LibertyVoice

Amazon has caved into demands from the Authors Guild that it disable the ability of the Kindle to read a book aloud. This is very bad news.

We had this battle before. In 2001, Adobe released e-book technology that gave rights holders (including publishers of public domain books) the ability to control whether the Adobe e-book reader read the book aloud. The story got famous when it was shown that one of its public domain works — Alice’s Adventures in Wonderland — was marked to forbid the book to be read aloud. (Here’s a piece I wrote about this in 2001).

Now the issue is back. The Authors Guild has objected because Amazon’s Kindle 2 has a function built in that enables the book to be read aloud. So when, for example, you’re commuting, you can plug your Kindle 2 into your MP3 jack and have the book read aloud.

Amazon rightly argued that this did not violate any of the exclusive rights granted by copyright law to the copyright owners. In that, Amazon is exactly right. But nonetheless, it will now enable publishers to decide whether the Kindle books they sell will permit the book to be read aloud. And of course, that includes public domain books.

So here we go again — How long till we can buy Alice’s Adventures in Wonderland and be told that this book “cannot be read aloud”?

But the bigger trend here is much more troubling: Innovative technology company (Amazon (Kindle 2), Google (Google Books)) releases new innovative way to access or use content; so-called “representatives” of rights owners, Corleone-like, baselessly insist on a cut; innovative technology company settles with baseless demanders, and we’re all arguably worse off.

We’re worse off with the Kindle because if the right get set by the industry that publishers get to control a right which Congress hasn’t given them — the right to control whether I can read my book to my kid, or my Kindle can read a book to me — users and innovators have less freedom. And we may be worse off with Google Books, because (in ways not clear when the settlement was first reported) the consequence of the class action mechanism may well disable users and innovators from doing what fair use plainly entitled Google to do.

Roy Blount Jr., writer and president of the Author’s Guild, has a jeremiad in the New York Times about Amazon’s Kindle, and its ability to read books aloud. Blount thinks that is a violation of authors’ rights. After giving some thought to his argument, I can only conclude that Blount should stick to sports, because [...]

Carl Malamud has launched — and we all should support — a campaign to become head of the GPO. I can’t imagine a more exciting appointment. Sometimes an agency needs STASIS. Sometimes it needs CHANGE. Gov’t tech is certainly in the second category, and no one I know of could more effectively deliver on the commitment to open government than he.

Join the campaign.

Next week, I’ll be participating in and speaking at Journalism that Matters: Adapting Journalism to the New News Ecology, a conference organized by the Poynter Institute and Media Giraffe Project. It’s the latest in a series of Journalism that Matters gatherings that bring together reporters, editors, publishers, and new media innovators in loosely structured un-conference formats focused on fostering deep conversations about the future of journalism. 

Here is the call to action from the folks at Poynter:

Poynter and JTM want you to help create, define and populate the next digital newsroom wherever it takes root. Come help us:

• Give names and shape to new jobs — community dialogue manager, multimedia storyteller, database investigate reporter, mobile content designer and more.
• Understand how to master the new tools of the trade — beat blogs, widgets, search engine optimization and social networks.
• Define and refine the changing relationships among those who need the news, contribute to the news and rate the news.
• Navigate the changing culture and language of news organizations with their increasing mix of digital natives and those with insitutional memory.
• Appreciate the ripple effects of the changing news ecology on other sectors and what that means for getting news to those who need it.

You can view the agenda, in wiki format, here.

The conference will be in St. Petersburg, Florida (can you say spring training!) and runs from March 1-4, 2009.  I’ll be discussing various topics related to citizen media and the law throughout the week.  On Monday at 1:00pm, I’ll also be leading a live online chat entitled Legal Issues Facing Journalists in the Digital Age.  Feel free to join the chat and lob me softball questions. 

If you plan to be in the St. Petersburg area, please consider signing up for the conference.

The purpose of copyright is to "promote progress."  We achieve this promotion by giving authors a limited monopoly over their works so that they may profit from them. This is what is known as "the incentive theory."  If we give authors the incentive to create works, they will create more of them, thus adding ideas and expression to the marketplace.  On the other hand, we don’t give copyright protection to mere facts. It makes sense, because the facts rightfully belong to all of us.  Expanding copyright protection to mere facts would lead to the marketplace of ideas looking like a downtown after the Mega-lo-Mart opens up in the suburbs.

Nevertheless, we do all benefit from news organizations hard work in bringing us the facts.  If anyone can just free ride off of the Associated Press’ work, then eventually they are going to stop providing them to us.  After all, the AP is a business, and as much public service as they provide, they are not a charity.

I read an excellent law review article on this subject a while back. See Ryan T. Holte, Restricting Fair Use to Save the News: A Proposed Change in Copyright Law to Bring More Profit to News Reporting.  Suffice to say that I get Holte’s point, and I agree with the argument that the public is better served if there are news organizations competing to get the hottest news — and they should be incentivized to do so.

