialist in evangelical history whose work is unlikely to ruffle the faithful, say faculty members.

Larger Presence

Mormon studies are growing in popularity as the church expands. It now boasts 5.6 million members in the U.S. and 12.5 million world-wide. Mormons are becoming a larger presence at secular universities now that church-run BYU has capped its enrollment because of limited resources.

Like many minority religious groups, Mormons have faced a history of prejudice that shapes their identity today. A mob assassinated the faith's founder, Joseph Smith, in 1844 and the federal government hounded Mormons with troops and punitive legislation.

Mr. Quinn's battles with the church and BYU have shadowed his career. Born in Pasadena, Calif., he is a seventh-generation Mormon on his mother's side. She raised him in her faith after his Catholic father divorced her. Mr. Quinn became curious about Mormon history in high school, when a friend gave him a memoir about a Mormon leader who practiced polygamy after the church banned the practice in 1890. "I was jolted by the reality that there could be a public stance and private behavior that contradicted each other," he says.

After graduating from BYU, Mr. Quinn earned his doctorate at Yale, and then joined the BYU faculty in 1976. He buried himself in the church archives, typing thousands of pages of notes that would provide raw material for his articles and books.

Such research ran into head winds in the 1980s as the church restricted access to documents. Boyd Packer, one of the Quorum of the Twelve Apostles that helps rule the church, declared in a 1981 speech that writing and teaching about church history "may be a faith destroyer."

Sensitive Subjects

Mr. Quinn nonetheless published articles on sensitive subjects such as one in 1985 that suggested church leaders tolerated polygamy after officially prohibiting it. He says BYU restricted his research and denied him travel money. In 1988, he resigned from the university. BYU says it didn't force him to go.

Five years later, the president of his Salt Lake City stake -- a Mormon administrative unit composed of five to 10 congregations -- handed Mr. Quinn a letter citing examples of his alleged apostasy. They included his public criticism of the church for limiting dissent and an article maintaining that Joseph Smith treated Mormon women more equally than the church does today. He was soon excommunicated along with four other scholars.

Mr. Quinn's personal life contributed to his estrangement from the church. The father of four was divorced in 1985 and came out publicly as a homosexual in 1996 when he published a book about same-sex friendships and romances in 19th-century Mormonism. The church condemns homosexual behavior. Mr. Quinn says he still believes in the "fundamentals" of Mormonism but doesn't practice the faith.

Supporting himself on research grants and fellowships, Mr. Quinn cemented his scholarly reputation by publishing four books on Mormon history between 1994 and 1998, including a two-volume study of the church's interactions with politics and American society. In 1999, he began pursuing a full-time faculty job, to no avail. Few secular schools at the time sought a specialist in Mormonism.

In 2003, when he was a visiting professor at Yale University, BYU threatened to withdraw funding for a conference it was co-sponsoring with Yale on Mormonism if Mr. Quinn was allowed to speak there, according to the conference's organizer, Kenneth West. Noel Reynolds, a longtime BYU administrator and now a Mormon mission president in Fort Lauderdale, Fla., says the university was concerned that "the conference not be used to promote personalities or personal complaints about the church." Yale officials insisted on the participation of Mr. Quinn, who ultimately resolved the dispute by agreeing to introduce the keynote speaker rather than give a scholarly paper.

The following year, Mr. Quinn was the only finalist for a tenured professorship in Utah and Mormon history at the University of Utah. At Mr. Quinn's request, Thomas Alexander, a BYU historian, wrote a recommendation for him. But while Prof. Alexander praised him as a scholar and teacher in his recommendation, he advised against hiring Mr. Quinn, warning that the Mormon-dominated state legislature might cut the public university's funding.

When Mr. Quinn came to the school's Salt Lake City campus for a job interview, history professor James Clayton hosted a reception for him. Prof. Clayton had been Mr. Quinn's friend for years, and joined him in criticizing church censorship. He describes Mr. Quinn as the second-best historian of Mormonism, behind retired Columbia University professor Richard Bushman.

Nevertheless, when Utah's faculty voted on whether to offer Mr. Quinn the job, Prof. Clayton opposed him. Now retired, he says: "There was a concern by several of us in the department that Mike was not the right person to head up any kind of Mormon history or Mormon studies program given the fact he's very publicly excommunicated. There would be quite a number of people in the Mormon community who would look unfavorably on that. That gave me pause."

Robert Newman, dean of humanities at Utah, says the history department decided against hiring Mr. Quinn because his research presentation wasn't strong enough and most of his books weren't published by university presses. Utah eventually downgraded the opening to an assistant professorship and filled it with an active Mormon church member.

Soon another school beckoned. Arizona State University's department of religious studies recommended to the university administration that Mr. Quinn be offered a one-year appointment for 2004-05. It was starting a doctoral-degree program with a focus on religion in the Americas. Aware that Mr. Quinn was controversial, the faculty took pains to stress to administrators that his scholarship was first-rate, says Tracy Fessenden, a professor of American religions.

A public university with 61,500 students, Arizona State has been cultivating Mormon students and donors -- for example, by letting students resume receiving scholarships after returning from Mormon missionary work, says ASU president Michael Crow. Many of Arizona's Mormons, about 6% of the state's population, are concentrated in the Phoenix area near the university.

Ira Fulton, a Mormon home builder in Prescott, Ariz., has given the school at least $155 million since 2003. Mr. Fulton says the school has 3,700 Mormon students, and "I'd like to have 6,000, 7,000, 8,000 or 10,000. They'll make ASU a better university."

ASU's administration vetoed Mr. Quinn's hiring. Simon Peacock, then associate dean for personnel, says Mr. Quinn lacked expertise to teach Christianity and Judaism courses left uncovered by a professor's departure. Mr. Peacock says Mr. Quinn's excommunication was discussed but had no effect on the decision.

However, the chairman of the religious-studies department, Joel Gereboff, wrote in an email to faculty that Dean Peacock and another dean asked him to review the "risks and benefits" of the hire and "thought that it is probably not wise to undertake such risks" for a one-year appointment. Prof. Gereboff says the deans were referring to the risk of alienating the Mormon community.

Several professors criticized the decision. "What the administration is doing is as wrong as racial or sexual discrimination," James Foard, a religious-studies professor, emailed colleagues. The administrators stood their ground.

Prof. Gereboff says he could "live with" the deans' decision. "We exercise sensitivity. We don't exercise censorship," he says.

Mr. Fulton, the donor, says he doesn't get involved in faculty hiring. He calls Mr. Quinn a "nothing person."

At least three other schools are contemplating chairs in Mormon studies -- Claremont Graduate University, the University of Wyoming and Utah State. At Claremont, the school of religion has nearly completed raising $5 million for a Mormon studies chair to be named after Howard W. Hunter, a late president of the church. Nearly all the money has come from Mormon businessmen in the state, the school says. Prof. Torjesen, the religion-school dean, traveled to church headquarters in Salt Lake City to build rapport with church leaders. The school's Mormon-studies advisory council includes two BYU professors among its dozen members.

Claremont says it prefers that the holder of the chair have access to church archives in Salt Lake City, a privilege sometimes denied dissidents. Mr. Quinn's access, withdrawn on his excommunication, was restored in 1997 and the church has made more documents available in recent years. Asked whether Mr. Quinn might be hired, Claremont's associate dean of religion, Patrick Horn, replies: "Probably not."

At Wyoming, where Mormons comprise about 10% of students, a committee headed by a professor of Spanish, Kevin Larsen, is exploring a Mormon-studies professorship. Mr. Larsen, himself a Mormon bishop, says he wouldn't rule out critics of the faith for such a post. But he says he has explained to church leaders that "it's not going to be a chair of anti-Mormon studies."

Wyoming is also sponsoring a lecture series on Mormonism. Prof. Larsen says the local Mormon stake provided several hundred dollars for the lectures through a Mormon student group.

Utah State has attracted more than 50 donors, most of them Mormons, for a professorship in Mormon history. History chairman Norman Jones says it's premature to discuss job candidates. He says the university will look for "a person who can get along with everybody. We know what the minefields are, and we're trying to avoid them."

Mr. Quinn says his only significant income since leaving Yale was a $40,000 bequest from a Los Angeles doctor, contingent on his writing a biography of his late benefactor. So far, he has received $15,000, with the balance to come when the book is finished.

In the meantime, Mr. Quinn sleeps on a futon in his mother's condominium and says he can't afford health insurance, car repairs or Internet access. His library of books on Mormon and American social history lies boxed up in her garage and closets.

from City Journal, 2006-Winter, by Brian C. Anderson:

The Plot to Shush Rush and O’Reilly

Talk radio, cable news, and the blogosphere freed U.S. political discourse. The Left wants to rein it in again.

The rise of alternative media—political talk radio in the eighties, cable news in the nineties, and the blogosphere in the new millennium—has broken the liberal monopoly over news and opinion outlets. The Left understands acutely the implications of this revolution, blaming much of the Democratic Party’s current electoral trouble on the influence of the new media’s vigorous conservative voices. Instead of fighting back with ideas, however, today’s liberals quietly, relentlessly, and illiberally are working to smother this flourishing universe of political discourse under a tangle of campaign-finance and media regulations. Their campaign represents the most sustained attack on free political speech in the United States since the 1798 Alien and Sedition Acts. Though Republicans have the most to lose in the short run, all Americans who care about our most fundamental rights and the civic health of our democracy need to understand what’s going on—and resist it.

The most imminent danger comes from campaign-finance rules, especially those spawned by the 2002 McCain-Feingold Campaign Reform Act. Republican maverick John McCain’s co-sponsorship aside, the bill passed only because of overwhelming Dem support. It’s easy to see why liberals have spearheaded the nation’s three-decade experiment with campaign-finance regulation. Seeking to rid politics of “big-money corruption,” election-law reforms obstruct the kinds of political speech—political ads and perhaps now the feisty editorializing of the new media—that escape the filter of the mainstream press and the academy, left-wing fiefdoms still regulation-free. Campaign-finance reform, notes columnist George Will, by steadily expanding “government’s control of the political campaigns that decide who controls government,” advances “liberalism’s program of extending government supervision of life.”

The irony of campaign-finance reform is that the “corruption” it targets seems not to exist in any widespread sense. Studies galore have found little or no significant influence of campaign contributions on legislators’ votes. Ideological commitments, party positions, and constituents’ wishes are what motivate the typical politician’s actions in office. Aha! reformers will often riposte, the corruption is hidden, determining what Congress doesn’t do—like enacting big gas taxes. But as Will notes, “that charge is impossible to refute by disproving a negative.” Even so, such conspiracy-theory thinking is transforming election law into what journalist Jonathan Rauch calls “an engine of unlimited political regulation.”

McCain-Feingold, the latest and scariest step down that slope, makes it a felony for corporations, nonprofit advocacy groups, and labor unions to run ads that criticize—or even name or show—members of Congress within 60 days of a federal election, when such quintessentially political speech might actually persuade voters. It forbids political parties from soliciting or spending “soft money” contributions to publicize the principles and ideas they stand for. Amending the already baffling campaign-finance rules from the seventies, McCain-Feingold’s dizzying dos and don’ts, its detailed and onerous reporting requirements of funding sources—which require a dense 300-page book to lay out—have made running for office, contributing to a candidate or cause, or advocating without an attorney at hand unwise and potentially ruinous.

Not for nothing has Supreme Court Justice Clarence Thomas denounced McCain-Feingold’s “unprecedented restrictions” as an “assault on the free exchange of ideas.”

Campaign-finance reform has a squeaky-clean image, but the dirty truth is that this speech-throttling legislation is partly the result of a hoax perpetrated by a handful of liberal foundations, led by the venerable Pew Charitable Trusts. New York Post reporter Ryan Sager exposed the scam when he got hold of a 2004 videotape of former Pew official Sean Treglia telling a roomful of journalists and professors how Pew and other foundations spent years bankrolling various experts, ostensibly independent nonprofits (including the Center for Public Integrity and Democracy 21), and media outlets (NPR got $1.2 million for “news coverage of financial influence in political decision-making”)—all aimed at fooling Washington into thinking that Americans were clamoring for reform, when in truth there was little public pressure to “clean up the system.” “The target group for all this activity was 535 people in Washington,” said Treglia matter-of-factly, referring to Congress. “The idea was to create an impression that a mass movement was afoot—that everywhere they looked, in academic institutions, in the business community, in religious groups, in ethnic groups, everywhere, people were talking about reform.”

Treglia urged grantees to keep Pew’s role hush-hush. “If Congress thought this was a Pew effort,” he confided, “it’d be worthless. It’d be 20 million bucks thrown down the drain.” At one point, late in the congressional debate over McCain-Feingold, “we had a scare,” Treglia said. “George Will stumbled across a report we had done. . . . He started to reference the fact that Pew was playing a large role . . . [and] that it was a liberal attempt to hoodwink Congress. . . . The good news, from my perspective, was that journalists . . . just didn’t care and nobody followed up.” The hoaxers—a conspiracy of eight left-wing foundations, including George Soros’s Open Society Institute and the Ford Foundation—have actually spent $123 million trying to get other people’s money out of politics since 1994, Sager reports—nearly 90 percent of the spending by the entire campaign-finance lobby over this period.

The ultimate pipe dream of the reformers is a rigidly egalitarian society, where government makes sure that every individual’s influence over politics is exactly the same, regardless of his wealth. Scrutinize the pronouncements of campaign-finance reform groups like the Pew-backed Democracy 21, and you’ll see how the meaning of “corruption” morphs into “inequality of influence” in this sense. This notion of corruption—really a Marxoid opposition to inequality of wealth—would have horrified the Founding Fathers, who believed in private property with its attendant inequalities, and who trusted to the clash of factions to ensure that none oppressed the others. The Founders would have seen in the reformers’ utopian schemes, in which the power of government makes all equally weak, the embodiment of tyranny.

To eradicate “corruption,” leading theorists of campaign-finance reform, such as Ohio State University law professor (and former Ohio state solicitor) Edward Foley, Loyola law prof Richard Hasen, and radical redistributionist philosopher Ronald Dworkin, want to replace privately financed campaigns with a system in which government would guarantee “equal dollars per voter,” as Foley puts it, perhaps by giving all Americans the same number of political “coupons,” which they could then redeem on the political activities of their choice. This super-powerful government would ban all other political expenditures and require all political groups to get operating licenses from it, with stiff criminal penalties for violators. The experts have even started calling for draconian media restrictions to achieve their egalitarian aims. In Foley’s view, the chilling of speech is “the necessary price we must pay in order to have an electoral system that guarantees equal opportunity for all.” But when these experts pen law-review articles with titles like “Campaign Finance Laws and the Rupert Murdoch Problem,” you know it isn’t the New York Times or CBS News that they have in mind.

Campaign-finance reform now has the blogosphere in its crosshairs. When the Federal Election Commission wrote specific rules in 2002 to implement McCain-Feingold, it voted 4 to 2 to exempt the Web. After all, observed the majority of three Republicans and one Democrat (the agency divides its seats evenly between the two parties), Congress didn’t list the Internet among the “public communications”—everything from television to roadside billboards—that the FEC should regulate. Further, “the Internet is virtually a limitless resource, where the speech of one person does not interfere with the speech of anyone else,” reasoned Republican commissioner Michael Toner. “Whereas campaign finance regulation is meant to ensure that money in politics does not corrupt candidates or officeholders, or create the appearance thereof, such rationales cannot plausibly be applied to the Internet, where on-line activists can communicate about politics with millions of people at little or no cost.”

But when the chief House architects of campaign-finance reform, joined by McCain and Feingold, sued—claiming that the Internet was one big “loophole” that allowed big money to keep on corrupting—a federal judge agreed, ordering the FEC to clamp down on Web politics. Then-commissioner Bradley Smith and the two other Republicans on the FEC couldn’t persuade their Democratic colleagues to vote to appeal.

The FEC thus has plunged into what Smith calls a “bizarre” rule-making process that could shackle the political blogosphere. This would be a particular disaster for the Right, which has maintained its early advantage over the Left in the blogosphere, despite the emergence of big liberal sites like Daily Kos. Some 157 of the top 250 political blogs express right-leaning views, a recent liberal survey found. Reaching a growing and influential audience—hundreds of thousands of readers weekly (including most journalists) for the top conservative sites—the blogosphere has enabled the Right to counter the biases of the liberal media mainstream. Without the blogosphere, Howell Raines would still be the New York Times’s editor, Dan Rather would only now be retiring, garlanded with praise—and John Kerry might be president of the U.S., assuming that CBS News had gotten away with its last-minute falsehood about President Bush’s military service that the diligent bloggers at PowerLine, LittleGreenFootballs, and other sites swiftly debunked.

Are the hundreds of political blogs that have sprouted over the last few years—twenty-first-century versions of the Revolutionary era’s political pamphlets—“press,” and thus exempt from FEC regulations? Liberal reform groups like Democracy 21 say no. “We do not believe anyone described as a ‘blogger’ is by definition entitled to the benefit of the press exemption,” they collectively sniffed in a brief to the FEC. “While some bloggers may provide a function very similar to more classical media activities, and thus could reasonably be said to fall within the exemption, others surely do not.” The key test, the groups claimed, should be whether the blogger is performing a “legitimate press function.” But who decides what is legitimate? And what in the Constitution gives him the authority to do so?

A first, abandoned, draft of proposed FEC Web rules, leaked to the RedState blog last March, regulated all but tiny, password-protected political sites, so bloggers should be worried. Without a general exemption, political blogs could easily find themselves in regulatory hell. Say it’s a presidential race, Condi Rice versus Hillary Clinton. You run a wildly opinionated and popular group blog—call it No to Hillary—that rails daily about the perils of a Clinton restoration and sometimes republishes Rice campaign material. Is your blog making “contributions” to Rice? Maybe. The FEC says that a “contribution” includes “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office” (my italics). If your anti-Hillary blog spends more than $1,000, you could also find it re-classified as a “political committee.” Then you’ve got countless legal requirements and funding limits to worry about.

In such a regulated Web-world, bloggers and operators of political sites would have to get press exemptions on a case-by-case basis. The results, election-law expert Bob Bauer explains, would be “unpredictable, highly sensitive to subtle differences in facts, and to the political environment of the moment.” Even when the outcome is happy, says Bauer, “a favorable result is still an act of noblesse oblige by a government well aware that if it turns down a request, the disappointed applicant is left with litigation as the only option.”

Sites would live in fear of Kafkaesque FEC enforcement actions, often triggered by political rivals’ complaints. “If the matter is based on a complaint,” notes former FEC counsel Allison Hayward, “the ‘respondent’ will receive a letter from the FEC with the complaint and will be asked to show why the FEC shouldn’t investigate.” An investigation involves “the usual tools of civil litigation—document requests, depositions, briefs, and the like.” The outcome can take months “or longer” to determine, says Hayward. “If a complaint is filed against you, there will be a flurry of activity while you respond, then perhaps silence—then another letter will arrive and you will be required to respond promptly, then maybe nothing again for months.” Most political bloggers aren’t paid “professional” reporters or commentators but just democratic citizens with day jobs who like to exercise their right to voice their opinions. If doing so without a lawyer puts them or their families at risk, many will simply stop blogging about politics—or never start.

If you think such fretting is silly, says Bradley Smith, consider the case of Bill Liles, who faced an FEC inquiry when Smith was commissioner. In 2000, a businessman in the little Texas town of Muleshoe, Harvey Bass, painted save our nation: vote democrat al gore for president on a beat-up box and plunked it on his furniture store’s porch. Sick of looking at it, Liles and a friend pasted a “bigger and better” poster praising W. on a trailer and parked it right across from Bass’s store. This was too much for another local, Don Dyer, who complained to the FEC that Liles’s sign lacked mandated disclosures about who paid for it and whether Bush had signed off on it.

Though the FEC in the end let Liles and his fellow activists off, the men had in fact broken not just disclosure rules but any number of other regulations, too, recalls Smith. They had clearly spent a bit more than $250 on their makeshift sign, for example, but hadn’t reported it, as required, to the FEC. “Total statutory penalties could have easily exceeded $25,000,” Smith observes. How different is Liles’s praiseworthy activism from that of many political bloggers? The medium differs, but Liles, like a blogger, is simply voicing his opinion. And this was pre-McCain-Feingold.

Even if the FEC starts by regulating only a little bit of Web politics, instead of the extensive oversight it had at first planned—and a laxer regime is likelier, thanks to the fierce outburst from political blogs, right and left, when they discovered their freedom of speech under fire—there’s no guarantee that the commission won’t steadily expand its reach later. “If the history of campaign finance regulation is any guide,” notes Commissioner Toner, “once the FEC exercises jurisdiction over the Internet, the Commission’s initial set of regulations, even if narrowly tailored, are likely to lead to broader regulation in the future.” Right after McCain-Feingold became law, co-sponsor Senator Russ Feingold opined: “It is only a beginning. It is a modest reform. . . . There will be other reforms.” Most campaign-finance reformers share that regulate-to-the-max outlook, aiming—swiftly or incrementally—to close all the loopholes.

Recognizing that McCain-Feingold is out of control, liberty-minded Texas Republican Jeb Hensarling introduced the Online Freedom of Speech Act (HR 1606) in the House last April. (Harry Reid has sponsored identical legislation in the Senate, showing that not all Democrats are lost on the issue.) The bill reinforces the Internet’s current regulation-free status by excluding blogs and various other Web communications from campaign-finance strictures. Brought to an expedited vote under special rules that required a two-thirds majority in early November, the bill—opposed strenuously by the campaign-finance reform “movement”—failed. “Today’s action marks a sad day for one of our nation’s most sacred rights: freedom of speech,” reflected House Speaker Dennis Hastert. “The last thing this Congress should be doing is trying to stifle public debate online.”

The House Democrats torpedoed HR 1606, but they had surprising help from about three dozen Republicans. Why did so many normally staunch opponents of campaign-finance speech restrictions shift camp? One possible explanation, perhaps cynical: it’s hard to unseat incumbents, given their advantages of name recognition, free media exposure, and an easier time raising donations. If they can make it harder for their rivals to speak, which campaign-finance rules help them to do, the challenger’s task gets harder still. (Notably, after Congress began campaign-finance restrictions in the seventies, incumbency rates began to rise.) Once in office, some Republicans may suddenly like McCain-Feingold’s power to shield them from criticism—including on the Web.

It’s not just the blogosphere that’s at risk. The Left has also begun to use campaign-finance reform—not McCain-Feingold but equally onerous state regulations—to try to shush political talk radio. The oldest of the new media—Rush Limbaugh went national around 15 years ago—political talk radio is the Right’s dominion. Not one of the top 20 nationally syndicated political shows features a left-of-center host, and right-leaning radio talkers outnumber liberals three to one. Over 40 percent of Americans tune in at least occasionally to this extremely influential medium, and over 20 percent use it as a primary source of political information. Given the Left’s continuing inability to compete on the dial—its much-ballyhooed Air America doesn’t even register in the Arbitron ratings in some markets—its preferred strategy in the future likely will be to force conservatives like Rush Limbaugh and William Bennett off the air.

Consider what’s going on in Washington State as an early warning. Early in 2005, the Democrat-controlled legislature passed—and Democratic governor Christine Gregoire signed—a bill boosting the state’s gasoline tax a whopping 9.5 cents per gallon over the next four years, supposedly to fund transportation projects. Thinking that their taxes were already plenty high and that the state’s notoriously corrupt Transportation Department would just squander the gas-tax revenues (millions on enviro-friendly wildlife overpasses, for instance, but little on new roads), some citizens organized an initiative campaign, as Washington law allows, to junk the new levy: No New Gas Tax.

Two popular conservative talk radio hosts, Kirby Wilbur and John Carlson, explained why the gas tax was bad news and urged listeners to sign the 225,000 petitions necessary to get the rollback initiative on the November ballot, though they played no official role in the campaign and regularly featured on their shows defenders as well as opponents of the tax hike. With the hosts’ help, the petition drive got almost twice the needed signatures, but the ballot initiative, strongly opposed by labor unions, the state’s liberal media, environmental groups, and other powerful interests, narrowly lost.

Meantime, however, a group of pro-tax politicians sued No New Gas Tax, arguing that Wilbur’s and Carlson’s on-air commentaries were “in-kind contributions” and that the anti-tax campaign had failed to report them to the proper state authorities. The suit sought to stop NNGT from accepting any more of these “contributions” until it disclosed their worth—though how the initiative’s organizers could control media discussions or calculate their monetary value remained unclear. The complaint also socked NNGT with civil penalties, attorneys’ fees and costs, and other damages. Even more offensively, to litigate the suit the politicians hired a private law firm, Foster Pepper & Shefelman, which serves as bond counsel to Washington State. The firm, which represents unions, hospitals, and retirement funds among its other clients, could thus clean up from the state’s plan to sell gas-tax-backed bonds. Appearance of corruption, anyone?

The real target of the suit was clearly Wilbur and Carlson, or, more accurately, their corporate employer, Fisher Communications. If NNGT received the “contributions,” that meant Fisher had sent them by broadcasting Wilbur’s and Carlson’s support for the initiative. Washington law limits contributions in the last three weeks of a political campaign to $5,000. Depending on how one measured the dollar worth of on-air “contributions,” Fisher could thus face big fines and criminal sanctions if it let Wilbur and Carlson keep talking about the gas tax. “Thankfully, Fisher assured us that we could keep talking about the subject on the air, and we did,” Wilbur says. The judge ruled in favor of the pro-tax pols, though he finessed the $5,000 limitation problem by ruling only on the “contributions” that occurred prior to the campaign’s last three weeks.

The Institute for Justice, a libertarian legal defense group, has entered the fray, filing both an appeal to the Washington Supreme Court and a counterclaim against the politicians behind the suit. “I think this case presents a substantial issue under the First Amendment,” institute attorney Bill Maurer explained. “This is one of the most important cases nationally about the right of the press to speak freely, without the interference of the government or regulation of the government—because the power to regulate is the power to suppress.” Should the appeal lose, the days of political talk radio could be over not only in Washington State but everywhere. “McCain-Feingold could definitely be used in the same fashion,” Maurer tells me. “In fact, the prosecutors in this case say McCain-Feingold permits them to do this. But pretty much any state that has campaign-finance laws that restrict contributions is subject to this abuse, too.”

All this massively begs the question: Why should any American need government permission to express himself? Instead of a media exemption, blogger Glenn Reynolds sarcastically commented at a recent conference, maybe we need a “free speech exception, in which you are allowed to say what you want about political candidates without fear of prosecution by the government.”

You’d think that the Supreme Court would have rescued the new media—and the nation—from all this regulatory tyranny. President Bush reportedly agreed not to veto McCain-Feingold only because he was sure the Court would do it for him and he could thereby avoid riling up McCain. After all, the language of the First Amendment is unambiguous: “Congress shall make no law . . . abridging the freedom of speech, or of the press.” The Court has extended First Amendment free-speech protection in recent years to nude dancing, animated online kiddie porn, flag burners, tobacco ads, and cross burners. For its original architects, of course, the First Amendment’s chief aim was to protect political speech—the right to criticize the government. The notion that government could restrict the speech of some—which is what campaign-finance rules do—would have been the very definition of unconstitutional tyranny for men like Samuel Adams or James Madison. How could the Supremes not stop the campaign-finance juggernaut?

Yet the Court’s 5-to-4 McConnell ruling approved almost all of McCain-Feingold. The 2003 decision shocked many, but the Court’s “evolving” jurisprudence in the area of campaign finance should have made it not all that surprising. For the last three decades, the Supreme Court has chopped steadily away at constitutional protection for political speech when campaign finance is at issue. In its 1974 Buckley decision, the Court took the first, disastrous step by authorizing the “balancing” of free speech concerns with the “governmental interest” in preventing “the actuality and the appearance of corruption.”

The balancing idea has become a liberal commonplace, expressed bluntly by former Democratic House minority leader Richard Gephardt a few years ago: “What we have is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy.” But as commentator Thomas Sowell retorted, whatever Gephardt’s definition of a healthy campaign is, “it is not part of the Constitution of the United States—and free speech is.” In fact, it is the bedrock of our healthy democracy.

Buckley’s loose language is troubling, too. “The ‘appearance of corruption’ can mean anything,” says former FEC commissioner Smith. “If the ‘appearance of corruption’ is sufficient to justify regulation, the practical effect is to eliminate the need for the government to show any justification for the regulation in question.” In fact, even John McCain, now incorruptible after his involvement as one of the scandalous Keating Five, could appear corrupt. Several aides from his 2000 presidential run, including his former campaign manager, press secretary, finance director, and legal counsel have been working for the Reform Institute, a nonprofit group dedicated to (you guessed it) campaign-finance reform—though it primarily seems to be the 2008 McCain-for-President campaign-in-waiting. Some months back, when Cablevision sought approval for a pricing change from the Senate Commerce Committee, then chaired by McCain, the company developed a sudden interest in campaign-finance reform and gave the Reform Institute a $200,000 “soft” donation. Looks fishy, no?

Making matters worse, the Supreme Court’s 1990 Austin decision redefined “corruption” to mean not just the exchange of political favors for money—seemingly Buckley’s view, though the Court’s opinion is vague—but also “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” In other words, the Supremes fully embraced the Inequality = Corruption thinking of the campaign-finance reformers. If corporations had or appeared to have too much influence, government could now stamp out this “corruption” by shutting them up, as McCain-Feingold has done, rather than by the checks and balances of faction against faction, as the Founders envisioned.

In his powerful McConnell dissent, Clarence Thomas spelled out “the chilling endpoint” of the Court’s reasoning: “outright regulation of the press”—exactly what the campaign-reform theorists ultimately seek. “Media companies can run pro-candidate editorials as easily as nonmedia corporations can pay for advertisements,” Thomas explained. “Media corporations are influential. There is little doubt that the editorials and commentary they run can affect elections.” The Supreme Court has found little to distinguish media and non-media corporations. Asked Thomas: “What is to stop a future Congress from determining that the press is ‘too influential,’ and that the ‘appearance of corruption’ is significant when media organizations endorse candidates or run ‘slanted’ or ‘biased’ news stories in favor of candidates or parties?” Answer: Nothing. “Although today’s opinion does not expressly strip the press of First Amendment protection,” Thomas warned, “there is no principle of law or logic that would prevent the application of the Court’s reasoning in that setting. The press now operates at the whim of Congress.”

Perhaps the liberal mainstream media will stop cheering campaign-finance reform when they realize their First Amendment rights are at stake, too.

Though campaign-finance madness is the Number One regulatory threat to the new media, it’s not the only one. The Left is now pushing Congress to restore the Fairness Doctrine, which would kill talk radio and possibly conservative-friendly Fox News, too.

For those who don’t remember, the Federal Communications Commission’s Fairness Doctrine, formalized in the late forties but dating back to 1929, required radio and then broadcast television stations to cover “vitally important controversial issues of interest in the community served by the broadcaster” and to provide “opportunity for the presentation of contrasting viewpoints on such issues”—what came to be known as the “equal time” rule. Any broadcaster who didn’t follow these regulations could face fines, free time given to voices that federal regulators felt hadn’t gotten fair treatment, and even loss of operating license. Concern that particular partisan views could dominate what was then a very limited broadcast spectrum, which government felt it had to parcel out with the public interest in mind, drove this meddling. But politicians and advocacy groups frequently used (or abused) the Fairness Doctrine to go after their political enemies, as one former Kennedy administration official acknowledged: “Our massive strategy was to use the Fairness Doctrine to challenge and harass the right-wing broadcasters, and hope that the challenges would be so costly to them that they would be inhibited and decide it was too costly to continue.”

The doctrine made it hard to program political talk radio in today’s Rush Limbaugh–Sean Hannity sense—boisterously opinionated, unafraid to name names, informative, and, if you disagree with the host’s politics, infuriating. If a station ran a show like Limbaugh’s, drawing upward of 20 million listeners a week, it would also have to run a lefty alternative, even if—as has been the case with ratings-challenged Air America in some markets—it can’t get any sponsors. Too risky, most radio execs concluded, and kept opinion programs off the air. In 1980, talk shows of any kind numbered fewer than 100 nationwide.