It looks like Holte’s theory gained a little traction this week. The Prior Art reports on Associated Press v. All Headline News Corp. and the Southern District of New York’s finding that the AP might have a viable case for "hot news appropriation" if:

(i) a plaintiff generates or gathers information at a cost;

(ii) the information is time-sensitive;

(iii) a defendant’s use of the information constitutes free riding on the plaintiff’s efforts;

(iv) the defendant is in direct competition with a product or service offered by the plaintiffs;

(v) the ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. (Source)

In International News Service v. Associated Press, 248 U.S. 215 (1918), the U.S. Supreme Court supported a similar theory, and in National Basketball Ass’n v. Motorola, 105 F.3d 841 (2nd Cir. 1997), the Second Circuit relied upon INS v. AP in holding that the "hot news doctrine" was something separate from copyright:

INS is not about ethics; it is about the protection of property rights in time-sensitive information so that the information will be made available to the public by profit-seeking entrepreneurs. If services like AP were not assured of property rights in the news they pay to collect, they would cease to collect it. The ability of their competitors to appropriate their product at only nominal cost and thereby to disseminate a competing product at a lower price would destroy the incentive to collect news in the first place. The newspaper-reading public would suffer because no one would have an incentive to collect "hot news." We therefore find the extra elements - those in addition to the elements of copyright infringement - that allow a "hot-news" claim to survive preemption are: (i) the time-sensitive value of factual information, (ii) the free-riding by a defendant, and (iii) the threat to the very existence of the product or service provided by the plaintiff. (Source)

I am certainly uncomfortable with any suggestion that the news can belong to any single author. On the other hand, I would hate for the marketplace for hot news and investigative reporting to close down due to an inability to profit from it. Holte’s suggestion includes amending the Copyright Act:

[T]he amended provision should include these key points: (1) the protection would not extend to traditional news headlines—to allow third parties the ability to advertise a competitors story and link to it; (2) the protection would only last for twenty-four hours—so that after a reporter has realized a profit in his story, the story could subsequently be reproduced freely to allow the dissemination of ideas; and (3) the reporter’s rights in the story could not be used to restrict a purely nonprofit organization from posting the story. As with all laws, the enforcement and refinement of their meaning must come from the courts, with clear legislative intent from Congress as a guide. The legislative intent in this case would be clear in that Congress would be legislating to encourage news reporting by allowing reporters temporary rights in their stories, yet still allowing the dissemination of ideas by making the monopoly rights temporary and not comprehensive. (Source)

Holte’s suggestion has some potentially troublesome First Amendment implications, which his article recognizes. But, this case gives some attention to the debate that Holte sought to begin — we obviously have a problem that needs to be cured — so hopefully this dialogue will heat up before the news agencies decide that it is no longer profitable to bother serving their Fourth Estate function.

Earlier this month, Facebook quietly changed its terms of service and waded into what I will call the “control wars” over personal information. Facebook’s changes would enhance its control over users posted information, including material that h…

Earlier this month I testified in Gusciora v. Corzine, the trial in which the plaintiffs argue that New Jersey’s voting machines (Sequoia AVC Advantage) can’t be trusted to count the votes, because they’re so easily hacked to make them cheat.

I’ve previously written about the conclusions of my expert report: in 7 minutes you can replace the ROM and make the machine cheat in every future election, and there’s no practical way for the State to detect cheating machines (in part because there’s no voter-verified paper ballot).

The trial started on January 27, 2009 and I testified for four and a half days. I testified that the AVC Advantage can be hacked by replacing its ROM, or by replacing its Z80 processor chip, so that it steals votes undetectably. I testified that fraudulent firmware can also be installed into the audio-voting daughterboard by a virus carried through audio-ballot cartridges. I testified about many other things as well.

Finally, I testified about the accuracy of the Sequoia AVC Advantage. I believe that the most significant source of inaccuracy is its vulnerability to hacking. There’s no practical means of testing whether the machine has been hacked, and certainly the State of New Jersey does not even attempt to test. If we could somehow know that the machine has not been hacked, then (as I testified) I believe the most significant _other_ inaccuracy of the AVC Advantage is that it does not give adequate feedback to voters and pollworkers about whether a vote has been recorded. This can lead to a voter’s ballot not being counted at all; or a voter’s ballot counting two or three times (without fraudulent intent). I believe that this error may be on the order of 1% or more, but I was not able to measure it in my study because it involves user-interface interaction with real people.

In the hypothetical case that the AVC Advantage has not been hacked, I believe this user-interface source of perhaps 1% inaccuracy would be very troubling, but (in my opinion) is not the main reason to disqualify it from use in elections. The AVC Advantage should be disqualified for the simple reason that it can be easily hacked to cheat, and there’s no practical method that will be sure of catching this hack.

Security seals. When I examined the State’s Sequoia AVC Advantage voting machines in July 2008, they had no security seals preventing ROM replacement. I demonstrated on video (which we played in Court in Jan/Feb 2009) that in 7 minutes I could pick the lock, unscrew some screws, replace the ROM with one that cheats, replace the screws, and lock the door.

In September 2008, after the State read my expert report, they installed four kinds of physical security seals on the AVC Advantage. These seals were present during the November 2008 election. On December 1, I sent to the Court (and to the State) a supplemental expert report (with video) showing how I could defeat all of these seals.