All that changed in the eighties, when Ronald Reagan’s free-market-minded FCC stopped enforcing the Fairness Doctrine and then dumped it entirely in 1987. Because cable and satellite television and FM radio had vastly expanded the number of television and radio stations, “the new technological abundance,” in regulatory theorist Peter Huber’s phrase, had robbed the doctrine of any plausible “scarcity” rationale.

That the doctrine was also “chilling to free speech,” as FCC head Mark Fowler argued, became crystal clear after it was gone: AM radio exploded with political talk shows. From under 5 percent of all programming, “informational” programming expanded to over 20 percent of the AM mix just seven years after the Fairness Doctrine’s demise. Today, more than 1,400 stations feature the talk format exclusively—and the vast majority broadcast conservative voices, because that’s what draws the listeners, desperate for an alternative to the liberal mainstream press.

Small wonder, then, that House Democrats proposed two bills in 2005 to bring the Fairness Doctrine back—and as a law, rather than a mere agency regulation. New York Democratic representative Louise Slaughter, who introduced the first of the two bills, says that Right-ruled radio is a grave threat to American freedoms, “a waste of good broadcast time, and a waste of our airwaves.” People “may hear whatever they please and whatever they choose,” she tells PBS’s Bill Moyers, in a statement as incoherent as it is illiberal. “And of course they have the right to turn it off. But that’s not good enough either. The fact is that they need the responsibility of the people who are licensed to use our airwaves judiciously and responsibly to call them to account if they don’t.” In other words, people can’t be trusted with freedom but need the supervision of a paternalist government.

Slaughter doesn’t want to re-regulate only radio. When asked by Moyers if she was also proposing the new Fairness Doctrine for Fox News or MSNBC, Slaughter responded: “You bet. . . . Fairness isn’t going to hurt anybody.” If there’s anything liberals hate more than talk radio it’s Fox News, which has dominated cable news by appealing to conservative viewers fed up with the networks’ liberal bias. New York Democratic representative Maurice Hinchey, sponsor of the second Fairness Doctrine bill, went so far as to host a special Capitol Hill screening of Outfoxed: Rupert Murdoch’s War on Journalism, a “documentary” hit job. Slaughter, Hinchey, Vermont socialist Bernie Sanders, Washington State congressman Jay Inslee, and several other House lefties have recently formed the Future of American Media Congress to push for a media crackdown.

It’s easy to dismiss the Orwellian policy prescriptions of small-fry like these. But look who else has been talking about the Fairness Doctrine:

“There has been a profound and negative change in the relationship of America’s media with America’s people,” John Kerry told the Boston Globe’s Thomas Oliphant after losing the 2004 presidential race. “We learned that the mainstream media, over the course of the last year, did a pretty good job of discerning,” he said, inaccurately. “But there’s a . . . sub-media that talks and keeps things going for entertainment purposes rather than for the flow of information,” he complained. “This all began, incidentally, when the Fairness Doctrine ended,” Kerry maintained. “You would have had a dramatic change in the discussion in this country had we still had a Fairness Doctrine in the course of the last campaign.”

Former vice president and Democratic standard-bearer Al Gore, in an overheated October speech bemoaning the purported hollowing out of the American “marketplace of ideas,” blamed it in part on the repeal of the Fairness Doctrine, after which “Rush Limbaugh and other hate-mongers began to fill the airwaves.” And here’s current Democratic Party chair Howard Dean, in a 2003 interview railing against Rupert Murdoch: “I believe we need to re-regulate the media . . . so we can be sure that the American people get moderate, conservative, and liberal points of view.” Dean noted that he wouldn’t need legislation to do this—he could just appoint “different kinds of people” to the FCC.

Finally, in early 2005, an online petition drive called for Americans to “renew the Fairness Doctrine.” The imbalance favoring conservative media voices, especially in talk radio, the petition argued, “results in issues of public importance receiving little or no attention, while others are presented in a manner not conducive to listeners’ receiving the facts and range of opinions necessary to make informed decisions.” One of the three sponsors of this paternalistic document: Media Matters for America, a left-wing press watchdog group, founded by conservative-turned-lefty David Brock, with help from ex–Clinton advisor John Podesta.

These aren’t marginal figures; they’re the heart of today’s Democratic Party. Their calls for reform rest on a preposterous claim: that “media consolidation” has led to a sharp narrowing in the range of viewpoints available to the American people. In an era of newspapers, magazines, books, broadcast radio and television, cable and satellite television, and the Internet—now joined by satellite radio, podcasts, and even newer forms of “technological abundance”—the involved citizen has never had more information, more debate, more ideas from all political perspectives at his fingertips. What’s really happening is that the Left, having lost its media monopoly, has had trouble competing in a true “marketplace of ideas” and wants to shut that marketplace down.

If the Dems take back Congress or the White House, watch out. Nothing would please them more than to drag the country back to the good old days, when liberals didn’t have to put up with Rush Limbaugh and Laura Ingraham and Bill O’Reilly and Matt Drudge and the countless other upstarts recasting our public debate.

The Right—joined by free-speech defenders from across the political spectrum—needs to defeat the liberal regulatory threat before it does real damage to Americans’ rights to express their political views. President Bush should strongly back Hensarling’s Online Freedom of Speech Act, whose sponsors may reintroduce it soon in the House under regular rules, which require only a simple majority to pass it. Showing that he gets it, the president has just nominated three reportedly liberty-minded lawyers to fill FEC vacancies, including Robert Lenhard, part of the legal team that challenged McCain-Feingold’s constitutionality. One campaign-finance reform group described the Lenhard pick as “beyond disappointing”: excellent news for free-speech fans.

In deciding two campaign-finance reform cases in the months ahead, the Roberts Court, one hopes, will show greater enthusiasm for First Amendment protection of political speech than did its predecessor, which should have shot down McCain-Feingold. If neither Congress nor the Supreme Court repeals this unconstitutional, un-American travesty, we can expect election regulations, in the grim words of Justice Antonin Scalia’s McConnell dissent, “to grow more voluminous, more detailed, and more complex in the years to come—and always, always, with the objective of reducing the excessive amount of speech.” Thus will our most effective real protection against “the actuality and appearance of corruption”—the First Amendment itself—be nullified.

Lovers of liberty should expose calls to restore the Fairness Doctrine for the fraudulent power-grab that they plainly are. And the Right, in particular, needs to understand how much it has benefited from a deregulated media universe. It should be confident that it has the right ideas, and that when it gets the chance to present them directly to the American people—as the new media have allowed it to do—it will win the debate.

from the Los Angeles Times, 2006-Apr-5, by Claire Hoffman:

Blockbuster.com Is Sued by Netflix
The online movie-rental pioneer, citing patent infringement, asks a court to shut its newer rival and order damages.

The largest mail-order movie-rental service sued the world's largest video-rental chain Tuesday saying, in essence, that when it comes to no late fees, imitation isn't flattering.

Netflix Inc. accused Blockbuster Inc. of patent infringement, alleging that its online site Blockbuster.com illegally copied Netflix's method of allowing customers to order videos over the Internet.

Netflix asked a federal judge in San Francisco to shut down the 20-month-old Blockbuster.com. It also seeks unspecified damages.

Among the Netflix innovations that Blockbuster allegedly copied: no late fees on movie rentals, allowing customers to get a new DVD as soon as they return one, and the online dynamic queue — a wish list for movies that subscribers can use to prioritize which films they want when.

"It seems obvious because Netflix has made it obvious," said Steve Swasey, a spokesman for Netflix, which was founded in 1999. "We've filed suit to protect our invention. Netflix has built a better mousetrap and Blockbuster copied it."

A spokesman for Blockbuster said the company had not yet been served with court papers so it could not comment.

Based in Los Gatos, Calif., Netflix has steadily increased the number of its customers, reaching 4.2 million by the end of 2005. Subscribers pay a monthly service fee for unlimited movie rentals, choosing from about 55,000 titles including Hollywood action flicks and foreign-made cult films.

Sending out 7 million movies a month, the company is one of the U.S. Postal Service's highest volume customers.

Netflix holds two U.S. patents for its business method. The first, granted in 2003, covers the way Netflix customers select and receive several movies at a time, and then return them for more titles.

The second, issued Tuesday, "covers a method for subscription-based online rental that allows subscribers to keep the DVDs they rent for as long as they wish without incurring any late fees, to obtain new DVDs without incurring additional charges and to prioritize and reprioritize their own personal dynamic queue," the lawsuit said.

Blockbuster began its online rental service in August 2004. Like Netflix, its most popular plan is $17.99 a month, for three movies at a time. By the end of 2005, the Dallas-based company said it had about 1.2 million subscribers.

Blockbuster said last month that it hoped to increase its online customers to 2 million by the end of this year. At the same time it plans to close between 100 and 150 of its stores. Blockbuster posted a net loss of $588.1 million for 2005.

Netflix reported $41.9 million net income for 2005.

One expert in patent infringement said the case was similar to other suits in recent years that have dealt with unique ideas created for doing business online.

"With business method patents, we once again see how the courts and the laws struggle with emerging technology," said Pamela Banner Krupka, whose private Los Angeles-based practice specializes in patent work.

Shares for Blockbuster fell 8 cents, or 2.1%, to $3.80. Netflix shares closed down 72 cents to $27.41.

from WorldNetDaily, 2006-Apr-13:

Comedy Central censors Muhammad image
But 'South Park' episode depicts Jesus defecating on Bush, flag

The Comedy Central television network barred its popular "South Park" series from showing an image of the Islamic prophet Muhammad in last night's episode but allowed a scene in which an image of Jesus Christ defecates on President Bush and the American flag.

Earlier today, conservative weblogs speculated about whether the episode's reference to censorship was part of the edgy cartoon show's gag, but a Comedy Central spokesman told Stephen Spruiell of National Review's Media Blog the network itself made the decision to not show the image.

The network issued a statement, saying: "In light of recent world events, we feel we made the right decision."

In the second of a two-part episode, creators Matt Stone and Trey Parker played on the Danish newspaper's publishing of caricatures of Muhammad, which sparked widespread rioting by Muslims earlier this year who considered it blasphemy.

In last night's episode, "South Park" character Kyle tries to convince a Fox network executive to air, uncensored, an episode of "Family Guy" that includes an image of Muhammad.

"Either it's all OK, or none of it is," Kyle said. "Do the right thing."

A clip can be viewed here, via Michelle Malkin's weblog.

The executive decides at the last second to show "Family Guy" uncut, but when the controversial scene arrives, the screen goes black with the message, "Comedy Central has refused to broadcast an image of Muhammad on their network."

Then comes the images of Christ, Bush and the flag.

The blog TV Squad commented that this scene was "a clever way of saying that everything and everyone is fair game, not just Muhammad."

"South Park" actually depicted Muhammad, without protest, in a 2001 episode.

Last month, outspoken Scientologist Isaac Hayes, an Oscar-winning singer heard by millions in recent years as the "Chef" character on "South Park," quit the cartoon four months after an episode spoofing Scientology.

"There is a place in this world for satire, but there is a time when satire ends and intolerance and bigotry towards religious beliefs of others begins," the 63-year-old soul singer said in a statement.

"Religious beliefs are sacred to people, and at all times should be respected and honored," he continued, never mentioning the Scientology episode, but citing the recent controversy over cartoon depictions of the prophet Muhammad. "As a civil-rights activist of the past 40 years, I cannot support a show that disrespects those beliefs and practices."

The creators, whose show won a prestigious Peabody award last week, struck back with an episode in which Chef appeared to be killed and then have his brains scrambled by the "Super Adventure Club," which turns members into pedophiles.

William Donohue of the Catholic League for Religious and Civil Rights took aim at Parker and Stone for allowing the network to censor their work in last night's episode.

"The ultimate hypocrite is not Comedy Central – that's their decision not to show the image of Muhammad or not – it's Parker and Stone," Donohue said. "Like little whores, they'll sit there and grab the bucks. They'll sit there and they'll whine and they'll take their shot at Jesus. That's their stock in trade."

(The following articles relate to the Danish cartoons depicting Mohammed. The copy here is care of the University Daily Kansan.)

from Front Page Magazine, 2006-Feb-17, by Abraham H. Miller:

From Cartoons to Chaos

“An eye for an eye; a tooth for a tooth; you respect me; I respect you.” So screams an Islamic marcher in a Paris street demonstration against the right of Danish newspapers to publish cartoons of Mohammed.

The mantra is not quite respect for Western culture and Western values of freedom of speech and the press. It is more accurately translated as: You do what I want, or I'll blow you up!

Amid the demonstrators shouting “Allah Akabar,” stand two young men supporting freedom of the press. One holds a Danish flag; the other holds a sign calling for the right of freedom of the press.

The demonstrators gather around them. Some shout, “We are being provoked.” Others shout, “They wouldn't do this in another demonstration.”

What is patently clear is that the Islamic marchers have no comprehension that the freedom that protects their right to march in the streets of Paris also protects the rights of the two counter demonstrators to protest the Muslim's march. In a free and open society demonstrators and counter-demonstrators share the same right to promulgate their views.

It looks dicey for the two demonstrators. One bearded old man screams the ultimate Islamic insult at them, “Homosexuals!” But cooler heads in the demonstration prevail--after all, the cameras are rolling--and the two courageous young men escape unharmed.

The essence of immigration, until now, has been that when you voluntarily change geography, you also change history and culture. You become part of the culture that you entered. You embrace its institutions. You don't demand that the culture bend to your will and your culture. You are an immigrant. You are not a conqueror.

Muslims who immigrate to the West, and then demand the imposition of Islamic law and Islamic norms, have no respect for their adoptive society. They have arrogated to themselves the right to speak to the West as cultural superiors.

When Muslims demand that the Danish government stop the publication of the offending cartoons and when they boycott Danish products, they impose their notion of collective guilt on all Danes. They hold all Danes responsible for the actions of one paper, and they know full well that in Western society, unlike in most Muslim countries, the government has no control over what papers print.

Compare Islam's response to the cartoons with America's response to the 9-11 attacks. From President Bush on down, the official reaction, as well as that of most Americans, was that it was inconceivable to hold all Muslims responsible for the actions of the terrorists. Indeed, this was the tone struck by many of us asked to speak in public forums after the tragedy. We took pains to make that distinction.

In many ways, the cartoon riots inadvertently tell us more about Islam, and the facile way that anti-Western anger is mobilized in the Islamic world, than they do about the Danish cartoons. The episodes underscore the Islamic world's primitive notion of collective guilt, and how most Western pundits and politicians have been so busy falling over themselves with apologias that they forgot to examine whether indeed Islam does expressly prohibit representations of the prophet.

If so, why is there a carving of Mohammed in the Supreme Court building and why hasn't anyone rioted over it? After all, it has been there on the North Wall since 1935.

There are representations of Mohammed in the Metropolitan Museum of Art (New York), the Bibliotheque Nationale de France (Paris), and the Edinburgh University Library. The riot crowd has its work cut out for it.

Some of the best of Islam's scholars note that there is nothing in the Koran that explicitly condemns the representation of Mohammed. Indeed, the painting of “Book of the Assumption of Mohammed” is considered a great and inspiring work of art and is believed to have been painted my a Muslim artist around 1436 in Heart, Afghanistan. It depicts Mohammed's ascension to heaven, and it hangs in the Bibliotheque Nationale de France.

The cartoons however offensive some Moslems might find them are hardly as offensive as the death, destruction and mayhem of the response to them.

They are hardly as offensive as the cynical manipulation of a people's piety by contemptuous politicians with a very secular political agenda. And, the cartoons are hardly as denigrating as the unflinching, unabashed cowardice of most of the American media, especially the electronic media, which has a long history of exploiting blood, sex and blasphemy in order to achieve ratings.

Suddenly much of the American media has developed religious sensibilities—a development that the Catholic League and most Christian fundamentalists must find astounding in light of the way in which the media will spare no defamation of Christian theology to get a laugh or rationalize the artistic value of a religious icon dunked in urine (see: "Piss Christ") and hung on the wall of a compliant art gallery.

I am convinced that Dr. William Donohue of the Catholic League would find his formidable tasks so much easier if once in a while he could issue a fatwa or mobilize the football team of a Catholic school to impart lessons in street culture to some of the patrons of the arts. But Dr. Donohue of course would never consider such a course of action, for it would be un-Christian.

Christians routinely endure plays, widely reviewed and advertised in our media, in which Jesus is depicted as a bi-sexual or homosexual having affairs with his apostles and causing a spurned Judas to have his unrequited love transformed into vengeance.

Yet, if Christians were reacting to such offenses as Muslims did, there hardly would be a theater, library or museum left standing. Thomas Friedman, of the New York Times, can call fundamentalist Christians “American Jihadists,” but so far I haven't seen Friedman dodging a “fatwa” or sharing a safe house with Salman Rushdie.

A cartoon of Mohammed gives sufficient offense to cause rioting, killing and the invocation of the collective guilt of an entire civilization—ours. Yet, suicide bombings, beheadings, honor murders, and the rest of the cult of violence endemic to the Islamic world call forth no such demonstrations. The cartoons caused Western politicians to convene conversations with both representatives of Islamic countries and the Islamic faith, but where are the similar convocations by Islamic leaders for the daily brutality from its side of the cultural divide?

Indeed, the Islamic world feels no need to apologize for Syria's televised series showing Jews killing a Christian boy and using his blood for baking Passover matzos. The Islamic world routinely refers to Christians and Jews as the offspring of pigs and apes. It actively publishes the Czarist forgery (later used by Hitler) of a Jewish plot to control the world known as the “Protocols of Zion.” It routinely publishes cartoons that reveal the worst kind of racism and bigotry, and it apologies for nothing.

It has yet to tell us why it permits and encourages the murder of Muslims who convert to Christianity but believes it is the obligation of Western, Christian society to permit Muslims to convert Christians to Islam without so much as interference.

If we look at who is orchestrating riots over the cartoon issue, we find people with a very temporal political agenda. In Beirut and Damascus, Syrian Ba'athists, people who worship Karl Marx, fomented the riots. Arrest records from Beirut indicate that it was not piety but rent a rioter that resulted in the large group of Palestinians and Syrians, not Lebanese, who ended up in jail.

The riots are a convenient distraction from the ongoing investigation into Syria's role in the assassination of Lebanon's Prime Minister Rafiq al-Hariri. Indeed, since the riots international pressure on Syria has abated.

Tehran, where little takes place without the approval of its authoritarian government, has also had riots. Tehran blames the Jews for the cartoons and somehow links the crisis to its need for highly enriched uranium so that the oil-saturated country can supposedly generate electricity through nuclear energy. Iranian President Mahmoud Ahmadinejad describes the cartoons as “a blessing from God.”

Hamas has inherited a treasury that appears to have been shipped to the Cayman Islands and an economic dependency on Israel, a country it seeks to destroy. Riots in the Palestinian Authority and the continued fulminating against the West are good diversions for a political entity that is not viable. Of course, an economy that is dependent on Western convoys each morning might find that rioting, kidnapping aid workers and shooting Kalashnikovs might be a temporary respite from its economic misfortune but ultimately not the most suitable approach to solving its economic problems.

The cartoons themselves had been hand carried to the Middle East by a group of Danish Muslims, who unsure of the degree of the offense, put a few of their own in the mix just to make sure that they generated the proper outrage—no blasphemy there. Yet, these Danish Muslim peddlers of deceit went from country to country incapable of soliciting any interest in this great outrage.

Their fortunes changed when they arrived in Qatar, where Islamic televangelist and suicide-bomb promoter Yussef al Qaradawi saw the opportunity others had missed and summarily issued a fatwa. He then used his Al Jazeera television show to falsely assert that images of the prophet were not allowed in Islam and that the Danish paper had violated Islam, ”The Only True Faith.”

In the Middle East where collective guilt persists and one routinely speaks of groups as if they existed without individuals, al-Qardawi was able to take the exaggerated actions of one newspaper and successfully indict an entire civilization. Sheik Qaradawi describes himself as an Islamic moderate. Who says there is no clash of civilizations here?

America and the West have routinely been quick to distinguish the perpetrators of terrorism from the Muslims next door. Even the bin Ladin family was flown unharmed and with preferential treatment out of the country immediately after 09/11.

Not so the Islamic riot crew in that has denounced all of Denmark and the West. Had we imposed similar, puerile notions of collective guilt after 09/11, Nevada would be swarming with an Islamic population behind barbed wire and fifty caliber machine guns. But that is something we as a society would find incompatible with our basic understanding of justice and freedom. The same democratic ethos that abhors collective guilt also permits offensive speech. After all, speech that does not offend someone does not need constitutional protection.

The outrage of Islamic rioters saddling he West with collective guilt for an offense that is barely what it appears to be is compounded by our own media, which has taken al-Qaradawi's interpretation of Islam at face value and conveniently hid their cowardice behind it so as to avoid publishing the cartoons.

The other day I listened to a journalist from the San Jose Mercury News on public radio KQED rationalize his paper's decision to describe the cartoons instead of printing them out of concern for religious sensitivities. This from a newspaper that just years ago ran a prominent and totally fictional series on how the CIA created the urban crack epidemic. The story almost ignited the urban ghettos, resulted in a series of congressional investigations, and despite having been shown to be a hoax is still widely believed in the African-American community.

A media that vaunts child pornography as art and thinks that a nude painting of the Virgin of Guadalupe is not offensive to the religious values of millions of Hispanics now embraces sensitivity as a virtue. The New York Times has long steamrolled even national security in the name of freedom of the press and now refuses to publish the cartoons of Mohammed. How can one take its newfound religious sensitivities seriously? Especially when the offense emitted by the Danish cartoons pales in comparison to the violence in the Islamic world and the cowardice of the American media.

from Reuters, 2006-Apr-24:

Prophet cartoon offenders must be killed -bin Laden

DUBAI - Al Qaeda leader Osama bin Laden has called for people who ridiculed the Prophet Mohammad to be killed, weighing into the furore that erupted after a Danish newspaper ran cartoons lampooning Islam's holy messenger.

"Heretics and atheists, who denigrate religion and transgress against God and His Prophet, will not stop their enmity towards Islam except by being killed," the Saudi-born militant said.

Bin Laden's remarks were part of an audio tape which Al Jazeera television aired excerpts from on Sunday. The television station later published a full transcript on its Web site.

The Doha-based satellite television channel had aired excerpts of the tape in which bin Laden accused the West of waging a "Crusader-Zionist" war against Islam, citing the isolation of the Hamas-led Palestinian government and the crisis in Sudan's Darfur region as examples.

Anger over the cartoons, which a Danish newspaper first published last year, outraged Muslims who consider drawings of the Prophet to be blasphemous.

The caricatures, which were reprinted in several Arab and European newspapers, sparked violent protests in which more than 50 people were killed. Consumers in Muslim countries have also boycotted Danish goods.

Denmark's government has refused to apologise for the cartoons, saying it cannot say sorry on behalf of a free and independent media and that freedom of speech is sacred.

"The insistence of the Danish government to refrain from apologising and its refusal to punish the criminals and take action to prevent this crime from being repeated... shows that the notions of freedom of speech have no roots, especially when it comes to Muslims," bin Laden said in the tape.

from Reuters, 2006-Feb-17, by Simon Cameron-Moore:

Bounty offered on cartoonists as protests rage

ISLAMABAD - A Pakistani Muslim cleric and his followers offered rewards amounting to over $1 million for anyone who killed Danish cartoonists who drew caricatures of the Prophet Mohammad that have enraged Muslims worldwide.

The cleric offered the bounty during Friday prayers as Muslim anger against the cartoons flared anew in parts of Asia.

Weeks of global protests over the cartoons have triggered fears of a clash of civilizations between the West and Islam, and have led to calls on all sides for calm.

On Friday, thousands rallied in Pakistan, police in Bangladesh blocked demonstrators heading for the Danish embassy in Dhaka and in the Indian city of Hyderabad, police fired teargas shells and batons to beat back hundreds of protesters, who had stoned shops and disrupted traffic.

Protests in Pakistan this week have resulted in at least five deaths and hundreds of detentions, and on Friday it became the latest country where Denmark has decided to temporarily close its embassy.

The Danish foreign ministry also issued a travel warning for Pakistan, urging any Danes to leave as soon as possible.

In the northwestern Pakistani city of Peshawar, cleric Maulana Yousef Qureshi said he had personally offered to pay a bounty of 500,000 rupees ($8,400) to anyone who killed a Danish cartoonist, and two of his congregation put up additional rewards of $1 million and one million rupees plus a car.

"If the West can place a bounty on Osama bin Laden and Zawahri we can also announce reward for killing the man who has caused this sacrilege of the holy Prophet," Qureshi told Reuters, referring to the al Qaeda leader and his deputy Ayman al Zawahri.

The cleric leads the congregation at the historic Mohabat mosque, on street known for goldsmith shops in the provincial capital of North West Frontier Province -- a stronghold of Pakistan's Islamist opposition parties.

The cartoons were first published in Denmark last September, but last month newspapers and magazines in Europe and elsewhere began republishing to assert principles of freedom of expression.

Muslims believe images of the Prophet are forbidden.

EMBASSY SHUTS

Pakistan's Foreign Ministry said it was recalling its own ambassador from Copenhagen for consultations. It did not elaborate further.

The Danish ambassador in Islamabad said, however, that relations had not been broken off because of the furor.

"I'm still in Pakistan and in a secure place," Ambassador Bent Wigotski told Reuters.

"There is no question of broken relations or anything like that," he said, adding that the German embassy was looking after Denmark's consular affairs.

Denmark has already shut its missions in Lebanon, Syria, Iran and Indonesia as a result of violence or threats of violence.

Protests in Pakistan have been large and violent and many have taken on a distinctly anti-U.S. tone. Demonstrators, in addition to burning Danish flags, have attacked U.S. fast-food outlets and burned U.S. President George W. Bush in effigy.

Islamist parties have called for a nationwide strike on March 3, around the time President George W. Bush is expected to visit Pakistan, despite the unrest.

APPEALS FOR REASON

Western leaders have been calling for calm.

Former U.S. President Bill Clinton and French President Jacques Chirac both said on Friday that it was a mistake to publish the cartoons.

Clinton, on a private visit to Pakistan, said he saw nothing wrong with Muslims around the world demonstrating in a peaceful way, but he feared a great opportunity to improve understanding had been squandered.

"This is not a time to burn bridges; this is a time to build them," he said, adding, "...I can tell you that most people are horrified that this much misunderstanding has occurred."

Chirac was more blunt.

"I am appalled by what happened as a result of the publications of these cartoons," Chirac told India Today news magazine which published an interview with him on Friday.

"I am, of course, in favor of the freedom of the press, which is a pillar of democracy. But I am equally for respecting everyone's sensibilities... So I deplore the situation," said Chirac, who visits India next week.

(Additional reporting by Zeeshan Haider and David Brunnstrom in Islamabad, Nizam Ahmed in Dhaka, Kamil Zaheer in New Delhi and John Ruwitch in Hong Kong)

from the Philadelphia Inquirer, 2006-Feb-19, by Frida Ghitis:

A cartoon contest with Iran as loser

AMSTERDAM - "The Jews don't care if you make fun of them," my Dutch taxi driver said as we discussed the rage over cartoons depicting Muhammad. He was telling me about a collection of crudely anti-Semitic cartoons he had seen from a variety of Arab newspapers and from a Muslim European Web site. They don't get angry, he explained, because "Jews are the first ones to make fun of themselves."

When Muslims from Europe to Indonesia reacted with fury at the depiction of Muhammad in a Danish newspaper, two groups, in Iran and in Belgium, decided to fight back by making cartoons attacking Jews (and Christians and gays, but mostly Jews). It's not quite clear what they intended to prove. What is clear is that their plan was fatally flawed.

They forgot that when it comes to laughing at Jews, and at the vicissitudes of their history, nobody outdoes Jewish comics. Over the centuries, Jews have learned that laughing at your difficulties can ease the pain.

It's not quite true that Jews don't bristle at attacks against them, particularly when they come loaded with hatred. European Jews, however, have heard it all before. And claims that freedom of speech in Europe is restricted when it comes to Jews are greatly exaggerated. Granted, denying the Holocaust is a crime in some countries that saw their large Jewish populations exterminated during World War II. But humor is hardly off-limits.

When a Muslim extremist killed and then tried to sever the head of Dutch filmmaker Theo van Gogh in an Amsterdam street, he was enraged because van Gogh - an equal opportunity offender - had made a film criticizing the treatment of women in Islam. But Muslims were hardly the first to be dissed by the artist who thrived on crossing the line.

"Hmm, it smells like caramel," he once said. "They must be burning diabetic Jews today." There were no Jewish riots or assassination attempts.

After the Danish cartoons, Belgium's Arab European League launched its "freedom of speech" campaign. A cartoon in their Web site showed a half-naked Hitler in bed with Anne Frank, the child diarist killed in the Holocaust, telling her, "Write this one in your diary." Not particularly funny. But then, let's face it, most cartoons really aren't. No riots followed, by the way.

Then came the idea from Iran's biggest newspaper of holding a competition for the best Holocaust cartoon. They were so proud of their cleverness. Iran's President Mahmoud Ahmadinejad is on record saying he doesn't believe the Holocaust happened. So this brilliant ploy would hit two Western taboos with one Iranian stone.

Iran thought the West would recoil in horror. (Riots, anyone?) But before the contest could get going, an Israeli cartoonist launched his own competition.

"We will show the world we can do the best, sharpest, most offensive Jew-hating cartoons ever published," said Israeli cartoonist Amitai Sandy. He noted a truth well-known to students of humor: When it comes to making fun of the tragedies that have befallen the Jewish people, nobody does it better than the Jews. "No Iranian can compete with us on that," he declared.

And what about the publication of Iran's contest winners? Tehran's bet that the cartoons would be shunned apparently was a loser. The Iranian Holocaust cartoons are already appearing in - you guessed it - Israel. The cartoons now appear in the Israel News Agency Web site.

There is a difference, however, between what you see in the Iranian publication and the Israeli one. The Iranian publication is in the best tradition adopted by the Arab and Muslim world from anti-Semitic cartoons in Nazi Germany. They are part of an attempt to demonize, and dehumanize; designed to create hatred, not to entertain. While Iran is questioning the Holocaust ever happened, the INA site posts the caricatures with a line explaining, "Six million Jews were gassed, shot and hung during the Holocaust." The INA did one more thing. Through the use of search-engine-optimization techniques, they made sure that if you try a Google search of "Iran Holocaust Cartoons" the INA site appears at the top of the page, ahead of any Iranian or Muslim extremist site. It conveys a message about the dangers of hatred to anyone who wants to see anti-Semitic cartoons. Pretty funny.

from BBC News, 2006-Feb-21, by Bethany Bell:

Irving case prompts Austria law debate

Vienna -- The trial of the British historian David Irving has unleashed a debate in Austria about the country's Holocaust denial law, which carries a maximum penalty of 10 years in jail.

The law was enacted after World War II, and was meant to prevent any further Nazi activities.

Austria had been annexed to Nazi Germany in 1938, and was deeply involved in the crimes of the Third Reich.

A few Austrians, such as Lothar Hobelt,

an associate professor of history at the University of Vienna, believe it should never have been set up at all.

"This is a silly law by silly people for silly people," he said.

"In fact, having a law that says you mustn't question a particular historical instance, if anything, creates doubt about it, because if an argument has to be protected by the force of law, it means it's a weak argument."

COUNTRIES WITH LAWS AGAINST HOLOCAUST DENIAL Austria Belgium Czech Republic France Germany Israel Lithuania Poland Romania Slovakia Switzerland

But many other Austrians believe that not having the law would lay them open to the charge that they were not confronting their country Nazi past.

For many years, Austrians saw themselves as victims not perpetrators. The legacy of this reluctance to admit responsibility still casts a shadow here.

Professor Theo Ohlinger, an expert in constitutional law at Vienna University, says the law is a sensitive issue.