In November/December the State informed the Court that they were changing to four new seals. On December 30, 2008 the State Director of Elections, Mr. Robert Giles, demonstrated to me the installation of these seals onto the AVC Advantage voting machine and gave me samples. He installed quite a few seals (of these four different kinds, but some of them in multiple places) on the machine.

On January 27, 2009 I sent to the Court (and to the State) a supplemental expert report showing how I could defeat all those new seals. On February 5th, as part of my trial testimony I demonstrated for the Court the principles and methods by which each of those seals could be defeated.

On cross-examination, the State defendants invited me to demonstrate, on an actual Sequoia AVC Advantage voting machine in the courtroom, the removal of all the seals, replacement of the ROM, and replacement of all the seals leaving no evidence of tampering. I then did so, carefully and slowly; it took 47 minutes. As I testified, someone with more practice (and without a judge and 7 lawyers watching) would do it much faster.

Next Wednesday, the Cyberspace Law and Policy Centre at the University of New South Wales will hold a workshop on Internet filtering and censorship in Australia. It’s got a terrific panel of experts from AusCERT, Brilliant Digital, Inspire, and the National Children’s and Youth Law Centre (among others), and also me. So, if you’re going [...]

Reacting to online criticism of its elected officials, the city of Deltona, Florida has authorized city employees to file libel lawsuits at taxpayers’ expense.  On February 16, City commissioners voted 4-3 to pass this resolution:

After discussion, the Commission voted 4 to 3 (Commissioner Denizac,
Commissioner McFall-Conte, and Commissioner Zischkau voted against the
motion) for the City to provide reimbursement and expenditures of legal
fees to protect both proactively and reactively the City as a
government including its employees and its Mayor and those members who
wish to be represented in the this motion, Commissioner Treusch,
Commissioner Deyette, Vice Mayor Carmolingo and Mayor Mulder where
needed from material damages, slanderous or libelous comments or claims
and unsubstantiated allegations past, present and future where the
Mayor feels is needed and that a report of fees expended be made
available to the public so they may see the extent of damage that has
been caused.

Note that the resolution authorizes taxpayer funded litigation to address "slanderous or libelous comments or claims and unsubstantiated allegations past, present and future where the Mayor feels is needed." (emphasis added).  Unsubstantiated claims?!  So if I opine that the Mayor is a megalomaniac hell-bent on stifling criticism and I don’t substantiate that claim, he can file a lawsuit against me and force city residents to foot the bill?  It appears so. (It appears that I was wrong about his being a megalomaniac; see my update below.)

According to the Orlando Sentinel:

The motion, which passed by a vote of 4-3 late Monday, was proposed by
Mayor Dennis Mulder, who said that an organized group of residents has
ventured from the usual political mudslinging and is spreading outright
lies that must be stopped. Mulder threatened to resign if his motion
wasn’t approved.

As Eugene Volokh notes, the First Amendment doesn’t bar government agencies from bringing or funding such lawsuits.  Nevertheless, he remarks that "this strike me as a bad idea, especially since the city doesn’t offer to fund the defense of such libel lawsuits, even though defense of the lawsuits — especially a successful defense — may also serve government interests: Speech that accurately criticizes city officials serves city interests, too, by alerting the public to possible malfeasance by government officials."

Not surprisingly, some residents are considering legal action to reverse the resolution.  The Orlando Sentinel reports:

One person who has hired an attorney is Deltona resident Jeff Ensminger, who runs a community Web site called DeltonaBonaFide.com. Ensminger, one of the mayor’s harshest critics, said Mulder needs to channel his efforts toward improving Deltona, not filing lawsuits. "He needs to stop blaming citizens for his failure and focus on city business," Ensminger said.

Perhaps the City’s money would be better spent improving its website so that City officials can better communicate with residents and correct false information and unsubstantiated allegations before they cause the irreparable harm the Mayor fears.

UPDATE: According to a statement he issued today, Mayor Mulder plans to ask the City Council to immediately repeal the measure quoted above:

However much it may emotionally pain me to hear my family and colleagues attacked, it pains me even more to think that I could have unwittingly failed to consider the constitutional implications of my actions. Accordingly, I am taking my First Amendment attorney’s opinion to heart and asking that the City Council immediately repeal the measure that we passed. In order to make this a great city, we must all begin on common ground, and that common ground is respect for the Constitution of the United States.

You don’t often see public officials issue a mea culpa like this.  Most lack the humility and good sense to back down in the face of public criticism. It’s worth your time to read his entire statement, which clearly took guts to issue.

One other point that is worth mentioning is that local officials typically rely on
their municipal attorney, who often has little background in the First Amendment, when they make these decisions. It’s rare for elected officials to ask for a
second opinion from experienced First Amendment counsel.  My hat’s off to Mayor Mulder for doing the right thing here.

Thanks to Lyria and all of the previous bloggers for their many thought-provoking posts. We’re now in the home stretch with two bloggers left to go.Our next blogger, Lisa Austin from the University of Toronto, conducts research in areas that include p…