"It is so clear that the Holocaust existed that everybody who denies it is considered a fool. But abolishing this law could signal that Austria may not be really active in fighting against any National Socialist activities, and that is a problem."

Memorial

Before World War II, 200,000 Jews lived in Vienna. Nowadays, the community is only a few thousand strong.

Vienna's chief Rabbi Chaim Eisenberg says denying the Holocaust is dangerous.

"All this is very ugly, despicable," he says.

"I am not sure if people should go to jail, but there should be some measure to make sure that this does not happen."

In Vienna's cobbled Judenplatz stands the stone memorial to the 65,000 Austrian Jews who died in the Holocaust.

These days, few Austrians dispute the genocide, and historian Tina Walzer says the debate has moved on.

"The discussion is on a completely different level," she says.

"Today we are talking about compensation payments, we are talking about restitution. This is much more concrete than just talking about 'did the Holocaust happen or did it not?'"

The fact that people are daring to debate the Holocaust denial law shows that Austrians are less afraid to confront the past.

But sensitivities still run very high, and as long as that is the case, the law will remain in force.

from MosNews.com, 2006-Feb-19:

Russian Rights Activists Say Cartoons Only Plausible Excuse to Close Paper

Russian free speech advocates have accused officials of using the worldwide uproar over cartoons of the Prophet Muhammad as an excuse to shut down a regional newspaper and ingratiate themselves with the Kremlin, Reuters reported.

Authorities in the southern city of Volgograd on Thursday ordered the closure of the newspaper, which is owned by City Hall, after it printed a cartoon depicting the Prophet alongside images of Jesus, Moses and Buddha.

“(This is a) master class in how to close down an innocent newspaper in two days,” Alexander Brod, head of the Moscow Human Rights Bureau, told Ekho Moskvy radio station.

“Maybe the lesson will be of use to someone during an election campaign when the need arises to gag opposition democratic newspapers,” he said.

Russian media said the closure of the Gorodskiye Vesti newspaper followed a complaint from the local chapter of United Russia, the country's dominant political party and widely seen as a Kremlin puppet.

Russia's Union of Journalists and the New York-based Committee to Protect Journalists have also condemned the newspaper's closure.

They said there was nothing offensive about the cartoon. One Muslim community leader complained publicly about the cartoon but there has been no public outcry.

President Vladimir Putin has initiated a campaign to combat racism and religious intolerance in the multi-ethnic country, a theme picked up enthusiastically by United Russia.

Some commentators say the newspaper in Volgograd, once known as Stalingrad, fell victim to an over-zealous pursuit of Putin's campaign by local officials.

Protests — some of them violent — have erupted in countries all over the world against the cartoons of the Prophet first printed in a Danish newspaper that many Muslims say are an insult to their faith.

from the Brussels Journal, 2006-Feb-14, by Paul Belien with Filip van Laenen in Oslo:

Muslims Create Islamophobes, Then Want Islamophobes Punished

Last Saturday's riots in Antwerp, when Moroccan “youths” went on the rampage in Antwerp's historical center, destroying cars and beating up reporters, has led to frustration among police officers because the authorities prevented them from stopping the violence. Officers complained in today's papers that they had been given orders to watch passively while young, rowdy Muslims were allowed to take revenge over... drawings published more than four months ago in a Danish newspaper.

“We had to watch how they were ripping off car mirrors. We wanted to stop this vandalism but were ordered to withdraw,” an anonymous policeman says in today's Flemish daily De Standaard. “An ambulance was told to switch off its siren because that might provoke the Moroccans.” Another anonymous officer told the press: “There you are watching this, while citizens can see that you are powerless.” According to an anonymous police chief the authorities decided, that “it was better to have a few cars vandalized than risk open war in the streets.” On Monday the city council, led by the Socialist mayor Patrick Janssens, decided that the city would compensate the damage to cars and property.

One of the victims of the violence was Fatima Bali, a city councillor of Moroccan origin. She was on a tram last Saturday evening around 6 pm, when the vehicle was attacked. “It was very frightening,” she said. “Stones were thrown at the tram. Passengers tried to hide under the seats. Everyone panicked. Windows were shattered, a stone hit a passenger's head – a Moroccan by the way. I hope I will never have to go through something like that again.” As a result of their experience the non-Muslims on the tram, as well as the citizens who watched the police stand by while their cars were damaged, have probably all turned “Islamophobe” now. “Islamophobes”, however, soon risk being put in jail.

Today some 200 Islamic religious leaders demonstrated in Brussels' European district. It was a peaceful demonstration, but the Muslims want Europe to adopt the religious taboos of Islam. They handed a letter to a representative of the European Commission condemning “the blasphemy and humiliation” caused by the Danish cartoons, demanding that the EU introduce legislation against “hatred and islamophobia” and that it ban “blasphemy and the showing of disrespect for all religions and their prophets” because “every excessive form of free speech stigmatizes people.”

After their meeting with the representative of the Commission the Muslim delegation was received by the Danish ambassador, Karsten Petersen. “He thanked us for our moderation that invites dialogue and calm,” said imam Said Dakkar, the chairman of the Union of Brussels Mosques. “We have told him that we disapprove of violent demonstrations,” imam Said Mdaoucki of the Antwerp Mosque Federation added, “but we want to know how far freedom of speech is allowed to go. Can you ridicule someone's values and beliefs? Is that freedom of speech?”

Yesterday, during a visit to Saudi Arabia, EU Foreign Policy Coordinator Javier Solana promised that the EU will support a clause in an updated human rights charter of the United Nations to “protect the sanctity of religions and the prophets.” Earlier, in a joint statement, Mr Solana of the EU, UN Secretary-General Kofi Annan and Ekmeleddin Ihsanoglu, the Secretary-General of the Organisation of the Islamic Conference (OIC) wrote: “We understand the deep hurt and widespread indignation felt in the Muslim world. The freedom of the press, which entails responsibility and discretion, should respect the beliefs and tenets of all religions.”

On Dec. 16, 2005 the UN General Assembly adopted a strong resolution on defamation of religions. “This joint statement and the UN resolution provide the legal ground for condemnation of acts of European newspapers,” the OIC said during its meeting last week. “This is a very important achievement and we must seize the opportunity to preserve the momentum for joint action to prevent a recurrence of this despicable act. To combat Islamophobia in the West we must work toward the adoption of relevant legislations.”

However, the attempt to impose the Muslim taboo on depicting Muhammad and forbid the publishing of mild cartoons such as the twelve Danish ones (see them here, halfway down the page) is encountering resistance.

José Manuel Barroso, the President of the European Commission, says in an interview with Jyllands-Posten, the newspaper that first published the cartoons, that freedom of expression is a “fundamental value” in Europe and that it is “better to publish too much than not to have freedom.”

In Paris, France's leading left-wing paper Le Monde criticised the EU's failure to act in response to the series of attacks on European embassies in the Middle East. In today's leading editorial it writes that Europe (the paper mentions Mr Solana) is not adequately defending freedom of speech. Europe “seems crippled, intimidated” by the reaction to the cartoons in the Middle East and the paper argues that this “can only encourage regimes like Syria and Iran to continue to manipulate this affair for political ends.” Le Monde also criticizes French President Jacques Chirac who condemned the “offensive character” of the cartoons but not the attack on the French embassy in Teheran.

In another article Le Monde draws attention to the fact that only Denmark and Norway have protested against the attacks of their embassies, though these attacks constitute a violation of international law. The other European countries are keeping a low profile “out of fear of seeing the violence spread to other embassies or other countries.”

In Norway, meanwhile, Kåre Valebrokk, the president of the Norwegian private television channel TV2, deplores last week's apology by Vebjørn Selbekk, the editor of Magazinet, for republishing the Danish cartoons. According to Mr Valebrokk the editor was coerced into apologizing by the Islamic Council of Norway and the Norwegian government. Mr Selbekk apologized during a press conference in the Norwegian ministry of Social Inclusion on Friday morning, immediately before the beginning of the Muslim's Friday prayers.

Kåre Valebrokk, a former editor of the business paper Dagens Næringsliv, said that Mr Selbekk's apologies affect the freedom of the Norwegian press: “ From now on journalists no longer decide independently about what the networks and the papers report. The Islamic Council decides as well. If Muslims object to what we show or write it suffices that they burn down a few embassies to have us give in. For a large part we have now renounced our editorial freedom to fundamentalists. I do not like this new role. It is now that freedom of speech needs all its friends.”

In Denmark today, Ahmad Akkari, the spokesman of the cheating radical Danish imams, who incited hatred by distributing false cartoons throughout the Muslim world, said that his group is prepared to accept “a third of the blame” for the escalated conflict on condition that Jyllands-Posten and the Danish Government accepts that the rest of the responsibility is theirs. Mr Akkari explained that this is an offer to resume dialogue. Is he perhaps following patterns of haggling used in primitive tribal societies?

Yesterday Danish Prime Minister Anders Fogh Rasmussen met with a newly established group of moderate Muslims, while his government announced that it would not continue dialogue and cooperation with the lying imams, who until now had been recognized by the authorities as the official representatives of the Muslim community in Denmark.

from the Associated Press, 2006-Feb-23, by Alexa Olesen:

China Bans Cartoons That Blend Animation

BEIJING -- "Who Framed Roger Rabbit" could be out of the picture in China - along with many other cartoon favorites.

China has announced a ban on TV shows and movies that blend animated elements with live-action actors, a move aimed at nurturing local animators and apparently curbing the use of foreign cartoons.

Besides "Roger Rabbit," the 1988 feature film in which actor Bob Hoskins performed beside several animated characters, popular children's TV shows featuring human hosts and animated elements such as "Blue's Clues" from the United States and Britain's "Teletubbies" could be included in the ban. And "Space Jam," the 1996 film featuring basketball great Michael Jordan alongside Bugs Bunny, Elmer Fudd and Daffy Duck could also be shelved.

The government's main television and film regulator sent notice Feb. 15 to broadcasters and theaters that such films and shows could no longer be shown and that violators would be punished. It did not say what the penalties would be.

It also did not give examples of banned programs but described them as "so-called cartoons that mainly feature real people and only occasionally have computer-generated elements."

Communist authorities are eager to expand the country's animation industry and also are worried about the influence of foreign pop culture on Chinese children.

The cartoon ban is intended to "promote the development and prosperity of the cartoon industry in China," said the statement issued by the State Administration of Radio, Film and Television.

The broadcast administration's statement said it planned to review programs that had previously been granted licenses to make sure none of the banned programming is aired.

Phone calls to the administration's main office on Thursday weren't answered.

Japanese and Western animated programs have gained a foothold in China but the government wants to develop its own industry.

China already limits foreign cartoons on television to 40 percent of all cartoons broadcast. It has said it might ban all foreign cartoons from prime time television once the quantity and quality of domestic productions is considered adequate.

Yet foreign cartoons dubbed into Chinese are a staple on late afternoon and weekend television.

Chinese studios have taken advantage of low labor costs to build a growing business handling the labor-intensive animation of cartoons for foreign studios.

But they've had little luck building up their own brands.

There are few Chinese-made cartoons aside from a handful of traditional tales such as "Journey to the West" and some government-financed titles.

from E! Online, 2006-Mar-17, by Joal Ryan:

"The Closet," the Controversy--and Cruise

Wednesday night on South Park, Robert Redford got zinged, and Chef urged one and all to "suck on my chocolate salty balls."

The controversial part was what didn't air: A closet.

"Trapped in the Closet," a South Park episode featuring a literally closeted Tom Cruise and a primer on Scientology, was abruptly pulled from Comedy Central's schedule, and replaced with a nearly eight-year-old chestnut spoofing the Sundance Film Festival.

The network wouldn't confirm or comment Friday on why "Trapped in the Closet" was shelved in favor of the 1998 episode "Chef's Chocolate Salty Balls."

Cruise's rep, however, did comment: "This has nothing to do with us," publicist Arnold Robinson said Friday.

Cruise, a Scientologist who has staunchly defended his religion and an avowed heterosexual who has successfully sued people and publications that have suggested he is in the metaphorical closet, was pegged as the culprit in the South Park switcheroo in a report Thursday on HollywoodInterrupted.com.

The blog reported that the star "threatened" to sit out the publicity cycle for Mission: Impossible 3--presumably meaning no interviews, no photo-ops, no Oprah couch--if "Trapped in a Closet" aired again on Comedy Central.

M:I-3 is due to be released in May by Paramount, which is the corporate sibling of Comedy Central, which is, like Paramount, owned by Viacom.

Specifically responding to Cruise's reputed corporate power play, rep Robinson said: "That is not true."

This is not the first time Cruise has been linked to the closing of "Closet." In January, Britain's Sun reported the episode would "never" air in the United Kingdom because TV executives there were "scared [Cruise] will sue." (The episode apparently aired without incident in Canada a few days later.)

This also isn't the first time Comedy Central has been accused of caving. Last December, a Catholic rights' group took credit for the network pulling reruns of South Park's Virgin Mary-skewering ninth season finale, "Bloody Mary."

South Park creators Trey Parker and Matt Stone, meanwhile, have weighed in on the latest controversy--with fighting words.

"So, Scientology, you may have won THIS battle, but the million-year war for earth has just begun!" the self-described "servants of the dark lord Xenu" said in a statement Thursday that does not mention Cruise. "Temporarily anozinizing our episode will NOT stop us from keeping Thetans forever trapped in your pitiful man-bodies."

Earlier this week, Parker and Stone publicly parted ways with Isaac Hayes, the longtime voice of Chef, after the "Shaft" legend complained South Park had gone too far in satirizing religion. The duo said Hayes, a Scientologist, never complained about the show until it took on Scientologists.

"Trapped in the Closet" first aired last Nov. 16. In it, a cartoon version of Cruise enters a closet, and doesn't come out for quite a while. Cruise is eventually joined in the closet by fellow Scientologist John Travolta and R&B singer R. Kelly, who wrote the soap opera of a song that shares its name with the episode title.

Also in the episode, South Park tyke Stan is recruited to join the Church of Scientology, and, in the process, gets an earful about "frozen alien bodies," Hawaiian volcanoes and the "evil lord Xenu."

"Guys, you got it [Scientology] all wrong," Hayes said he told Parker and Stone in a January interview with The A.V. Club. "We're not like that."

Comedy Central would not say if "Trapped in the Closet" will reair at a later date, or if it will be included in South Park's syndication package.

Video clips from the episode, including the bits with Cruise and the closet, and Stan and the Scientologists, can be found on the Comedy Central Website.

In a bit of timing that is said to be coincidental and not at all related to the "Closet" controversy, South Park begins its 10th season next Wednesday.

from InformationWeek, 2006-Feb-22, by Eric Chabrow:

U.S. Grants Patent For Broad Range Of Internet Rich Applications

The patent--issued on Valentine's Day--covers all rich-media technology implementations, including Flash, Flex, Java, Ajax, and XAML, when the rich-media application is accessed on any device over the Internet, according to the patent holders.

A patent has been granted to a relatively unknown California Web-design firm for an invention its creator says covers the design and creation of most rich-media applications used over the Internet. The patent holder, Balthaser Online Inc., says it could license nearly any rich-media Internet application across a broad range of devices and networks.

Potentially tens of thousands of businesses--not only software makers employing its business processes but companies offering rich-media on their Websites--could be subject to licensing fees when they use rich-media technology over the Internet.

The patent--issued on Valentine's Day--covers all rich-media technology implementations, including Flash, Flex, Java, Ajax, and XAML, when the rich-media application is accessed on any device over the Internet, including desktops, mobile devices, set-top boxes, and video game consoles, says inventor Neil Balthaser, CEO of Balthaser Online, which he owns with his father Ken. "You can consider it a pioneering or umbrella patent. The broader claim is one that basically says that if you got a rich Internet application, it is covered by this patent."

Rich media is a broad range of interactive digital media that display dynamic motion, exploiting enhanced sensory traits such as video, audio and animation.

"It's kind of unbelievable that [the patent] has such a wide ranging use because it covers so many technologies," says Bola Rotibi, a senior analyst at Ovum, an IT advisory firm in London. If the patent is enforced broadly, she says, "anybody who does anything with rich applications will have to pay royalties to the company."

That isn't lost on Balthaser, and its patent lawyer Don Pelto of Preston, Gates, and Ellis. "The considerable value of the 180 patent in the rich media and rich Internet applications areas cannot be understated," Pelto said in a statement.

Neil Balthaser, a former VP of strategy for Macromedia, the developer of the Flash rich-media development environment and player, now owned by Adobe, says he will most likely sell the patent rather than enforce it himself. He says he's discussing the sale of the patent to "top-tier players. I don't want to name them but they're fairly obvious, the guys who are investing a lot of money in this rich Internet applications field. They got a lot invested, or they're going to be investing a lot. Anyone of those companies would definitely benefit by controlling a patent like this, both defensively and potentially offensively, and the ability to sublicense it, and make some return on their investment."

Rotibi identified Microsoft, Adobe, Google, Yahoo as having made significant investments in rich Internet and interactive technology. These companies, she says, bet that rich Internet media along with handheld device proliferation and embedded technology, is the gateway to a market that sees a convergence between consumer, workplace, and appliance interactions. "This is a defining market--not unlike the effect the PC had for Microsoft-- and the bedrock of future software applications," she says.

Balthaser also said he might talk to what he calls third-string companies, such as retailers that have invested heavily in online business. "They're making a huge amount of money online, and are going to be pouring even more money into their online sales," he says. "A company like that can very much benefit from having a leadership position as they transform their site into a set of rich Internet applications by having a patent."

Balthaser says he began to develop rich-media application processes while developing Websites for large corporate clients in the late 1990s using Macromedia Flash 3. "My mom saw me struggling, and one day said, 'Why don't you figure out a way to bottle up that Balthaser magic and let people purchase the bottle and do it themselves?' It was one of those whacks on the side of the head. ... I started to work on an early prototype."

The patent, No. 7,000,180 or 180 for short, is entitled Methods, Systems, And Processes For The Design And Creation Of Rich-Media Applications Via The Internet. It contains 83 claims that encompass a wide range of rich-media Net application methods, systems, and processes.

How broad is the patent? Here's what the patent abstract says it covers: A host computer, containing processes for creating rich-media applications, is accessed from a remote user computer system via an Internet connection. User account information and rich-media component specifications are uploaded over the Internet for a specific user account. Rich-media applications are created, deleted, or modified in a user account, with rich-media components added to, modified in, or deleted from the rich-media application based on information contained in a user request. After creation, the rich-media application is viewed or saved on the host computer system, or downloaded to the user computer system over the Internet.

Because he began developing the methods and processes more than a half decade ago, he believes he can prove his invention is novel and nonobvious, two requirements to get a patent, and can fend off any patent challenges from potential licensees who might contend the invention is neither new nor obscure. "Are we ready to defend our patent?" Balthaser asks. "Absolutely. We're ready to defend it vigorously if we have to. But [litigation is] not the approach we're taking in terms of licensing."

from the International Herald Tribune (NYT Paris edition), 2006-Mar-5, by Ken Belson of the New York Times:

Internet 'fast lane' could carry heavy toll

NEW YORK Are consumers going to start having to spend a lot more to surf the Web?

Phone and cable companies have stoked those fears recently by floating plans that would have Amazon, Yahoo and other Web sites paying new fees to ensure that their content will be delivered to customers faster.

This has raised the prospect that consumers may end up having to pay twice for access to the Internet - once to the phone or cable company that sells them a dial-up or broadband line and again to Internet companies that might pass along new charges to people getting content from their sites.

While consumer prices may not increase immediately, consumer advocates, industry analysts and telecommunications executives say that, one way or another, consumers are likely to shell out more to get Web content in the future.

The reason, they say, is simple. As Internet traffic booms and competition intensifies, the phone and cable companies are spending billions of dollars to expand their networks - and they want someone to help them foot the bill for it.

"The networks of today have to be upgraded," said Carl Russo, the chief executive of Calix, a company that sells Internet television equipment. "You can push this bag around all you want, but at the end of the day, we will pay for it."

The same debate is under way in Europe. Last month, the chief executive of Deutsche Telekom, Kai-Uwe Ricke, said European service providers were considering a charge on content companies. Meanwhile, Telekom, which is building a €3 billion, or $3.6 billion, fiber-optic broadband network, wants that infrastructure to be exempted from rules requiring former monopolies to allow rivals to access their networks.

For the most part, Internet content sites get a free ride because network operators have to transport all data that travel on their networks equally. Some content providers do buy extra servers so that consumers can zip around their sites more quickly, but they absorb that cost themselves.

In the United States, the Bell phone companies are proposing to share the burden of upgrading their networks - particularly as big video files, which take up a lot of bandwidth on the networks, become more common - with the companies sending out that data.

The idea is to create a system in which Web sites could, for a fee, bump their data into a kind of fast lane where it would not be mixed in with everyone else's. A small online retailer might consider this unnecessary, but a company selling videos online could see it as crucial.

"If other players want to take advantage of our network and need something to make their applications available to consumers, we will work with them as partners," said Thomas Tauke, executive vice president of the public affairs policy and communications at Verizon.

The Bells went public with this plan last year, and it quickly drew fire from consumer groups, technology companies and lawmakers eager to preserve open access to the Internet. Companies like Amazon.com, eBay and Google fear that if they do not buy faster access from the telecommunications companies, they will end up in a slow lane.

The Bells contend that the fast lanes they are proposing will not slow down other traffic because their networks are big enough to accommodate everyone.

Some critics are skeptical and say the Bells' plans to sell television routed over their networks will leave less space for other content. Regardless, if two tiers of delivery speed were offered, content providers would feel compelled to get the faster service, if only to keep up with their rivals who had the service. That could become costly.

"There's no limit to what they could charge for this high-speed lane, and they could make the slow-speed lane as slow as they want," said Rich Tehrani, president of Technology Marketing, a media company that promotes Internet phone service. "There's no way to know today what the prices might be, but it could be anything, and that's the fear."

Tehrani and others fear that companies that compete with the network providers - for instance, say, providers of Internet phone service - might not even get the chance to sign up for faster access if they want it.

But the phone and cable industries have powerful allies in Congress who are already proposing legislation that would approve this tiered service. If the telecommunications companies get their way, the most obvious candidates to pay for the premium service are companies that offer videos, music and other data-heavy products. Consumer advocates worry that if Apple, which runs the iTunes site, starts paying network operators for faster access, it might try to offset the cost by raising the price of its video content.

Another possibility, critics say, is that smaller Web sites would be crowded out. A big company like Apple, they argue, has the money to pay network providers for faster access and absorb the cost. But the small online sites might not. If they were unable to compete with bigger, faster sites, the result could be less diversity of content on the Internet.

"Tollbooths and gatekeepers are the exact opposite of what the Internet is all about," said Michael Copps, a commissioner at the Federal Communications Commission. "Down that route, consumers can count on paying more and getting less - less content, fewer services and reduced innovation."

from Salon.com, 2006-Jan-25, by Sam Natapoff:

Will BlackBerry go out of season?
An intellectual property lawsuit could silence the ever-present hand-held e-mail device.

For everyone who ever wished that BlackBerrys were illegal, they soon could be. The ubiquitous hand-held e-mail-phone devices often provoke rage in would-be conversation partners, disgust in onlookers, and fury in those forced to endure their incessant beeping.

But Type A workaholics everywhere are in agony, as a mano a mano battle brews over this ostentatious icon of the information elite. In one corner is Research in Motion Ltd., the Canadian firm in Waterloo, Ontario, that created and manufactures BlackBerrys. In the other is NTP Inc., a small Virginia-based U.S. patent firm that apparently holds the patent on BlackBerry's wireless transmission of e-mail.

The fight cuts to the heart of the battle over intellectual property rights in an information economy. With rising competition at home and abroad, companies are desperately trying to stay current by offering new, innovative goods such as hand-helds, downloadable music, and satellite radio, all at sonic speeds of production. But the obsession with novelty is risky business when it is often unclear whether someone else may already own the idea.

NTP's patents concern wireless transmission of e-mail by radio frequency to a mobile receiver like a BlackBerry. The patents were initially registered by NTP founder Thomas Campana, in 1991, to patent a wireless communication system he created for his original pager company. NTP holds that BlackBerry is encroaching on NTP's patents in its wireless e-mail delivery to its hand-helds. BlackBerry insists its proprietary software does not impinge upon NTP's territory.

On Monday, the U.S. Supreme Court refused to review an appeals court ruling on the case. Specifically, the appeals court held that although RIM's main relay station is based in Canada, the company must still abide by U.S. patent law, given that customers use the device inside U.S. borders. The high court decision means that all BlackBerry service could be suspended as soon as Feb. 1 if no settlement is reached, causing high-powered frenzies from Wall Street to Waikiki. (BlackBerry has 4.3 million U.S. subscribers.) But the U.S. government isn't entirely on the same page. In December 2005, the U.S. Patent and Trademark Office announced that it intended to reject NTP's five patents and its arguments as "unpersuasive." It is still reviewing the case.

RIM put a brave face on Monday's Supreme Court setback. "[W]e were not banking on a Supreme Court review," Mark Guibert, RIM's vice president for corporate marketing, said in a statement. Should a district court judge in Richmond, Va. -- who sided with NTP in 2003 -- rule that BlackBerry must halt its services before the patent office makes its final decision, BlackBerry has created "workaround software" to keep the company in business, Guibert said. NTP could not be reached for comment.

The case was almost resolved last year, when RIM tentatively settled with NTP for $450 million. That agreement imploded, and now the settlement price has skyrocketed to somewhere between $700 million and $1.5 billion, as BlackBerrys have become more popular. With so much money at stake for both companies, analysts say a settlement remains possible.

In the meantime, Karl Marx would be amused to watch RIM and NTP tear each other apart. Now that capital (like communication) is increasingly virtual, those who think they own the means of production may need to double-check their capitalist credentials. It turns out that it's no longer enough to invent a product, build a factory and dominate the market as RIM did. A clever investor such as NTP, a company whose sole purpose is to hold patents, may turn out to be your boss.

The internecine ownership arguments are having some concrete trickle-down effects. While Mommy and Daddy fight over patent rights, the BlackBerry-toting spawn are terrified at the possibility of mobile e-mail deprivation. Ontario-based RIM has been so dominant in convincing American overachievers to buy BlackBerrys that the "South Park" creators should think about adding it to their song, "Blame Canada." If BlackBerrys go dark, so will the mood of much of Wall Street. While this may delight the pen-and-ink crowd, it will likely (if temporarily) cost millions in lost time, reduced efficiency, and therapy bills.

It will also be a significant victory for intellectual property rights. BlackBerry's classic market success will have been brought to heel by a small U.S. holding company that doesn't produce a thing, speculating on products that may never exist. In other words, BlackBerry will have been defeated by an idea. Marx would have been proud.

from the Associated Press, 2006-Mar-19:

Judge Halts Notorious B.I.G. Album Sales

NASHVILLE, Tenn. -- A judge halted sales of Notorious B.I.G.'s breakthrough 1994 album "Ready to Die" after a jury decided the title song used part of an Ohio Players tune without permission.

The jury Friday awarded $4.2 million in punitive and direct damages to the two music companies that own rights to Ohio Players recordings.

The sales ban imposed by U.S. District Judge Todd Campbell affects the album and the title song in any form, including Internet downloads and radio play.

It was unclear when or how the ban would take effect. By Saturday evening, a search of BestBuy.com and Amazon.com showed "Ready to Die" was still available for purchase online.

The jury decided that Bad Boy Entertainment and executive producer Sean "Diddy" Combs illegally used a part of the Ohio Players' 1992 song "Singing In The Morning."

Bridgeport Music and Westbound Records, which owned the song rights, have filed hundreds of lawsuits over "sampling," the practice of lifting parts of old music for new recordings. Most were settled out of court.

The companies get most of their income from song royalties by their artists, which include funk legend George Clinton, the Funkadelics and the Ohio Players.

"We've just been battling this for such a long time," Armen Boladian, owner of Westbound and Bridgeport said. "So many have been settled because companies didn't want anything to do with it, and we knew we were right."

The defendants, Bad Boy Entertainment, Bad Boy LLC, Justin Combs Publishing and Universal Records, plan to appeal. "We think (the verdict) is without merit," defense lawyer Jay Bowen said.

The estate of Notorious B.I.G. was originally sued but was dropped later as a defendant. The artist, born Christopher Wallace, was 24 in 1997 when he was killed in a shooting that remains unsolved.

The rotund New York rapper, also known as Biggie Smalls, was one of the most influential hip-hop artists of the 1990s. His albums "Ready To Die" and the posthumously released "Life After Death" together sold nearly 8 million copies in the U.S., according to Nielsen SoundScan.

from the Electronic Frontier Foundation, 2006-Feb-15, by Fred von Lohmann:

RIAA Says Ripping CDs to Your iPod is NOT Fair Use

It is no secret that the entertainment oligopolists are not happy about space-shifting and format-shifting. But surely ripping your own CDs to your own iPod passes muster, right? In fact, didn't they admit as much in front of the Supreme Court during the MGM v. Grokster argument last year?

Apparently not.

As part of the on-going DMCA rule-making proceedings, the RIAA and other copyright industry associations submitted a filing that included this gem as part of their argument that space-shifting and format-shifting do not count as noninfringing uses, even when you are talking about making copies of your own CDs:

"Nor does the fact that permission to make a copy in particular circumstances is often or even routinely granted, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright owners in the MGM v. Grokster case is simply a statement about authorization, not about fair use."

For those who may not remember, here's what Don Verrilli said to the Supreme Court last year:

"The record companies, my clients, have said, for some time now, and it's been on their website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod."

If I understand what the RIAA is saying, "perfectly lawful" means "lawful until we change our mind." So your ability to continue to make copies of your own CDs on your own iPod is entirely a matter of their sufferance. What about all the indie label CDs? Do you have to ask each of them for permission before ripping your CDs? And what about all the major label artists who control their own copyrights? Do we all need to ask them, as well?

P.S.: The same filing also had this to say: "Similarly, creating a back-up copy of a music CD is not a non-infringing use...."

from TheInquirer.net, 2006-Jan-22, by Theo Valich:

RIAA and MPAA call a halt on digital progress
"Customary Historic Use" mooted

BASTION OF digital rights, the Electronic Frontier Foundation has found a cause for concern when it comes to the future of consumer electronics.

It seems that both the RIAA and MPAA are keen to squish innovation by pushing measures through Congress that ensure no new digital media format will do anything that can't already (legally) be done.

The EFF unearthed draft legislation sponsored by a Republican Senator, Gordon Smith, which seeks to limit future digital broadcast media inventions in a number of ways.

The legislation proposes a "broadcast flag" be added to a digital signal by the broadcaster so that the content receiver will monitor and protect the content by means of a "Secure Moving Technology".

This it defines as "a technology that permits content covered by the Broadcast Flag to be transferred from a broadcast receiver to another device for rendering in accordance with customary historic use of broadcast content, to the extent such use is consistent with applicable law and that prevents redistribution of copyrighted content over digital networks," (our Italics).

In essence, the suggestion is that nothing should be invented in the sphere unless the RIAA and MPAA ok it first.

Are hallucinogenic drugs very popular with the venerable gentlemen at those organizations? I mean, stopping the progress of future content distribution standards, how barmy is that?

This of course, is prompted by the worries over future TV and radio (HDTV and digital radio) stations. Under the draft, the Fair Usage model would be replaced with "Customary Historic Use" - a model in which the distribution of digital content would be outlawed after the content is delivered to the subscriber of a service.

Want to save that historic 2007 SuperBowl? In the US, forget it. Your offspring debuted on national TV network? Sorry, no saving the tape unless your kid brings the it home from the station (and even that could be illegal too).

Add to that that no standard could be developed without the express permission of the RIAA/MPAA committee. Which brings us to a possible scenario: You want to develop a next-gen memory card and submit your idea to the board consisting of very technical folk... "Can it be used to save broadcast content? Yes? Well, we'll ring you back... never."

All that your humble journalist can conclude is the following: the US really wants to end up as a technological backmarker, after Japan, China, Britain, Germany and who knows what other countries... Heck, even in my Croatia with it's 4.5 million inhabitants has 3G providers, DVB-T digital TV, pay-per-view cable TV operators... and yeah, people can freely save that phenomenal documentary or a TV series on HBO. Why we want to? Well, maybe because I was at work while the show was on.

I wonder what it would take to get Americans to take a really deep look at their nation and choose progress instead of repression. Since I have lived in an unusually-liberal communist country, I can't say I have experience like my colleagues from behind the iron curtain, but suggestions inside this draft just sound... USSR-style.

L'INQs
EFF Article
PDF of Legislation Draft

from CNET News.com, 2006-Jan-9, by Declan McCullagh:

Perspective: Create an e-annoyance, go to jail
Annoying someone via the Internet is now a federal crime.

It's no joke. Last Thursday, President Bush signed into law a prohibition on posting annoying Web messages or sending annoying e-mail messages without disclosing your true identity.

In other words, it's OK to flame someone on a mailing list or in a blog as long as you do it under your real name. Thank Congress for small favors, I guess.

This ridiculous prohibition, which would likely imperil much of Usenet, is buried in the so-called Violence Against Women and Department of Justice Reauthorization Act. Criminal penalties include stiff fines and two years in prison.

"The use of the word 'annoy' is particularly problematic," says Marv Johnson, legislative counsel for the American Civil Liberties Union. "What's annoying to one person may not be annoying to someone else."

It's illegal to annoy A new federal law states that when you annoy someone on the Internet, you must disclose your identity. Here's the relevant language. "Whoever...utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both."

Buried deep in the new law is Sec. 113, an innocuously titled bit called "Preventing Cyberstalking." It rewrites existing telephone harassment law to prohibit anyone from using the Internet "without disclosing his identity and with intent to annoy."

To grease the rails for this idea, Sen. Arlen Specter, a Pennsylvania Republican, and the section's other sponsors slipped it into an unrelated, must-pass bill to fund the Department of Justice. The plan: to make it politically infeasible for politicians to oppose the measure.

The tactic worked. The bill cleared the House of Representatives by voice vote, and the Senate unanimously approved it Dec. 16.

There's an interesting side note. An earlier version that the House approved in September had radically different wording. It was reasonable by comparison, and criminalized only using an "interactive computer service" to cause someone "substantial emotional harm."

That kind of prohibition might make sense. But why should merely annoying someone be illegal?

There are perfectly legitimate reasons to set up a Web site or write something incendiary without telling everyone exactly who you are.

Think about it: A woman fired by a manager who demanded sexual favors wants to blog about it without divulging her full name. An aspiring pundit hopes to set up the next Suck.com. A frustrated citizen wants to send e-mail describing corruption in local government without worrying about reprisals.

In each of those three cases, someone's probably going to be annoyed. That's enough to make the action a crime. (The Justice Department won't file charges in every case, of course, but trusting prosecutorial discretion is hardly reassuring.)

Clinton Fein, a San Francisco resident who runs the Annoy.com site, says a feature permitting visitors to send obnoxious and profane postcards through e-mail could be imperiled.

"Who decides what's annoying? That's the ultimate question," Fein said. He added: "If you send an annoying message via the United States Post Office, do you have to reveal your identity?"

Fein once sued to overturn part of the Communications Decency Act that outlawed transmitting indecent material "with intent to annoy." But the courts ruled the law applied only to obscene material, so Annoy.com didn't have to worry.

"I'm certainly not going to close the site down," Fein said on Friday. "I would fight it on First Amendment grounds."

He's right. Our esteemed politicians can't seem to grasp this simple point, but the First Amendment protects our right to write something that annoys someone else.

It even shields our right to do it anonymously. U.S. Supreme Court Justice Clarence Thomas defended this principle magnificently in a 1995 case involving an Ohio woman who was punished for distributing anonymous political pamphlets.

If President Bush truly believed in the principle of limited government (it is in his official bio), he'd realize that the law he signed cannot be squared with the Constitution he swore to uphold.

And then he'd repeat what President Clinton did a decade ago when he felt compelled to sign a massive telecommunications law. Clinton realized that the section of the law punishing abortion-related material on the Internet was unconstitutional, and he directed the Justice Department not to enforce it.

Bush has the chance to show his respect for what he calls Americans' personal freedoms. Now we'll see if the president rises to the occasion.

from CNET News.com, 2006-Jan-11, by Anne Broache:

Microsoft wins final FAT battle
After being denied twice, Microsoft has had its file-storage system patents upheld

Two patents covering one of Microsoft's main Windows file-storage systems are valid after all, US federal patent examiners have decided.

The decision, announced Tuesday by the software giant, effectively ends a two-year saga over the patents and reverses two non-final rulings — the latest issued in October — in which the US Patent and Trademark Office rejected Microsoft's claims.

In their latest action, filed last week, the examiners concluded that the company's File Allocation Table (FAT) file system is, in fact, "novel and non-obvious", entitling it to patentability. Now the office is in the process of issuing a "patent re-examination certificate", which signals the finality of the decision, a Microsoft representative said.

The FAT file system, a common means of storing files, was originally developed for DOS, but has also been employed in Microsoft's Windows and on removable flash memory cards used in digital cameras and other devices. Some Linux- and Unix-related products also use the system to exchange data with Windows.

The Patent Office agreed to re-examine two patents covering the FAT system at the request of a little-known public interest group called the Public Patent Foundation in April 2004.

That organisation claimed there was "prior art" that proved Microsoft was not the first company to come up with the file format.

It also voiced concern that Microsoft would try to seek royalties from companies that sell and support Linux for using the technology, potentially posing a threat to the free software community. Under the terms of the GPL, Linux cannot be distributed if it contains patented technology that requires royalty payments.

Microsoft indicated in the past that it would license the file format. In December 2003, it said it had struck such a deal with flash memory vendor Lexar Media.

The Patent Office's final decision followed several non-binding decisions that were unfavourable to Microsoft. After issuing its preliminary rejection of the patents in September 2004, examiners handed down a similar decision about a year later.

All along, Microsoft voiced confidence that the patents would be upheld. David Kaefer, the company's director of business development, said Tuesday that the company was "very pleased" with the office's final decision. "This result underscores the validity of these patents but also the importance of allowing third parties to request re-examinations," he said in a statement.

Public Patent Foundation President Dan Ravicher said his organisation disagreed with the Patent Office's conclusions and offered a broader critique.

"Microsoft has won a debate where they were the only party allowed to speak, in that the patent re-examination process bars the public from rebutting arguments made by Microsoft," he told ZDNet UK sister site CNET News.com. "We still believe these patents are invalid and that a process that gave the public equal time to present its positions would result in them being found as such."

CNET News.com's Ina Fried contributed to this report.

Three patents are at issue: 5579517, “Common name space for long and short filenames”, filed April 24, 1995, granted November 26, 1996; 5758352, “Common name space for long and short filenames” (identical title), filed September 5, 1996, granted May 26, 1998; and 6286013, “Method and system for providing a common name space for long and short file names in an operating system”, filed January 28, 1997, granted September 4, 2001. The rule now is that patents expire 17 years after date of issue, so that FAT is patent-encumbered until Sept. 4, 2018.

from the Los Angeles Times, 2005-Dec-12, by Michael Hiltzik:

An Industry Unwilling to Play by Rules of 'Fair Use'

Scarcely a week passes without the entertainment industry warning us that its business model is about to be exterminated by some new technology.

The Internet, satellite radio and TiVo are among the mortal threats that have sent media executives scurrying to Washington with proposals to rein them in, tax them, even ban them. The music labels, TV networks and movie studios never propose to alter their own models to accommodate new technologies — they merely insist that everybody else change to accommodate them. When they don't get their own way with lawmakers, they take it out on consumers.

The most brazen recent example of the latter approach was a copy-protection program that Sony BMG Music Entertainment added to 52 of its CD titles by artists ranging from Sinatra to Van Zant. When any of these CDs was played on a personal computer, it secretly installed software designed to prevent copying of the disc. But the program also surreptitiously transmitted data to Sony about what was on the PC, rendered it vulnerable to hackers and was configured to wreck the machine if the owner attempted to uninstall the program.

After all this was exposed this fall, Sony recalled the CDs and gave buyers a safe way of eradicating its coded mole. (The label still faces lawsuits, and possibly government action, in the matter.)

Sony's rationale was that the ability to make flawless reproductions and distribute them over the Internet could destroy its business. It's not alone in exploiting this supposed threat as a pretext for imposing new limits on what consumers of CDs, DVDs, TV programs and books can do with them.

To this end, DVDs bought in one country sometimes can't be played on players bought in another. Buyers of songs from Apple Computer's iTunes Music Store are subject to tight restrictions on how often they can copy the songs to CDs or computers. Hollywood is asking Congress for restrictions on the design of TV recorders like TiVos, so that consumers will have to pay a fee for each recorded show.

Plainly, the media companies are engaged in an all-out attack on the principle of "fair use."

Fair use is a legal limit on the rights of copyright holders. It's a compromise: In return for the exclusive right to profit from the initial sale of a work for a given term (in the U.S., up to 70 years after the death of the creator), the copyright holder allows some non-commercial copying, limited quotation by critics, parodies and a few other uses.

Media companies detest fair use. They regard your ability to make a backup copy of a CD as a lost opportunity to sell you a new disc. They worry that a song parody by "Weird Al" might be mistaken in a store for the real thing. They don't understand why a critic with the knives out for a book should be permitted to quote from it in a review. If they had their druthers, you'd pay them a few bucks every time you played a DVD at a party or put songs on a mix CD to give to a friend.

Fair-use rules are constantly changing because new uses keep emerging, and then landing in court. In perhaps the most famous case, the Supreme Court ruled in 1984 that recording a TV show at home to watch later, or "time-shifting," is fair use. The justices rejected the movie studios' demands for a ban on the pioneering Betamax videocassette recorder and for damages from Sony, its manufacturer. (This was years before Sony, as a copyright owner, landed on the other side of the fair-use debate.)

The next court case might well involve Google Print, the search company's proposal to scan the full texts of millions of published books into its database. A search would return only a few sentences of context on either side of a search term, but the publishing industry has already called this process a potential copyright violation.

It's true that copying entertainment content is much easier today than it was in the days of analog LPs and audio cassettes. Back then, you couldn't easily distribute copies of a song or movie to millions of strangers. Moreover, every copy you made was less crisp than the original.

Today, a digital copy of a digital content file is identical to the original and every file can be exposed almost instantaneously to the entire world online. That's a prospect the entertainment companies say could cost them billions.

Yet, it's a mystery why anyone believes the entertainment companies' claims about their losses from online piracy, given their record of ludicrously inflating the dangers of earlier technologies.

Consider the studios' long campaign against home VCRs. In 1982, Jack Valenti, then president of the Motion Picture Assn. of America, wrote himself into the history of cocksure misprediction by warning a congressional committee that "the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone." He demanded a steep tax on recorders and blank tapes, to compensate for the damage they would do to Hollywood.

We all know the punch line: The movie industry survived, nay, thrived in the VCR era. Most VCR buyers used them exactly as the Supreme Court anticipated — to tape TV shows for viewing a few hours later. Rates for commercial airtime didn't fall, and the VCR didn't make free TV disappear.

Are today's technologies any different? CD sales have declined in the years since free file sharing became possible, but there's evidence that this has more to do with the dearth of exciting new acts than with Napster and its successors. Bootleg songs and video clips often enhance, not suppress, interest in the commercial product.

The industry wants our money, but they also want to dictate all the ways we can use their products once we own them. As the copyright expert Lawrence Lessig says, this "permission culture" will only make us less free. In short, the media moguls are making arguments that we shouldn't buy.

from ArsTechnica.com, 2005-Dec-18, by Eric Bangeman:

"Analog hole" legislation introduced

A frightening bit of legislation was introduced to the US House Judiciary Committee on Friday. The Digital Transition Content Security Act of 2005 (PDF) is sponsored by Rep. Jim Sensenbrenner (R-WI) and Rep. John Conyers (D-MI) (PDF) and would close that pesky analog hole that poses such a dire threat to the survival of the music and movie industries. The bill was originally planned for introduction in early November, but was tabled after hearings held by the House Subcomittee on Courts, the Internet, and Intellectual Property.

Calling the ability to convert analog video content to a digital format a "significant technical weakness in content protection," H.R. 4569 would require all consumer electronics video devices manufactured more than 12 months after the DTCSA is passed to be able to detect and obey a "rights signaling system" that would be used to limit how content is viewed and used. That rights signaling system would consist of two DRM technologies, Video Encoded Invisible Light (VEIL) and Content Generation Management System—Analog (CGMS-A), which would be embedded in broadcasts and other analog video content.

Under the legislation, all devices sold in the US would fall under the auspices of the DTCSA: it would be illegal to "manufacture, import, offer to the public, provide or otherwise traffic" in such products. It's a dream-come-true for Hollywood, and in combination with a new broadcast flag legislation (not yet introduced) would strike a near-fatal blow to the long-established right of Fair Use.

According to Reps. Sensenbrenner and Conyers, the legislation is absolutely necessary because of the dire threat PCs and the Internet pose to the content-creation industry's very livelihood. Apparently, it's not nimble enough to keep up with advances in technology. Says Rep. Conyers:

"As one of our most successful industries, it is important that we protect the content community from unfettered piracy. One aspect of that fight is making sure that digital media do not lose their content protection simply because of lapses in technology. This bill will help ensure that technology keeps pace with content delivery."

Ah, yes. The piracy bogeyman. In the same press release, Rep. Sensenbrenner points out that a "software pirate" in Alexandria, Virginia pled guilty to "making $20 million in sales of counterfeit intellectual property." However, the honorable representative from Wisconsin fails to understand that the software market relies on a completely different distribution model than does broadcasting, instead choosing to throw big numbers around in an attempt to make this misguided bill sound like it makes some small shred of sense for consumers.

Reading through the proposed text of the DTSCA, it is easy to see the hand of the MPAA at work. The proposed legislation defines four "Technical Content Protection Responses" that consumer devices will have based on the type of signal transmitted in a broadcast.

• Copy Prohibited Content, which would mark the transmission as off limits for copying or recording of any kind
• Copy Unlimited No Redistribution Content, which means that the analog content could be passed through to a digital device for copying, but redistribution would be limited
• Copy One Generation Content, which would allow viewers to make a single generation of copies
• No Technical Protection Applied, programming that could still be recorded.

It doesn't take too much imagination to see where this is headed.

Once the MPAA and pals have their way, you're going to pay through the nose for even the most basic of Fair Use rights. You're going to pay for the right to rewind and "re-experience" content. The Copy Prohibited Content class, complete with its asinine insta-delete feature is nothing but a back door into attacking what the content industry hates most: your ability to timeshift content.

And this bill is ridiculously hard on timeshifting. Section 201 (b) (1) of the DTCSA gives you all of 90 minutes from the initial reception of a "unit of content" to watch your recordings. Heaven forbid you get a long phone call or an unscheduled visit from a neighbor when you're engaged in some delayed viewing—once that 90-minute window closes you're out of luck until the next broadcast.

Our Fair Use rights have been on the endangered list for the past several years, and the passage of this legislation would mark a habitat loss so severe that it would threaten the very survival of the species. No matter what the MPAA and RIAA tell us, it's not about piracy. It's about squeezing every last dollar out of our pockets if we want to do anything other than watch a live broadcast.

This is bad legislation for everyone except Hollywood and its lackeys. If you are represented by a member of the House Committee on the Judiciary, contact him or her and make your feelings known. Given what's at stake here, expressing your views to your congressional representative and senators is an excellent idea as well.

from ArsTechnica.com, 2005-Dec-27, by Anders Bylund:

DRM vs. fair use, and why you're caught in the crossfire

If Black Friday and Cyber Monday didn't sate your shopping hunger this holiday season, Wired Magazine can think of one more reason to go on a consumer electronics shopping spree, and soon: "2005 might be the last good year to get gizmos that aren't locked down." They are, of course, referring to the ongoing efforts by the RIAA and the MPAA to plug every last leak in their safeguards against unauthorized use and copying of their precious content. For fear of lawsuits or in anticipation of coming legislation, our gadgets are dropping consumer-friendly features—like copying media off of a ReplayTV box or ripping backups of retail CDs—at an alarming pace. We're right in the middle of a paradigm shift for the entertainment industry, and the big players are responding to the changes the only way they know how, which is to tighten their grubby little fists around what they consider their greatest treasures. If you buy Neil Diamond's 12 Songs, Sony BMG wants to tell you how and where you can play it, if at all.

Clearly, Sony has come a long way since defending fair use rights all the way to the Supreme Court in 1979. One might expect Sony and its peers to leaf through the history books and learn from changes past. The VCR was hardly the death of the movie industry. Rather, it became a new and impressive revenue source, and the same thing happened with cassette tapes. The occasional sale that was lost to people taping movies off of broadcast TV was more than offset by the burgeoning rental industry, and the recording function just widened the reach of prerecorded tapes as the machine turned out to have multiple uses.

So how different is the situation today? One could argue that since digital copies are perfect, and can be made in mass quantities at low cost, we're not dealing with the rights of the individual customer making better use of their resources, but with the mass duplication and unauthorized distribution of pirated material, of which the producers don't get a cut. That's how the issue is presented to the courts and to various government branches. But the issue really isn't about copyright, it's about cold, hard cash, and Electronic Frontier Foundation staff attorney Fred von Lohmann puts it rather succinctly:

"Consumers need to ask themselves, 'Who are these features are being built for: me or Hollywood?'"

You wouldn't think it odd to pay twice for Batman Begins today, would you? Ten bucks at the theater, and another sixteen or so for the DVD. That's the spirit! Then let's charge for it a couple more times: PSP maybe, and the enhanced HD DVD version, not to mention the streamed online delivery sometime in the murky future. Then there's first-run syndication through Showtime and HBO, and a couple of years later, the second run through CBS or Fox. None of these income streams would keep flowing if we could just pay for the content once and use it in whatever manner we choose to.

You can see why the studios are a little jumpy, perhaps. They need Congress to protect their business model by passing laws that protect the multiple payments each movie or song is supposed to bring in, in their view. But the important thing to note is that the laws under proposal go beyond protecting the double-dipping, and into extending it. Laws such as the DMCA will make it possible for the movie studios to charge us extra money for "managed copies" of next-gen DVDs we buy, when we should be free to make digital copies for personal use for free. These kinds of anti-consumer laws are being justified by appeals to piracy, but the real interest is in nickels and dimes.

But before you take Wired's advice and head out shopping, keep a few things in mind. Nothing you can buy today can get you around the DMCA's anti-circumvention provisions if you live in the US, and that means that we're left with bupkis for legal options for handling DVD content. Furthermore, rushing out to buy new electronics could mean you're left with a dud, because by the looks of it, the next-generation optical video formats will have protection built-in such that non-compliant video pathways and displays could result in media failing to play, or playing at lesser quality (see Ken's story on how this will work in Windows, but note that Windows won't be the only OS affected by this). The moral of the story is that if you're sick and tired of this garbage, heading out to buy more products won't send a message, and it won't necessarily solve any problems for you. Your best bet is to vote with your wallet, and speak to your representatives.

from TheInquirer.net, 2006-Jan-23, by Charlie Demerjian:

DRM is a complete lie
It has never protected a single thing

DRM IS A LIE. When an agenda driven DRM infection peddler gets on a soapbox and blathers about how it is necessary to protect the BMW payments of a producer who leeches off the talented, rest assured, they are lying to you. DRM has absolutely nothing to do with protecting content, it is about protecting the wallets of major corporations. The funny thing is they aren't protecting it from you, they are protecting it from each other.

Let's look at the shattering success of every DRM solution to date. Every single one has failed. The score card is hundreds if not thousands against, zero for. Name me one song, movie or software title that is DRM infected that has not found it's way to the net within a week of release, usually long before release. There are none. To protect content, DRM is an abject and total failure, and will continue to be.

It also hurts the user - there is no DRM infection that in any way benefits the consumer. It costs more to develop, costs to license, makes hardware more expensive and complex, and screws the user under legitimate uses. It has a negative value to the consumer.

So, it makes content less attractive, less playable, and is legally dubious, so why is the industry hell bent on infecting everything from your prophylactics to your computers? Simple, they want a bigger slice of the pie, and DRM is the way to get it. No, not bigger profit margins, the greedy bastards already do that with each format change, DRM infections are about edging each other out.

Here is the problem, every DRM infection is unique, patented, copyrighted, copywronged, and DMCAd ad nauseum, They protect their code in every way possible, and make it so you have to get their approval to use it. This is all done under the guise of protecting content, but that is a lie. If you are going to steal content, do you think violating another copyright on the DRM mechanism will make you lose more sleep? Not a chance.

If you are a rival company though, you can't really violate such things and get away with it for long, Sony, MS and most people swiping GPLd code are proof of that. So, you have to license it to play ball, or at least play music and movies. That is the true nature of DRM infections, to keep other big greedy companies out.

So, say you are a big immoral record company that see walking wallets, aka customers, as not giving you enough of their hard earned money, some have the gall to buy from other big greedy immoral companies. Bastards! What do you do? Make sure they have a hard time playing things from the other guys.

Let's take a good example of this, the first few generations of Sony's DRM infected failures of an almost MP3 player. Sony decided that its proprietary ATRAC format was better than MP3, and technically it could be, but that is irrelevant. They didn't support MP3s out of the box, but would do a one way conversion if you wanted to put your MP3s on the Walkman. Taking them off was a bit curious though.

Also, if you wanted to buy music, you could go to the wonderful (sarcasm people, sarcasm) Sony connect store, and buy almost anything that Sony licensed artists made. If you wanted a song by a Warner artist, well, tough. Stepping into the land of make believe for a minute, imagine that Time-Warner made digital music players, and lets pretend they have an encoding system and DRM infection called HURT-SCAM. You can buy a TW player and download any HURT-SCAM song, curiously this meant only titles from a Warner artist. If you have a Sony player, it doesn't support HURT-SCAM, and TW players don't support ATRAC.

Now, if this hypothetical TW player wanted to play ATRAC, they could reverse engineer it, and get bitten by the same DMCA laws they bought so many Congresspeople to implement, and the same is true for Sony wanting to implement HURT-SCAM. (Please note, I am not intoning that these companies buy government, remember this is make believe. The US governmental system is immune to such things, just ask them.). Basically, both sides have to license their bitter rivals before they can interoperate.

Now, lets step back into the land of reality. You have ATRAC, FairPlay (har har), Real, WMA, and a host of other DRM infections, and none can play any of the others. If you have a player that can do one, chances are that it can't do any of the others, almost like the license terms preclude it, but it would take someone much more cynical than I to say that. You have enough walled gardens to last a lifetime, and each one is filled with greedy execs trying to wrap their mind around how much money this will bring them. The stakes are high, they each want it all, and want all the others to go away, there is no middle ground.

The enforcement mechanism is quite simply the DRM infection Without DRM, the other guys could invade their garden and do thing that might benefit the user, I mean take away the profits they feel are rightfully theirs. In the mean time every piece of media thus 'protected' is available for download. DRM has done, is doing and will do nothing to stop piracy.

Basically, you and I are the innocent bystanders in this drive by shooting called DRM. The big companies are at war, and we are the casualties. So, they have to send their flying monkeys to sue single moms, 12 year olds and octogenarians to make it appear that they are doing what they say. Bull, they are lying. The sad part is that the public, and worse yet, the governments are listening to them.

The misinformation campaign seems to have sunk in, people don't even question that DRM is about protecting content any more, even though it has never done so. It hurts the users, and hurts the companies making it, but they have their eyes on the big prize. DRM infections are the only way to keep their rivals at bay, lobbing a few bullets at the users is a low price to pay for that.

from IEEE Spectrum, 2006-Jan, by Stephen Cass:

Antipiracy Software Opens Door to Electronic Intruders
Sony BMG shoots itself—and its customers—in the foot

Last November, Sony BMG Music Entertainment was forced to recall millions of CDs in a public relations and computer security disaster. Copy-protection software that the New York City-based music label had incorporated into 52 albums created a back door into PC systems exploitable by viruses and other computer malware. When security researchers in the United States and Finland discovered the problem, Sony BMG's reaction was so bad that it will probably be seen in future years as a textbook example of a botched corporate response.

Early in 2005, Sony BMG began releasing albums equipped with copy-protection software known as XCP, developed by an Oxfordshire, England, company called First 4 Internet Ltd. More than 2.1 million of these CDs were sold.

While the CDs can be played normally on a regular CD player, consumers wishing to play them on a PC must use a proprietary music player, also included on the disk. Using this music player prevents consumers from converting their CDs to MP3 files for play on popular portable digital music devices, such as the iPod, or from uploading the files to peer-to-peer Internet file-sharing networks, where copyright piracy is ubiquitous.

XCP prevents users from bypassing Sony BMG's music player by permanently overriding some functions of the operating system (OS). To conceal these changes, the XCP software uses a technique typically seen only in the employ of black-hat hackers, a so-called rootkit. Rootkits first appeared as stealth viruses in the 1990s, explains Mark Russinovich, the security researcher whose blog entry on 31 October kicked off the public controversy surrounding the XCP software. "A rootkit cloaks the presence of files from security and other software....it's implemented by modifying parts of the OS." says Russinovich. "You can't manage it...you can't even get rid of it."

In XCP's case, when a user first inserts a copy-protected CD into a PC, the user is automatically prompted to install the music player. Installed at the same time is the rootkit, which is designed to hide the existence of any file or folder whose name begins with "$sys$."

The copy-protection software is then hidden in such a folder, and the OS is altered so that when a user tries to access a CD using normal system commands, the request is first passed on to the cloaked software, which checks to see if the CD is supposed to be copy-protected. If it is, the access attempt is blocked; otherwise, the request is passed on to the original OS function that handles reading CDs.

With the rootkit hiding any software that is prefixed by "$sys$," it creates "this huge hole in the system, which could be used by any hacker, any virus writer, to hide anything they want," explains Mikko Hyppönen, chief research officer of F-Secure Corp., a computer security firm based in Helsinki, Finland. Because the XCP software had already been installed in at least hundreds of thousands of computers, F-Secure decided not to make a public announcement when it became aware of the problem in early October for fear of tipping off virus writers.

Hyppönen claims F-Secure presented Sony BMG with its concerns that the rootkit could be used to hide malware on 7 October, but the music label "did nothing concrete until it was on the front page of USA Today."

A Sony BMG insider acknowledges that the label was contacted in early October by F-Secure and says it referred F-Secure to First 4 Internet. But this source claims that security issues were not raised by F-Secure to Sony BMG until mid-October, when it was agreed that F-Secure and First 4 Internet would "work together toward a solution." (First 4 Internet declined to comment.) After Russinovich announced the problem, it took only nine days before F-Secure began seeing malware that exploited the XCP cloak.

Once the story broke, Sony BMG's inexperience with software and security issues showed, when Thomas Hesse, president of global digital business for Sony BMG said on 4 November on National Public Radio's "Morning Edition": "Most people don't even know what a rootkit is, so why should they care about it?"

One party that cares is the U.S. Department of Homeland Security, which includes cybersecurity as part of its portfolio. On 10 November, as reported by the Washington Post, Stewart Baker, assistant secretary for homeland security, made a pointed reference to the Sony BMG protection system, noting that companies need "to remember that it's your intellectual property—[but] it's not your computer." Baker went on to say that "in the pursuit of protection of intellectual property, it's important not to defeat or undermine the security measures that people need."

Not only the federal government but state courts, too, are concerned. Texas Attorney General Greg Abbott has filed a lawsuit against Sony BMG for violating the state's anti-spyware laws, and several consumer rights organizations and law firms are considering class-action suits.

Sony BMG initially offered consumers a complex multistep process to uninstall the rootkit, but this provoked another round of security and privacy concerns. Finally, Sony declared that it had halted production of XCP-protected CDs and on 18 November offered to exchange XCP CDs for regular CDs.

The details of the exchange program can be found at http://cp.sonybmg.com/xcp. Ironically, the site also offers the option of downloading affected albums in the format the label had been dreading all along—MP3.

from TheInquirer.net, 2005-Dec-29, by Nick Farrell:

Google sued for talking
More patent issues

ONLINE SEARCH outfit Google is being sued over the Voice over IP version of its Google Talk software.

According to Gary Price of Search Engine Watch an outfit called Rates Technology has filed the complaint in New York.

Basically, Rates Technology says it has two patents for minimising the cost of long distance calls using the Internet. The main patent is 5,425,085.

There is an interesting interview with Rates Technology CEO, Jerry Weinberger. here.

Rates has sued Nortel, Sharp and others over patents it holds and has gone to court more than 25 times in the last 15 years to defend them. It generally asks for a one off payment to go away.

Weinberger is reported as saying that to take his company on you need a million dollars in legal fees just to start. The smaller companies are more likely to resist, he said.

from the Associated Press, 2006-Jan-24, by Michael Liedtke:

Google Agrees to Censor Results in China

SAN FRANCISCO -- Online search engine leader Google Inc. has agreed to censor its results in China, adhering to the country's free-speech restrictions in return for better access in the Internet's fastest growing market.

The Mountain View, Calif.-based company planned to roll out a new version of its search engine bearing China's Web suffix ".cn," on Wednesday. A Chinese-language version of Google's search engine has previously been available through the company's dot-com address in the United States.

By creating a unique address for China, Google hopes to make its search engine more widely available and easier to use in the world's most populous country.

Because of government barriers set up to suppress information, Google's China users previously have been blocked from using the search engine or encountered lengthy delays in response time.

The service troubles have frustrated many Chinese users, hobbling Google's efforts to expand its market share in a country that expected to emerge as an Internet gold mine over the next decade.

China already has more than 100 million Web surfers and the audience is expected to swell substantially - an alluring prospect for Google as it tries to boost its already rapidly rising profits.

Baidu.com Inc., a Beijing-based company in which Google owns a 2.6 percent stake, currently runs China's most popular search engine. But a recent Keynote Systems survey of China's Internet preferences concluded that Baidu remains vulnerable to challenges from Google and Yahoo Inc.

To obtain the Chinese license, Google agreed to omit Web content that the country's government finds objectionable. Google will base its censorship decisons on guidance provided by Chinese government officials.

Although China has loosened some of its controls in recent years, some topics, such as Taiwan's independence and 1989's Tiananmen Square massacre, remain forbidden subjects.

Google officials characterized the censorship concessions in China as an excruciating decision for a company that adopted "don't be evil" as a motto. But management believes it's a worthwhile sacrifice.

"We firmly believe, with our culture of innovation, Google can make meaningful and positive contributions to the already impressive pace of development in China," said Andrew McLaughlin, Google's senior policy counsel.

Google's decision rankled Reporters Without Borders, a media watchdog group that has sharply criticized Internet companies including Yahoo and Microsoft Corp.'s MSN.com for submitting to China's censorship regime.

"This is a real shame," said Julien Pain, head of Reporters Without Borders' Internet desk. "When a search engine collaborates with the government like this, it makes it much easier for the Chinese government to control what is being said on the Internet."

When Google censors results in China, it intends to post notifications alerting users that some content has been removed - to comply with local laws. The company provides similar alerts in Germany and France when, to comply with national laws, it censors results to remove references to Nazi paraphernalia.

Google is cooperating with China's government at the same time it is battling the U.S. government over a subpoena seeking a breakdown of one week's worth of search requests - a list that would cover millions of terms.

Reflecting its uneasy alliance with the Chinese government, Google isn't releasing all its services.

Neither Google's e-mail nor blogging services will be offered in China because the company doesn't want to risk being ordered by the government to turn over anyone's personal information. The e-mail service, called Gmail, creates a huge database of users' messages and makes them instantly searchable. The blogging services contain a wide range of personal background.

Yahoo came under fire last year after it provided the government with the e-mail account information of a Chinese journalist who was later convicted for violating state secrecy laws.

Initially, Google's Chinese service will be limited to searching Web pages and images. The company also will provide local search results and a special edition of its news service that will be confined to government-sanctioned media.